Piyush Khandelwal S/O Suresh ... vs Radheshyam S/O Chhaju Ram
2022 Latest Caselaw 5734 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 6383/2019

Piyush Khandelwal S/o Suresh Kumar, Aged About 48 Years, R/
O Anah Gate, Bharatpur, At Present Tenant Of Shop At Mandir
Gopal Ji Maharaj, Chipiyan Wasan Gate, Bharatpur Tehsil And
District Bharatpur.


                                                                  ----Petitioner


                                     Versus


1.     Radheshyam S/o Chhaju Ram, Aged About 84 Years, R/o
       Wasan Gate, Bharatpur.
2.     Radharaman S/o Sawaliya, Aged About 78 Years, R/o
       Namak Katra, Bharatpur.
3.     Jaswant Singh Nagar S/o Raghuveer Singh Nagar, Aged
       About 44 Years, R/o Wasan Gate, Bharatpur.
4.     Roshanlal S/o Dwarika Prasad, Aged About 69 Years, R/o
       Namak Katra, Bharatpur.
5.     Shri Krishan Nagar S/o Virwal Nagar, Aged About 55
       Years, R/o Wasan Gate, Bharatpur.
6.     Pramod Kumar S/o Ramesh Badshah, Aged About 56
       Years, R/o Wasan Gate, Bharatpur.
7.     Virujaldhara S/o Vishanlal, Aged About 48 Years, R/o
       Ghas Ki Mandi, Kotwali, Bharatpur.
8.     Roshanlal S/o Girraj Prasad, Aged About 83 Years, R/o
       Wasan Gate, Bharatpur.
9.     Jwaharlal S/o Babulal, Aged About 62 Years, R/o Namak
       Katra, Bharatpur.
10.    Ashok Kumar S/o Shivcharan, Aged About 64 Years, R/o
       Namak Katra, Bharatpur. Trustees Mandir Committee Shri
       Gopal Ji Maharaj Chipiyan Wasan Gate, Bharatpur Tehsil
       And District Bharatpur.


                                                                  -Respondents

For Petitioner(s) : Mr. Laxmikant Sharma, Adv. For Respondent(s) : Mr. Anshul Sharma, Adv.

                                         (2 of 5)               [CW-6383/2019]




          HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                   Order

23/08/2022

This writ petition has been filed by the petitioner, challenging

the order dated 08.01.2019, whereby application filed by the

petitioner-defendant under Order 9 Rule 7 for setting aside the

exparte proceedings dated 23.07.2018, has been dismissed.

Learned counsel for the petitioner submitted that the court

below on 23.07.2018, had drawn the exparte proceedings against

the petitioner.

Learned counsel submitted that the petitioner on knowledge

of the said exparte proceedings being drawn, immediately filed an

application, wherein request was made that the date which was

fixed by the Court i.e. 23.07.2018, was wrongly recorded by the

counsel for the petitioner as on 22.07.2018 and as such, the

petitioner had no intention to avoid his appearance or his counsel's

appearance in the Court.

Learned counsel submitted that in the said application, it was

also specifically pleaded that the father of the petitioner was also

undergoing treatment due to monkey bite and as such, during the

treatment of his father, the petitioner was unable to contact his

lawyer.

Learned counsel submitted that the court below has not

taken into account the relevant factors and in a mechanical

manner, has rejected the application filed by the petitioner for

setting-aside the exparte proceedings.

(3 of 5) [CW-6383/2019]

Learned counsel submitted that the petitioner is a tenant and

he wants to contest the issue on merits and in the interest of

justice, this Court after imposing reasonable cost on the petitioner,

may permit the exparte proceedings to be set-aside.

Learned counsel for the petitioner also places reliance on the

judgment passed by Coordinate Bench of this Court in the case of

Ashok Kumar Versus The Additional District Judge,

Prabatsar, District Nagaur, 2017 (3) Civil Court Cases 761

(Rajasthan).

Learned counsel on the strength of the said judgment,

submitted that the absence of the counsel for a litigant should not

come in way of dispensation of justice to the litigant and in these

matters, a lenient view is required to be taken.

Per contra, learned counsel-Mr. Anshul Sharma, appearing

for the respondents, submitted that the court below has not

committed any illegality in passing the order.

Learned counsel submitted that the exparte proceedings

were also drawn earlier against the petitioner and even decree

was passed against the petitioner somewhere in 2013 and the

court below adopting lenient view, had set-aside the exparte

proceedings on decree passed against the petitioner.

Learned counsel submitted that the petitioner would have

been prudent and his counsel should have been also vigilant in

attending the court proceedings.

Learned counsel further submitted that the court below has

rightly come to the conclusion that on previous occasion i.e.

02.06.2018, no one was present on behalf of the petitioner and

the plea of recording wrong date was also not correct as the

petitioner or his counsel, was not present on 22.07.2018.

(4 of 5) [CW-6383/2019]

Learned counsel further submitted that the plaintiff has filed

suit for eviction and same is pending since 2011 and even after a

earlier decree in favour of the respondents, the petitioner is

delaying the suit proceedings on one pretext to another pretext.

I have heard the submissions made by learned counsel for

the parties.

This Court finds that the court below has recorded a finding

that the petitioner was not vigilant in prosecuting his case and his

counsel was also not present on the previous date i.e. 02.06.2018

and as such, the plea taken by the petitioner to remain absent on

23.07.2018, was rightly found against the petitioner.

This Court finds that the suit for eviction filed by the

respondents, is pending since 2011 and exparte proceedings were

also earlier drawn against the petitioner, however, the court below

had set-aside those exparte proceedings and has given one

opportunity to the petitioner. These findings as such do not suffer

from any legal infirmity.

This Court, however, finds that in the interest of justice, the

petitioner may be given, one more opportunity to contest the suit

filed by the respondents and for allowing the same, he has to

compensate the respondents by paying reasonable cost.

This Court finds that the petitioner is required to pay cost of

Rs.25,000/- to the respondents on the next date of hearing before

the court below and only on payment of cost awarded by this

Court, the petitioner would be allowed to participate in the

proceedings.

This Court, accordingly, sets-aside the exparte proceedings

drawn against the petitioner on 23.07.2018 and grants only one

(5 of 5) [CW-6383/2019]

opportunity to the petitioner to lead his evidence and no further

adjournment will be granted.

This Court also directs that all endeavour should be made by

the Civil Court to dispose of the suit in expeditious manner as the

suit for eviction is pending for more than 11 years.

Accordingly, the writ petition stands disposed of.

(ASHOK KUMAR GAUR),J

Bhavnesh Kumawat/Ramesh Vaishnav

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