SANDEEP MEHTA,J. - (1.) By way of this writ petition, the petitioners have approached this Court for challenging the order dated 18.8.2010 passed by the learned Civil Judge (J.D.), Sheoganj in Civil Suit No.19/2004 whereby, the application preferred by the petitioners/defendants for setting aside the ex-parte proceedings was rejected.
(2.) Facts in brief are that the respondents/plaintiffs filed a suit for permanent injunction and declaration in the Court of learned Civil Judge, Sheoganj arraying the present petitioners and few more as defendants. Appearance was put in on behalf of the petitioners on 10.11.2004. Time was sought for filing reply. Despite repeated opportunities, reply was not filed on which, the trial Court closed the written statement of the present petitioners by order dated 19.1.2005. Thereafter owing to the indifference shown on behalf of the petitioners in prosecuting the matter, the trial Court directed ex-parte proceedings on 1.3.2007. An application under Order 9, Rule 7 CPC signed by the petitioner no.2 Kishore Kumar alone was filed before the trial Court on 4.5.2010 for setting aside the ex-parte proceedings. In this application, Kishore Kumar pleaded that he and the other defendants were residing at different places in India and their visits to Sheoganj were negligible. Counsel engaged by the petitioners did not inform them about the proceedings and did not summon them to plead the matter. It was claimed that Kishore kumar came from Chennai to Sheoganj on 26.4.2010 on which somebody informed him that ex-parte proceedings have been undertaken in the suit. Thereafter, he procured the certified copies and filed the application for setting aside the ex-parte proceedings which was rejected on 18.8.2010. Hence, this writ petition.
(3.) Learned counsel for the petitioners places reliance on the following judgments:- (1) G.P. Srivasatava v. R.K. Raizada and others reported in (2000) 3 SCC 54 . (2) State of Nagaland v. Lipok AO and others reported in (2005) 3 SCC 752 . (3) Narayan Lal Bagra and Anr. v. Hanuman Sharma and Ors. reported in 2008 (1) DNJ (Raj.) 344 . and urges that the parties should not be penalised for the fault of the counsel. The counsel engaged by the petitioners did not prosecute the matter properly and did not inform them about the ex-parte proceedings drawn by the trial Court and as such, they could not plead the matter before the trial Court properly. He submits that as soon as information was received, a timely application was moved for setting aside the ex-parte proceedings. He thus prays that the impugned order should be set aside and one opportunity be granted to the petitioners to file written statement and to allow them to lead evidence after setting aside the ex-parte proceedings. ;