PARMINDER SINGH Vs. JAGDEV SINGH

JUDGEMENT

(1.) THE challenge herein is to the order dated 23.3.2013 passed by learned Civil Judge (Junior Division), Court No. 2, Paonta Sahib, District Sirmaur in an application under Order 9 Rule 7 CPC, registered as CMA No. 204/6 of 2012 (Civil Suit No. 4/1 of 2012), dismissing thereby the said application being time barred and also on merits. The petitioner is defendant in the main suit pending disposal in the trial Court. The respondent -plaintiff is none else, but his father. The suit has been filed for the issuance of a direction mandatory in nature to defendant to deliver vacant possession of a portion of the house constructed over land entered in khata/khatauni No. 52/99 bearing khasra Nos. 11402 to 1406 corresponding to old khasra No. 1386/1028/825 situated in Up Sampada, Badrinagar, Tehsil Paonta Sahib, District Sirmaur which allegedly was given to him after his marriage in the year 2006 for residential purpose. Such relief has been sought on the ground that on account of interference by the wife of defendant, the relation between him and the plaintiff are not cordial and his wife has registered a case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 against the plaintiff. The suit is still at initial stage as despite three opportunities including the last and final on payment of Rs. 500/ - as costs, the defendant has failed to file written statement and rather allowed himself to be proceeded against ex -parte on 12.4.2012. It is to set aside the said ex -parte order, the application under Order 9 Rule 7 CPC was filed by the defendant. Annexed thereto was another application under Section 5 of the Limitation Act for condonation of delay as occurred in filing the application under Order 9 Rule 7 CPC.

(2.) THE delay was sought to be condoned on the ground, inter alia, that Shri Javed Khan, Advocate was representing him in the suit, who from time to time used to inform that he is putting appearance regularly in the suit. However, when on 2nd July, 2012, he enquired about the status of the suit from the counsel, the latter failed to answer satisfactorily, and as a result, he himself went to the Court and enquired about the status of his case where he came to know that he has been ordered to be proceeded against ex -parte on 12.4.2012.

(3.) HAVING gone through the record and analyzing the rival submissions, it is apparent that the failure of the defendant to file written statement despite opportunities including last and final subject to payment of Rs. 500/ - as costs granted for the purpose, has heavily weighed in the mind of learned trial Judge while declining the prayer for setting aside the ex -parte order. The factum of the defendant having filed application for setting aside the ex -parte order even after 21 days when he acquired the knowledge of dismissal of the suit, has also been given weightage while arriving at a conclusion that the application is time barred. I am not in agreement with the findings so recorded.