Ambalal & Ors. vs Ratan Lal

By way of the present Writ Petition, the petitioners have challenged the order dated 13.10.2016 whereby their (defendants'') application dated 03.12.2015 under Order IX Rule 7 of the Code of Civil Procedure, 1908 for setting aside ex parte proceedings has been rejected by the Trial Court.

The skeleton facts, necessary for the adjudication of present case are that the plaintiff-respondent had filed a suit for Mandatory & Permanent Injunction, which was subsequently amended to become a suit for declaration, possession, mandatory & permanent injunction.

The petitioner filed an objection under Order VII rule 11 of the Code of Civil Procedure, based upon question of Territorial Jurisdiction, which application came to be allowed by the Civil Judge (Senior Division), Rajsamand, who vide his order dated 19.05.2015, in exercise of powers under Order VII rule 10-A of CPC, returned the plaint to the plaintiff-respondent to be filed before the court of Civil Judge (Junior Division), Railmagra while fixing the date of appearance before him i.e. 28.05.2015. It is noteworthy that the counsel for the defendants appearing before the Court undertook to inform the defendants about the next date, which was fixed as 28.05.2015.

On 28.05.2015, the Presiding Officer of the transferee Court was not available and hence, the matter was adjourned to 29.06.2015. On the said date i.e. 29.06.2015, neither the petitioners nor their counsel did appear, due to which, the Court of Civil Judge (Junior Division), Railmagra {herein after referred to as ''the Trial Court''} decided to proceed ex parte.

Coming to know about the ex parte proceedings, the petitioners filed an application on 03.12.2015, under Order IX Rule 7 read with section 151 of CPC, inter alia, contending that though their counsel had informed them about the next date fixed before the Trial Court, but they could not present themselves on the date fixed, on account of engagement in other work.

In response to the said application dated 03.12.2015, the plaintiff-respondent filed a detailed reply dated 17.12.2015, contesting the application tooth & nails. The said application came to be rejected by the Trial Court vide order dated 13.10.2016, subject matter of challenge in the present writ petition.

While rejecting the said application, the Trial Court observed as under: "VERNACULAR MATTER OMITTED"

Mr Saruparia, learned counsel for the petitioner, challenging the order dated 13.10.2016, submitted that the application for setting aside the ex parte proceedings had been filed within 5 months & 04 days of drawing ex parte proceedings, which shows that the petitioners were sleeping over their right; there was no reason for the petitioners, in not appearing before the Trial Court, on the date fixed and further; that the court below has committed an error in rejecting petitioners'' application on the ground of delay and laches, particularly when limitation for filing an application under Order IX rule 7 of the Code of Civil Procedure is three years.

Per contra, Mr Ashwini Babel, appearing on behalf of the respondent, supported the order of the court below and contended that the application filed by the petitioners has been filed in most cavalier manner and no reason, much less justifiable reason, has been stated in the application under consideration. Learned counsel further submitted that the petitioners were represented by the same counsel, in another case, being a Contempt Petition between the same parties and as such, the petitioners can not be heard to say that they were unaware about the date(s) in the present case.

He further contended that as per petitioners'' own stand, their counsel had appeared and undertook to inform the petitioners about the next date and as such, it was petitioners'' fault, rather choice of not appearing before the court. Mr Babel vehemently submitted that the conduct of the petitioners does not warrant any sympathetic attitude and the order under challenge, passed by the Trial Court below is perfectly just and proper in the facts and circumstances of the present case.

On perusal of the record, this Court finds that the learned Civil Judge, Railmagra in exercise of powers under sub-rule (3) of Rule 10-A of Order VII returned the plaint vide order dated 19.05.2015 while fixing the date of appearance on 28.05.2015 before the Trial Court. On the date fixed, the Presiding Officer was not available and the matter was adjourned to 29.06.2015, on which date the Court decided to proceed ex parte.

Having considered the facts of the present case, I find that 29.06.2015 was practically the first date before the Trial Court, hence, it should not have hustled to proceed ex parte.

Be that as it may, having decided to proceed ex parte, once petitioner-defendants filed an application within 5 months of taking up the ex parte proceedings; the Trial Court ought to have applied justice oriented and objective approach, particularly in wake of fact that the suit proceedings were at their threshold and nothing substantial had been done in the case by that time.

In considered opinion of this Court, decision of proceeding ex parte should not be taken as the first choice or as a matter of course, rather it should be taken sparingly and as a last resort. The Court should be loath in taking such decision and having taken such decision, if an application to set aside the ex parte proceedings is filed, the Court should generally be ready and willing rather zealous to set aside such order. Ex parte proceedings should be an exception and setting aside such order, should be a rule. Application under Order IX Rule 7 should be rejected in exceptional cases.

A conjoint and comparative reading of sub-rule (7) and (13) of Order IX shows that sub-rule (7) uses the term "good cause" while sub-rule (13) uses the word "sufficient" cause. Term "good cause" provides wider discretion to the Court, as such, while deciding the application under sub-rule (7) the Courts should adopt a more lenient view than what is required while setting aside ex parte decree.

As no specific limitation has been provided for an application under Rule 7 of Order IX under Limitation Act, the same can be filed within three years, as stipulated under Article 137 of Limitation Act, 1963.

Adverting to the factual backdrop of the present case, the application in question has been filed within 6 months, which cannot be termed as belated or suffering from laches. The respondents have failed to show that the application in question is not bona fide. Needless, it is to observe that if the case is proceeded ex parte, it would adversely affect the petitioners'' rights and that if the ex parte proceedings are recalled and the clock is set back, no substantial prejudice would be caused to the plaintiff-respondent.

This Court is impelled to add that every litigant should get a fair chance to contest his case and the Courts of law should not proceed in undue haste, in the manner done in the present case.

In view of above discussion, the order dated 13.10.2016 passed by the court below can not be approved on the anvil of principles of equity, justice and good conscience. Hence, the order dated 13.10.2016 impugned in the present writ petition and the ex parte proceedings taken by the Trial Court on 29.06.2015 are quashed and set aside.

With a view to mitigate the inconvenience caused to the respondent-plaintiff, the petitioners shall pay a cost of Rs.10,000/- to the respondent-plaintiff. The matter shall be restored only subject to the payment of the cost before the Trial Court.

The writ petition is allowed as ordered above.