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HIGH COURT OF MADHYA PRADESH
Rohit Arya, J.
Rajendra Tiwari v. Smt. Sushila Bai
Miscellaneous Petition No. 4804 of 2018 (I) Decided on 8.5.2019
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1. Defendants taking exception to the impugned order dated 10.7.2018 has approached this Court with a grievance that written statement filed along with an application under Order 9 rule 7 CPC has not been taken on record though exparte proceedings are set aside, merely on the ground that the written statement was filed beyond 90 days from the date of service of summons.
2. It is submitted that the trial Court on one side has set aside the ex-parte proceedings and on the other side has taken hyper technical view while declining to take the written statement on record. It is submitted that such recourse of learned trial Court is apparently beyond jurisdiction and resulting into miscarriage of justice.
3. Per contra, Shri Garg opposes the petition supporting the impugned order.
4. Heard learned counsel for the parties.
5. This Court is not in agreement with the view of the trial Court. If the trial Court had found sufficient reason for the petitioner/defendant not to remain present on the previous date of hearing and set aside the ex-parte proceeding, in all fairness, the trial Court ought to have allowed the written statement to be taken on record for doing complete justice between the parties. Denial in that behalf only for the reason that the written statement was filed after 90 days from the date of service of summons is found to be too technical to be appreciated.
6. Regard being had to the concept of justice, equity and good conscience, the trial Court is required to bear in mind the obligation upon the Court to do complete justice between parties while regulating trial under the Procedure Code. Consequently, the impugned order to that extent is set aside. The trial Court is directed to take on record the written statement and thereafter proceed with the trial.
7. With the aforesaid, petition is allowed.
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