Order no.  7, dt. 24.02.2023

This case record is taken up for consideration for passing order in respect of the petition filed by the applicants (who are the op nos. 6, 7 and 8 of C.C. case no. 119 of 2018) for setting aside the order of ex parte hearing.

Over this issue heard ld. Advocates of the both sides. Considered submission.

W/O has been filed by the op (who is the complainant of the C.C. case no. 119 of 2018).

The argument highlighted by ld. Advocates of both sides have been considered in full.

It is the main point of contention and argument of the applicant side that this case is not maintainable and for that reason the op nos. 6, 7 and 8 already have filed a separate M.A. case being no. 69 of 2022 and it is the settled principle of law that maintainability point is to be decided at first otherwise pendency of a case would be abuse of process.

On the other hand, it is the main point of contention and argument of the op (who is the complainant of C.C. case no. 119 of 2018) that the applicants in the above note C.C. case has failed to file the W/V within time limit of 45 days and so this District Commission has rightly passed the order of ex parte hearing in C.C. case no. 119 of 2018.

For the purpose of deciding the fate of this M.A. case, this District Commission after going through the materials of the case record finds that the applicants who are the ops of C.C. case no. 119 of 2018 has already filed W/V but after some delay which was not intentional delay on the part of the ops. Now the question is whether the order of this District Commission for setting aside ex parte order can be allowed or not? In this regard it is very important to note that the complainant incorporated the op nos. 6 to 8 who are the applicant of this case after a long delay. Moreover, the complainant side has also filed amendment petition for further amendment of the complaint petition on 11.1.2023 for incorporating some subsequent events. So, there is urgent necessity for op nos. 6, 7 and 8 to adopt their defence in view of the subsequent incorporation of facts by the complainant by way of amendment. Thus, this District Commission finds that there is justified reason for delayed filing of W/V by op nos. 6, 7 and 8. Moreover, as per paragraph no. 63 of the case of New India Assurance Company Ltd. vs. Hiili Multipurpose Cold Storage Pvt. Ltd. is to be considered and applicable prospectively. In view of this position and by following the observation of the Hon’ble Apex Court in the case of Reliance General Insurance Co. Ltd. & Another v/s M/s. Mampee Timbers & Hardwares Pvt. Ltd. & Another, the prayer of the op nos. 6, 7 and 8 for setting aside the ex parte order can be allowed.

In the result, it is accordingly,

Ordered

that this M.A. case no. 70 of 2022 be and the same is allowed on contest but at the cost of Rs. 1000/- payable to the complainant side within next date of C.C. case no. 119 of 2018.

Let the order of ex parte hearing against op nos. 6, 7 and 8 which was passed vide order no. 24 dt. 11.10.2022 is hereby modified.

W/V filed in this M.A. case by op nos. 6, 7 and 8 be incorporated/ tagged in C.C. case no. 119 of 2018.

Let this case record of M.A. case no. 70 of 2022 be tagged with the original case record of C.C. case no. 119 of 2018.