IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 162 of 2025 Decided on 30th July 2025 Smt. Shanti Devi and others …Petitioners Versus Executive Engineer and another …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? For the petitioner: Ms. Seema K. Guleria, Advocate. For the respondent: ex parte. Ajay Mohan Goel, Judge (Oral) When this matter was listed on 02.07.2025, the following order was passed:- “Respondent No.2 has not been served. Notice issued to said respondent has been received back with the report that on the given address no such person was either available or residing. An application being CMP No.14793 of 2025 has been filed by the petitioner with a prayer to serve respondent No.2 by affixation on the same address as mentioned in the memorandum of parties. It is stated that respondent No.2 was served in the proceedings of original suit before learned trial Court on the same address and she is represented by Shri. R.S. Chandel, Advocate. That being so, instead of ordering the service of respondent No.2 by way of 2 affixation, let a notice be issued to the said respondent through her counsel Shri. R.S.Chandel, returnable for 30th July, 2025, on taking steps within two days” 2. In terms of the report of the Registry, notice issued to respondent No.2 was served upon the counsel Sh. R.S. Chandel, but learned counsel refused to accept notice on the ground that he has been engaged by the party as a counsel in the trial Court and not in the present case. 3. This Court is of the considered view that the reason as to why the notice was served upon the respondent through counsel to enable the counsel to inform respondent No.2 of the matter being listed in this Court for today. It was in fact the bounden duty of the learned counsel to have had accepted the service and intimate the party of the same, in the light of the fact that it is not as if he is not representing respondent No.2 in the main proceedings i.e., the Civil Suit pending before the learned Trial Court. 4. Therefore, this Court is of the considered view that as service of notice upon the counsel is valid service in the eyes of law, respondent No.2 is deemed to have been served and as none has appeared in the Court on behalf of the said 3 respondent, therefore, she is ordered to be proceeded against ex parte. 5. By way of this writ petition, the petitioner has prayed for the following reliefs:- “It is, therefore, most respectfully prayed that this petition may kindly be allowed and the order dated 14.01.2025 passed by learned Civil Judge, Court No.3, Shimla in application under Order 9 Rule 7 read with Section 151 of CPC in Civil Suit No.225-1 of 2015/13 may kindly be set aside and the application filed by defendant No.2/respondent may kindly b dismissed in the interest of justice.” 6. Learned counsel for the petitioner has submitted that respondent No.2, time and again purposely does not puts in appearance before the learned Court below. She gets herself proceeded ex parte and then files applications for setting aside the ex-parte order and the learned Court below also without any due application of judicial mind is allowing said application(s) in a routine manner. She has drawn the attention of the Court to the impugned order and submitted that perusal thereof demonstrates that said respondent was firstly proceeded against ex parte on 12.01.2015 and this order was 4 set aside on 14.07.2016. Thereafter, again said party was proceeded against ex parte and this order was also recalled vide impugned order without any valid reasoning in the order as to why the application was being allowed. 7. Having heard learned counsel for the petitioner and having perused the impugned order and taking into consideration the conduct of the said respondent, this Court is of the considered view that learned Court below should not have had shown indulgence of setting aside the ex-parte order as liberally as has been done and if learned Court was showing indulgence, then, some heavy punitive cost should have been imposed upon the respondent. By the impugned order, learned Trial Court has condoned the acts of omission of the respondent and has committed perversity. 8. Accordingly, this petition is allowed by modifying order passed by the learned Court dated 14.01.2025 to the effect that the order passed by the learned Trial Court in terms whereof order dated 24.04.2024 has been recalled will be subject to payment of cost of Rs.1 lac by respondent No.2 to the plaintiff i.e. the petitioner herein. In case this cost is paid by 5 respondent No.2 to the petitioner within a period of four weeks from today, then, the order passed by the learned Trial Court in terms whereof said respondent has been allowed to join proceedings shall remain in vogue otherwise said order will lose its efficacy and said respondent shall be treated as an ex parte defendant. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge July 30, 2025 (Vinod)