Hon’ble Arun Tandon, J.—Heard Shri Manu Saxena, Advocate on behalf of the petitioner, Shri Siddharath Verma, Advocate on behalf of contesting respondents and the Standing Counsel for the State-respondents.

2. This is the defendant’s writ petition. Respondent No. 3, Vijay Kumar filed Original Suit No. 166 of 1989 for specific performance of the agreement to sale in respect of the property in dispute. Alongwith the plaint, an application for temporary injunction was also made. Notices were issued to the defendants on the application. Appearance was put in on behalf of the defendants. Request was made on their behalf on at least four dates for filing of the written statement. Even then they failed to do so, ultimately, on 21.4.1990 the suit was decreed ex parte. The defendants made an application under Order IX Rule 13 for setting aside the decree on the allegation that the case was fixed under an order dated 19.2.1990 for 17.4.1990 but due to mistake, counsel for the defendant, recorded the next date in his diary as 21.9.1990. Because of the said mistake, counsel could not appear on 17.4.1990 and the Court proceeded ex parte in the matter and ultimately decreed the suit ex parte on 29.5.1990. It was further stated that the defendant on coming to know of the ex parte decree, made an application on 31.7.1990 for setting aside the same. Alongwith the recall application, another application was made under Section 5 of Limitation Act supported by an affidavit of the counsel concerned, which amongst other recorded that there has been mistake on the part of the counsel in recording the next date which was fixed on 19.2.1990.

3. The application so made under Section 5 of Limitation Act was rejected by the trial Court under an order dated 24.2.1992. As a result whereof the application for setting aside the ex parte decree was dismissed as barred by limitation.

4. Not being satisfied, the defendant filed Miscellaneous Appeal No. 7/1992 which has also been dismissed under the impugned order dated 16.3.1993. Hence this writ petition.

5. While entertaining the writ petition this Court on 13.4.1993 directed that the petitioner shall not be evicted from the property in dispute.

6. Counter affidavit has been filed and in paragraph 17, it has been stated that the sale-deed was got executed by the Court on 9.3.1992 and the possession of the premises was also handed over to the plaintiffs on 19.3.1993, a copy of the dakhalnama has been brought on record.

7. The execution of the sale-deed and the possession having been delivered to the plaintiff as early in the year 1992-93 is not disputed. It is agreed that as on date the plaintiff is in possession over the property for last nearly 17 years.

8. Challenging the order impugned, counsel for the petitioner submitted that in the facts of the case, there was a human error on the part of the counsel in recording the date fixed in the matter and that such mistakes are always liable to be corrected on an appropriate application being made before the Court concerned. He submits that in the facts of the case, the trial Court as well as the appellate Court have adopted an hyper technical attitude, while rejecting the application made for condoning the delay.

9. Shri Siddharath Verma, Advocate on the contrary submits that the petitioner had been negligent in contesting the proceedings. He did not file written statement despite repeated opportunities and there was an attempt on his part to prolong the proceedings on one pretext or the other. Therefore, this Court may not interfere.

10. I have heard counsel for the parties and have examined the records.

11. It is no doubt true that the defendant did not file his written statement despite repeated opportunities, such conduct of a party to the litigation cannot be approved of. But at the same time in the facts of the case the Court finds that there had been an error on the part of the counsel in recording the next date fixed in the matter. In support of su