1. THIS is an application under Order 9, Rule 13, CPC for setting aside ex parte order dated 15.7.1997 passed in Complainant Case No. C-264/96. Rajeev Mehta, complainant for short filed the aforesaid complaint on 18.9.1996 against M/s. Pushpa Builders Ltd. and V.K. Soin, Chairman and Managing Director of the said Company. Notice was sent to the opposite parties for 2.12.1996. One Mr. Ram Niwas, who represented that he was Law Officer of the opposite party appeared and on his request the case was adjourned for 10.2.1997 for filing written version of the opposite party. The case was again adjourned for the same purpose on 10.2.1997 to 12.3.1997. On the adjourned date, file of the case was not traceable and none was present on behalf of the opposite parties. The complainant filed evidence by way of affidavit and the case was fixed for filing an affidavit by way of evidence of the opposite parties on 24.4.1997. On that date none appeared for opposite parties and the complaint was allowed by ex parte order dated 15.7.1997 and the opposite parties directed to refund a sum of Rs. 5,58,369 /-alongwith interest @ 18% per annum from the date of actual payment till refund, in addition to Rs. 5,000/- on account of costs, within four weeks of the receipt of a copy of the order.
2. THE opposite party failed to make the payment. Accordingly the complainant filed an application under Section 27 which was registered as Execution Case No. 306/97. Again Mr. Ram Niwas appeared on behalf of the opposite party. THE case was adjourned from time to time on the request of the said representative appearing for the respondent for making the payment. Ultimately the present application for setting aside the ex parte order was filed on 6.2.1998 alongwith affidavit of Mr. H.L. Soin, Director of the respondent Company, as well as affidavit of Mr. Ram Subhawan, Officer (Admn.) of the respondent Company. In the application it has been stated that the opposite party was not served in the complaint. THE Company came to know about the ex parte order on receipt of the Show Cause Notice issued in connection with the complainant''s application under Section 27. Mr. Ram Niwas, who was a Liaison Officer of the Company was directed to obtain a copy of the ex parte order as well as copy of the complaint and he had been reporting to the Company that the file was not traceable. Mr. Ram Niwas left the respondent Company on 31.1.1998 and thereafter the matter was perused by Mr. Amit Roy, Law Officer of the Company who obtained the necessary certified copies and the present application was being moved. It was further stated that the opposite party had several valid pleas to raise and it was entitled to be heard before the case was decided against it. In the affidavit filed by Mr. Ram Subhawan; it has been stated that no notice or summons regarding complaint case had been received from the office of the State Commission by the respondent Company during the period from 18.9.1996 to 2.12.1996 or thereafter.
In the reply filed by Mr. Rajeev Mehta, complainant, in the main case, it has been stated that Mr. Ram Niwas had been appearing before the State Commission and the Company was duly represented through him. The case had been adjourned from time to time at the request of Mr. Ram Niwas. It was, therefore, factually wrong and untrue that the opposite party was not aware of the filing of the complaint or passing of the order. Mr. Mehta has filed his own affidavit alongwith the reply. We have heard learned Counsel for the parties and have carefully gone through the record.
No doubt setting aside the ex parte at this stage will put back the complainant by almost two years but the crucial question is whether the opposite party was duly served in accordance with law and whether Mr. Ram Niwas had necessary authority from the opposite party to appear on its behalf.
3. THERE is no evidence available on record that the opposite party was duly served in accordance with law. We are unable to find any acknowledgement duly signed on behalf of the opposite party in token of receipt of notice by Registered A.D. Post. THERE is also no Power of Attorney in favour of Mr. Ram Niwas. On behalf of the opposite party, no written version was filed at any stage nor were they heard before passing the ex parte order. Overriding consideration of justice requires that the applicant is given necessary opportunity to file a written version and the case is decided afresh according to law. In order to compensate the complainant for the delay, we propose to take two steps. One, to award substantial costs for setting aside the ex parte order and two deal with this case on priority so that the same can be decided afresh according to law with the least possible delay. We accordingly allow the application, set aside the ex parte order only on payment of Rs. 10,000/- as costs, to be paid before written version of the opposite parties is taken on record. The payment of the cost shall be a condition precedent for filing the written statement. The opposite parties shall also file their written version after the costs are paid on the same date so that the case can be proceeded with expeditiously. A copy of this order be furnished to both sides. Appeal allowed.
