Point of Law: Rejection of application for setting aside ex parte order – Not justified as the mistake was of lawyer.

JUDGMENT :

1. Heard Mr. B. D. Deka, the learned counsel appearing on behalf of the Petitioner and Mr. J. Singh, the learned counsel appearing on behalf of the Respondent.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 18.11.2021 passed in Misc. (J) Case No.377/2021 arising out of Title Suit No.3/2021. Vide the said impugned order, the Court below rejected the application to vacate the order of ex-parte against the petitioner on the ground that the application has been filed under wrong provision of law and also was neither supported by verification nor by any affidavit.

3. The facts of the instant case is that the Respondent herein as the Plaintiff had instituted the suit against the Defendant who is the Petitioner herein. The said suit was filed for a decree for eviction of the Defendant from the lease premises described in Schedule B and C to the plaint; for arrear rent of Rs.17,00,000/- alongwith interest thereon @18% per annum which comes to Rs.20,06,000/-as on the date of filing of the suit; for pendente lite and future interest as well as for future rent in respect to the Schedule B and C premises.

4. Pursuant to the filing of the said suit being Title Suit No.3/2021, the Court issued summons on 06.01.2021 fixing 11.02.2021 for SR/WS. On 11.02.2021 the Defendant appeared and filed Vakalatnama along with a petition bearing No.75/2021 praying for fixing another date for filing of the written statement stating that she had not received the documents filed with the plaint. The Trial Court allowed the said petition and directed the Petitioner to receive the documents which were already on record and fixed 26.02.2021 for written statement. However, on 26.02.2021, none has appeared on behalf of the Petitioner and accordingly, the Trial Court fixed 09.03.2021 for necessary order. However, on 09.03.2021 as none has appeared on behalf of the Petitioner, the Court directed that the suit shall proceed ex-parte against the Defendant fixing 30.04.2021 for ex-parte evidence. Thereafter, on 10.03.2021, a petition was filed being Petition No.207/2021 by the Petitioner praying for vacating the ex-parte order. The Trial Court observed that the same shall be taken up on the next date fixed and the Petitioner was directed to furnish a copy of the petition to the plaintiff and accordingly fixed the matter on 30.04.2021. Thereafter, on account of the COVID restrictions and the staggered hearing, the matter was not taken up till 18.09.2021 on which date the Petitioner was represented by another counsel and another petition was filed being Petition No.503/2021 under Order IX Rule 13 for setting aside the ex-parte order dated 09.03.2021. The Trial Court directed the said application be registered as Misc. (J) Case and fixed on 29.10.2021 for necessary order. The said application was registered as Misc. (J) Case No.377/2021.

5. It further appears that on 29.10.2021, the Trial Court was of the opinion that before further proceeding with the suit, the said application under Order IX Rule 13 needs to be adjudicated upon and therefore fixed 18.11.2021 for necessary orders. In the meantime on 29.10.2021, the Trial Court also heard the Misc. (J) Case No.377/2021 and fixed 18.11.2021 for orders. Thereafter on 18.11.2021 the impugned order was passed which have been challenged in the instant proceedings.

6. I have heard the learned counsel for both the parties and also perused the materials on record. It appears from the records that it was absolutely the fault of the counsel which have resulted in the malady and the difficulties faced by the Petitioner. It is not understandable as to when the Trial Court on 11.02.2021 had fixed the matter on 26.02.2021, the counsel who was appearing on behalf of the Petitioner before the Trial Court did not notice the said date or even did not check the case diary. The Petitioner is an aged lady and when the said application was moved through the counsel seeking an ad