KANCHAN KUMARI LUNIA Vs. RAJASTHAN HOUSING BOARD

JUDGEMENT

(1.) The plaintiff-petitioner filed a suit for declaration, possession and permanent injunction against the defendant- non-petitioner in respect of house No. 18-Ka-l(Ground Floor) situated in (Lalkothi) Jyoti Nagar, Housing Board Scheme.

(2.) The suit was filed on 23.9.83. In. the suit the plaintiff-petitioner prayed that after making allotment of House No. 21K-6(First Floor), she was asked to give option for allotment of alternate house in view of the fact that the house earlier allotted to her was to be used for allotment to the employees of the Rajasthan High Court. Jaipur Bench, Jaipur. After a lot of correspondence, the petitioner was allotted house No. 18Ka-l (Ground Floor). The petitioner has claimed that she has fulfilled all the requirements and has a right to get possession of the house. However, the non-petitioner has raised an unlawful demand in the form of penalty.

(3.) The summons of the case were served on the non- petitioner as early as in January, 1984. Written statement was filed on behalf of the non-petitioner on 19.4.86. Issues were framed on 5.10.87 and the case was fixed for 8.12.87 for the evidence of the plaintiff-petitioner. Thereafter, the case was transferred from the Court of Additional Civil Judge and Additional Chief Judicial Magistrate, Jaipur City, Jaipur, to the court to Additional Chief Judicial Magistrate, No. 1, Jaipur City. On 19.7.89, the case was adjourned for reply and arguments on an application filed by the plaintiff-petitioner under Order 11 Rule-14 CPC. On 8.12.89 Shri Arjun Tolani, counsel for the non-petitioner in the trial court filed an application and sought adjournment on the ground that he has not received the file of the case. The case was adjourned to 23.2.90. On that day, none appeared on behalf of the defendant-non-petitioner. The Court therefore, ordered that the case shall proceed ex parte. Thereafter, the proceedings were taken on 11.5.90, 24.8.90, 12.10.90, 8.11.90, 14.11.90, 4.1.91. On 28.1.91 the evidence on behalf of the plaintiff was recorded and the case was fixed for arguments on 15.2.91. On 15.2.91, the arguments were heard and the case was fixed for judgment on 26.2.91. The judgment could not be dictated on f 26.2.91, because, the Presiding Officer was busy in other cases. The Presiding Officer f was transferred and, therefore, the case was fixed for re-hearing on 22.3.91. Time was, J thereafter, sought on two dates by the counsel for the petitioner to advance the j arguments. On 3.5.91, an application under Order 9 Rule-7 was filed on behalf of j defendant-nonpetitioner. The case was adjourned on account of some condolence meeting on 25.5.91. On 22.7.91 neither the defendant nor anyone else appeared on its behalf and, therefore, the application filed on 3.5.91 on behalf of defendant-nonpetitioner was dismissed. The case was, therefore, fixed for arguments. Another application was thereafter, filed on behalf of the defendant-nonpetitioner on 5.10.91 for setting aside the order dated, 23.2.90 for ex parte proceedings. This application was accompanied by an affidavit of Shri Nand Lai Sharma, Assistant Housing Officer. In the application it has been stated that the Officer Incharge Shri Bhartendra Singh had been transferred and the file could not be given to the new Officer Incharge till 23.2.90, because, it was lying with the previous counsel. An application for setting aside ex parte proceedings was filed on 22.7.91. The Officer Incharge could not appear on account of his transfer to Kota and since the case had not entered in the diary of the Lawyer, he also could not appear before the Court. The non-appearance of the defendant-nonpetitioner was not intentional. A reply of this application was filed on behalf of the petitioner for opposing the request of the defendant-nonpetitioner. After hearing the parties learned Additional Civil Judge No. 1, Jaipur City, Jaipur, has vide his impugned order dated 15.11.91 allowed the application filed on behalf of the defendant- nonpetitioner. He has set aside the order dated, 23.2.90 on payment of costs of Rs. 500/-.