Case Note & Summary
The Petitioner, Ismail Usman Patel, challenged the order dated 25.04.2018 passed by the learned Trial Judge rejecting his application at Exhibit 11 seeking to set aside the ex-parte order dated 03.07.2017 and for leave to file written statement. The Petitioner was duly served with summons in the suit but failed to appear on 03.07.2017, leading to the suit proceeding ex-parte against him. He appeared on 09.08.2017 but did not immediately file an application to set aside the ex-parte order; such application was filed only on 08.11.2017. The explanation for the delay between 09.08.2017 and 08.11.2017 was that the Petitioner was collecting documents to file a written statement and was not properly advised. The Court found the explanation unsatisfactory for the purpose of setting aside the ex-parte order but considered that the Petitioner was not properly advised and had clubbed two issues unnecessarily. Therefore, the Court granted indulgence subject to payment of costs of Rs.15,000/- to compensate the Respondent. The impugned order was set aside, the ex-parte order dated 03.07.2017 was set aside, and the Petitioner was granted leave to file written statement. The costs were to be deposited in the Trial Court within six weeks, and the Respondent could withdraw the same unconditionally. If costs were not paid, the petition would be deemed dismissed.
Headnote
A) Civil Procedure - Ex-Parte Order - Setting Aside - Delay - The Petitioner was served but failed to appear on 03.07.2017, resulting in an ex-parte order. He appeared on 09.08.2017 but filed the application to set aside only on 08.11.2017. The explanation for delay between 09.08.2017 and 08.11.2017 was unsatisfactory, but the Court held that lack of proper advice and clubbing of two issues warranted indulgence subject to costs. (Paras 4-6) B) Civil Procedure - Written Statement - Leave to File - Costs - The Court set aside the ex-parte order and granted leave to file written statement, subject to payment of Rs.15,000/- as costs to compensate the Respondent. Failure to pay costs would result in dismissal of the petition. (Paras 5-7)
Issue of Consideration
Whether the Trial Judge erred in rejecting the Petitioner's application to set aside the ex-parte order and for leave to file written statement, considering the delay and explanation provided.
Final Decision
The impugned order dated 25.04.2018 is set aside. The ex-parte order dated 03.07.2017 is set aside. The Petitioner is granted leave to file written statement, subject to payment of costs of Rs.15,000/- to be deposited in the Trial Court within six weeks. If costs are deposited, the Respondent may withdraw the same unconditionally. If costs are not paid, the petition shall be deemed dismissed.
Law Points
- Setting aside ex-parte order
- Leave to file written statement
- Costs as condition for indulgence
- Explanation for delay in filing application
