GANESH MAL JAIN Vs. CIVIL JUDGE

JUDGEMENT

(1.) AT the request of learned counsel for the parties, the arguments were heard and writ petition is being disposed of finally. Briefly stated the facts of the case are that applicants-respondents no. 2 to 4 filed an application under Section 6 of the Act of 1957 in the trial court, wherein the notices were issued on 18th October, 2007. The case was again listed on 5th January, 2008. The applicants were present, but the notice of the non-applicant had not been received, therefore, the court passed a fresh order to issue fresh notice to the non-applicant. Subsequently, on the basis of earlier report dated 3rd January, 2008, an ex-parte order was passed against the non-applicant on 17th April, 2008. The nonapplicant moved an application for setting-aside the ex-parte proceedings under Order 9 Rule 7 CPC on 23rd April, 2008 itself. However, the said application was rejected by the trial court on 19th May, 2008. Being aggrieved with the same, the non-applicant has preferred this writ petition.

(2.) THE learned counsel for the petitioner contended that trial court committed an illegality in not allowing the application of the petitioner, which was filed within six days itself. He contended that the trial court, despite issuing fresh notice on 5th January, 2008, relied upon the earlier report dated 3rd january, 2008 while drawing the ex-parte proceedings, which was not proper.

(3.) THE learned counsel for the respondents no. 2 to 4 contested the writ petition and contended that initially the notices were issued on 18th October, 2007 and non-applicant refused to accept the same, therefore, it was reported by Assistant Nazir that service is complete, however, the notice was not received by the court in time, therefore, fresh notice was issued, whereas non-applicant had knowledge about pendency of the case. Therefore, the trial court was right in rejecting the application of the petitioner for setting-aside the ex-parte proceedings. He alternatively contended that in case this Court allows the application of the petitioner, then at-least a reasonable amount of cost be imposed.