Narendra Kumar Jain, J. - (1.) HEARD learned Counsel for the parties.
(2.) THE defendant -petitioner has preferred this writ petition challenging the impugned order dated 14th May, 2004 (Annexure -3) passed by the trial court rejecting his application under Order 9 Rule 7 read with Section 151 of the Code of Civil Procedure for setting -aside the ex -parte order and closing his evidence. The plaintiff -respondent filed a suit for permanent injunction in the year 1995 wherein the plaintiff's evidence was closed on 22nd November, 2002 and the case was fixed for defendant's evidence on 29th January, 2003. Five opportunities were granted to the defendant to lead evidence, but no evidence was adduced and on 22nd November, 2003 last opportunity was granted and case was fixed for 12.02.2004 but on that date also no evidence was adduced on behalf of the defendant and, looking to the facts and circumstances of the case, again the court granted last opportunity at the costs of Rs. 100/ - and the case was fixed for 11.03.2004, but on that date neither evidence was adduced nor cost was paid and the counsel for the defendant pleaded no instructions in the matter, therefore, the trial court not only closed the defendant's evidence but also passed ex -parte proceedings against the defendant and fixed the case ex -parte for arguments. The defendant thereafter filed an application dated 1st April, 2004 in the trial court under Order 9 Rule 7 read with Section 151 of the CPC for setting - aside the ex -parte proceedings and to allow the defendant to lead evidence which has been dismissed by the trial court vide impugned order dated 14th May, 2004.
(3.) THE learned Counsel for the petitioner contended that the defendant was not well on the date when the case was fixed for defendant's evidence, therefore, he could not make himself present on that date and his counsel wrongly pleaded no instructions in the case on his behalf, therefore, in the interest of justice, one more opportunity may be granted to him to lead evidence while setting -aside the ex -parte proceeding and so far as the delay of proceedings is concerned, the plaintiff may be compensated by way of costs.;