Dinesh Maheshwari, J. - (1.) HEARD learned Counsel and perused the material placed on record.
(2.) DURING the course of submissions, learned Counsel Mr. Rajesh Choudhary apppearing for the plaintiff -respondent No. 2 has rightly not attempted to justify the impugned order dt. 01.12.2007 and submitted that though the petitioner -defendant was extended sufficient opportunities for concluding his evidence but he failed to avail of the same and then, for his Counsel pleading no instructions, proceedings were taken ex parte but in the circumstances of the case, if the petitioner produces his entire evidence on the next date fixed before the learned trial Court, i.e., 30.04.2008 and makes payment of reasonable amount of costs then, he may be permitted to take part in the proceedings but the only anxiety of the plaintiff -respondent is that the trial of the suit should proceed expeditiously. Learned Counsel Mr. Choudhary while justifying his prayer for imposing costs has placed for perusal certified copies of the order sheets in the case and submitted that nearly 26 adjournments had been granted to the petitioner -defendant for the purpose of concluding his evidence. Having perused the order sheets, this Court is constrained to observe that by mere counting of the number of dates of hearing, it cannot be said that the petitioner had been intentionally avoiding the proceedings or had been grossly negligent. It is noticed that after closure of the plaintiff's evidence on 24.01.2004, an adjournment was granted on 07.04.2004 and the Presiding Officer was not available. Thereafter, either the post was vacant or on various occasions, the Presiding Officer was holding the Court at other place or the Bar Members abstained from work. It is also noticed that on 08.08.2007, according to the learned trial Court, the learned CJM was carrying out inspection and, therefore, evidence could not be recorded. Counsel for the petitioner -defendant pleaded no instructions on 12.09.2007 but on the very next date, i.e. 08.10.2007, the application for setting aside ex parte proceedings was moved. No further proceedings were taken in the matter after 12.09.2007. In the overall circumstances, the application as moved by the defendantpetitioner could have been allowed without causing any prejudice to the plaintiff; and rejection of the application by the learned trial Court, cannot be said to be justified. In the circumstances of the case, this Court is not inclined to impose any costs on the petitioner.
(3.) HOWEVER , it does appear appropriate to observe that quite longer a time has already been spent after the plaintiff's evidence was closed and, therefore, the suit should now be proceeded further expeditiously without granting unnecessary adjournments.;