USHA AND OTHERS Vs. SANTOSH KUMARI AND ORS

JUDGEMENT

(1.) By virtue of instant civil revision petitioners/defendants have sought the setting aside of order dated January 14, 2013 (Annexure P-10) whereby, defence of petitioners No.1 to 3 was struck off and order dated February 22, 2013 (Annexure P-11) vide which, petitioners No.1 to 3 were proceeded against ex-parte as well as order dated March 21, 2013 (Annexure P- 12) passed by learned Civil Judge (Jr. Division), Panipat whereby, petitioners No. 4 and 5 were proceeded against ex-parte in a case titled Santosh Kumari and another v. Usha and others and their defence was struck off. Petitioners have further sought the setting aside of order dated August 31, 2016 (Annexure P-13) vide which an application moved by them for recalling the order dated January 14, 2013 and for setting aside the ex-parte order dated February 22, 2013 and March 21, 2013, passed by learned Civil Judge (Jr. Division), Panipat, was dismissed.

(2.) The contention of learned counsel for the petitioners is that the impugned order dated August 31, 2016 whereby an application moved by petitioners for recalling the order dated January 14, 2013 and for setting aside the orders February 22, 2013 and March 21, 2013 has been dismissed, is against the law and are liable to be set aside. In case the petitioners/contesting defendants are not allowed to join the proceedings and to file the written statements after setting aside the above-referred order(s), an irreparable loss and injury which the petitioners are going to suffer cannot be compensated in any way. In fact, respondents/plaintiffs played a fraud upon them. As per the assurance given by the respondents/plaintiffs, petitioners/defendants withdrew the suit preferred by them whereas, the respondents/plaintiffs did not withdraw their suit and continued with the same in which the various orders under challenge have been passed by the court concerned. Moreover, the suit filed by the respondents/plaintiffs is at initial stage and no prejudice would be caused in any manner to the respondents/plaintiffs and they can be compensated by way of cost.

(3.) Per contra, learned counsel for the respondents/plaintiffs have refuted the afore-said contentions put forth by learned counsel for the petitioners/defendants submitting that the petitioners/defendants remain negligent in defending their suit. They were under an obligation to file a written statement within a prescribed period of 90 days from the date of their service. Firstly, petitioners/defendants delayed the proceedings before the trial Court by evading their service. All the efforts were made by the respondents/plaintiffs to serve them through ordinary process and ultimately, the Court has to adopt the substituted services for getting the service effected upon petitioners/defendants. Even then, neither they filed written statement(s) nor they moved any application seeking for the extension of time beyond the period of 90 days of service effected upon them. The period prescribed under Order 8, Rule 1 of the Code of Civil Procedure (for short 'CPC') is to expedite the trial. The petitioners/defendants were proceeded against ex-parte after adopting due process and as such there is no ground either for setting aside the ex-parte proceedings or for setting aside the order whereby, their defence have been struck off.