Court No. - 47
Case :- MATTERS UNDER ARTICLE 227 No. - 2951 of 2018 Petitioner :- Sanjay Chaurasiya And 3 Ors. Respondent :- District Judge, Kanpur Nagar And 2 Ors. Counsel for Petitioner :- Sunil Srivastava Counsel for Respondent :- Kirti Kumar Nirkhi
Hon'ble Ram Surat Ram (Maurya),J.
Heard Sri Sunil Srivastava, learned counsel for the petitioners and Sri K.K. Nirkhi for respondent no.3.
The writ petition has been filed against the order of Judge, Small Causes Court dated 15.11.2017, by which the application of the petitioners under Order 9 Rule 7 C.P.C. for recalling the order dated 13.1.2016, proceeding ex- parte against the petitioners, has been rejected and the order of District Judge dated 1.2.2018, dismissing the revision of the petitioners against the aforesaid order.
The S.C.C. Suit No.4 of 2015, has been filed against the petitioners on 7.5.2015, for his ejectment from the premises in dispute as well as for arrears of rent. In this suit, the trial court by order dated 10.8.2015, closed the opportunity of the petitioners to file written statement and proceeded ex-parte against them. The petitioner moved application dated 26.11.2015, for recall of the order dated 10.8.2015, which was allowed on 11.12.2015, on the cost of Rs.500/- and the petitioners was given liberty to file written statement within the day and also deposit the cost.
According to the petitioners, he could not know about the order allowing the application and he was throughout remained under impression that his application is still pending for disposal. In the meantime, several dates were fixed and ultimately, the court again proceeded ex-parte against petitioners vide order dated 13.1.2016. Then the petitioners moved another application dated 14.2.2017, for recall of the order dated 13.1.2016, and for being given opportunity to file written statement which has been rejected by the impugned orders of the courts below.
I have considered the arguments of the counsel for the parties. The petitioners have produced a certified copy of the order sheet showing that he had been appearing in the suit and they have also made signature on the order sheet. In the affidavit, the petitioners have stated that he could not know that his application under Order 9 Rule 7 C.P.C., was allowed vide order dated 11.12.2015.
Although this allegation of the petitioners have been disbelieved by the court below inasmuch as the petitioners have been appearing before the court below throughout, the fact remains that suit is still pending before the trial court and no useful purpose would be served in deciding the suit ex-parte. On the other hand, the respondent no.3 can be compensated by awarding suitable cost.
In the facts of the case, writ petition is disposed of giving liberty to the petitioners to file their written statement before the trial court within the period of 15 days from today and pay a cost of Rs.10,000/- to respondent no.3 or deposit the cost in the court within the same period, and the respondent no.3 will be at liberty to withdraw it. The written statement of the petitioners shall be accepted by the trial court and he shall proceed to decide the suit on merit in accordance with law.
It is made clear that time shall not be extended in any case.
Order Date :- 27.4.2018 Shalini