Delhi Hindustani Mercantile Association (Regd) v. Dharam Vir Jain & ORS

$~A-35 *

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 164/2017 and CM Nos.5352-53/2017 DELHI HINDUSTANI MERCANTILE ASSOCIATION (REGD) ..... Petitioner Through Mr. Sunil Goel and Ms.Supreet Binbra, Advocates.

versus DHARAM VIR JAIN & ORS ..... Respondents Through

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

O R D E R

% 10.02.2017 1.

By the present petition filed under Article 227 of the Constitution of India, the petitioner seeks to challenge the observations made by the trial court in the order dated 16.12.2016 that the order striking the defence of the petitioner/defendant No.1 stands good.

2.

Learned counsel for the petitioner has pointed out that on 10.09.2007, the petitioner was proceeded ex parte and the defence was struck off. Thereafter on 26.11.2007, on an application filed by the petitioner under Order 9 Rule 7 CPC, the ex parte order dated 10.09.2007 was set aside subject to payment of costs of Rs.1,000/- and the written statement filed by the petitioner was taken on record. He further submits that the costs have also been paid, though a little late. He thereafter points out to the next order dated 10.08.2009 whereby the petitioner was again proceeded ex parte. CM(M) 164/2017

3.

In the light of this, he submits that though the application of the petitioner under Section 151 CPC for setting aside the ex parte order dated 10.08.2009 has been disposed off, the effect of the disposal would not be that the defence of the petitioner gets struck off. The written statement being already on record, the petitioner, he submits, would be free to join the proceedings at this stage 4.

An advance copy of the petition has been sent to the respondents. Learned counsel for the petitioner submits that the same has been served as per the tracking record. Yet none is present for the respondents. 5.

A perusal of the order dated 10.08.2009 would show that the defence of the petitioner was never struck off. The petitioner was only proceeded ex parte. Accordingly, the observation in the impugned order observing that the order striking off the defence of the petitioner stands good is erroneous and contrary to the orders passed on 26.11.2007 and 10.08.2009 by the trial court. Accordingly, the said observations in the impugned order are deleted from the said order.

6.

In view of the above, the petition stands disposed of. All pending applications also stand disposed of.

7.

Dasti.

JAYANT NATH, J FEBRUARY 10, 2017 rb CM(M) 164/2017