- (1.) HEARD learned counsel for the petitioners and learned counsel for the opposite parties. This petition has been filed challenging the order dated 15.10.2009 passed by opposite party no.1 and the order dated 17.10.2007 passed by opposite party no.2. The facts in short are that opposite parties no.3 and 4 filed a suit for declaration and for permanent injunction against the petitioners as well as opposite party no.5 on 5.1.1999.? Defendants no.2 and 3 put in appearance and filed their written statement denying the allegations of the suit and also stated that the plaintiffs are not entitled for any relief.? On 12.7.2007, the suit was fixed and the petitioners failed to appear when the case was called out and thereafter it was ordered to proceed ex-parte.? On 18.7.2007, an application under Order 9 Rule 7 read with Section 151 CPC for recalling the ex-parte order was moved on behalf of the petitioners and objection was filed by opposite parties no.3 and 4 on 31.8.2007 for rejecting the application.? The trial court proceeded to reject the application vide order dated 17.10.2007.? The petitioners preferred a revision against the aforesaid order before the Addl. District Judge, Sitapur and the same was dismissed by opposite party no.1 vide order dated 15.10.2009.? Hence this writ petition.? Submission of learned counsel for the petitioners is that proper opportunity to defend the case has not been given and the trial court has proceeded in haste in proceeding ex-parte against the petitioners and therefore, an opportunity ought to have been given to cross examine the plaintiffs' witnesses.
(2.) LEARNED counsel for the opposite parties, on the other hand, has submitted that the case is proceeding for cross-examination since 2003 and thrice the case proceeded ex-parte and the order was recalled twice.? When the court found that the defendants are only misusing the process of the court and are not interested in cross-examining the plaintiffs' witnesses, then the court proceeded ex-parte.? The order was challenged in the revision as well and the said revision has also been dismissed.? I have heard learned counsel for the parties and perused the record.? From the record and averments made in the counter affidavit, it is evident that from 2003, the case was proceeding for cross-examination of the plaintiffs' witnesses.? On 28.2.2006, when the petitioners did not cross-examine, the trial court closed the cross-examination and fixed 20.3.2006 for evidence of the petitioners.? Thereafter the petitioners moved? recall application on 20.3.2006.? Opposite party no.3 filed objection to the said application on 19.7.2006 and made a specific statement that for the last three years, the petitioners have been seeking adjournments on one pretext or the other and they did not cross-examine the plaintiffs' witnesses.? The application of the petitioners dated 20.3.2006 was allowed by the trial court on 24.8.2006 and thereafter the case was fixed for cross-examination of the plaintiffs' witnesses but the petitioners did not cross-examine the witnesses and so, the trial court again proceeded ex-parte on 21.3.2007 and closed the cross-examination of the plaintiffs' witnesses and fixed 30.4.2007 for ex-parte arguments. The petitioners on 30.4.2007 again moved an application for recalling the order dated 21.3.2007.? The opposite parties again filed objection to the said application and the trial court allowed the application of the petitioners on 2.7.2007 on payment of Rs.150/- as cost and fixed the date as 12.7.2007 for cross-examination of the plaintiffs' witnesses by the petitioners but again the petitioners did not appear and did not cross-examine the plaintiffs' witnesses.? The trial court, therefore, on 12.7.2007 passed order for closing cross-examination of the plaintiffs' witnesses and proceeded ex-parte.? Then again the petitioners moved an application for recalling the order dated 12.7.2007 against which objections were filed by the opposite parties and thereafter the trial court rejected the application of the petitioners vide order 17.10.2007.? The revision preferred by the petitioners against the said order has also been dismissed. From perusal of the impugned orders, facts and circumstances and the events of the case, it is apparent that the petitioners have been deliberately avoiding to cross-examine the plaintiffs' witnesses and therefore, they have lost their right to get the order recalled.? They were given ample opportunity.? The ex-parte order was recalled twice.? So, in these circumstances, the petitioners should have taken all care and caution to cross-examine the plaintiffs' witnesses.? Ample opportunity was given to the petitioners, who failed to avail the same.? Court cannot come to the aid of such lethargic litigants.? The litigants, who are pursuing their remedy in the court of law, are supposed to be vigilant in pursuing the proceedings. In the aforesaid circumstances, I do not find any illegality in the orders passed by both the courts below. The writ petition is devoid of merit.? It is accordingly dismissed.;