Babulal Jain vs Rashmi Rastogi & Ors.

This petition under Section 115 of CPc has been preferred by the petitioner/tenant against the order dated 16/1/2015 passed by Third

Additional District Judge, Gwalior in Miscellaneous Civil Appeal No. 8/2014; confirming the order dated 23/12/2011 passed by Fifth Civil Judge,

Class-II, Gwalior in Miscellaneous Civil Case No. 3/2011, whereby, the application preferred by the petitioner/tenant under Order IX Rule 13

CPC has been rejected.

Precisely stated facts of the case are that in year 1991 original plaintiff Sitaram filed a civil suit vide Civil Suit No. 37-A/1991 for restoration of

possession and mesne profits against the petitioner/tenant in respect of land/plot in questions. Petitioner filed the written statement and denied the

claim made by the plaintiff. As per the submission, due to some reasons petitioner could not attend the suit proceedings, therefore, trial Court

proceeded ex parte against the petitioner and suit of the plaintiff was decreed vide judgment and decree dated 18/1/1993 against the petitioner.

No sooner the facts came to the knowledge of the petitioner about passing of ex parte judgment and decree, he immediately filed an application

under Order IX Rule 13 read with Section 151 CPC before the trial Court which was registered as case No. 5/1993. Said application was listed

for evidence of petitioner but on same day application was dismissed for want of prosecution due to absence of petitioner and his counsel vide

order dated 17/8/1994. Against the order dated 17/8/1994, petitioner filed an application under order IX Rule 9 read with Section 151 of CPC

for restoration of proceedings of application under Order IX Rule 13 CPC which was dismissed vide order dated 20th November, 1997. It

appears from the pleadings that thereafter, petitioner filed a revision petition bearing No.C.R.NO. 16/1997 before this Court and vide order dated

18/9/1998, said revision was allowed and the proceedings under Order IX Rule 13 CPC were restored and trial Court was directed to consider

and decide the application after affording opportunity of hearing/ lead evidence to both the parties. It further appears that thereafter, trial Court

vidce order dated 23/12/2011, dismissed the petitioner''s application udner Order IX Rule 13 read with Section 151 of CPC by holding that the

said application is barred by limitation.

Against the order dated 23/12/2011, petitioner filed a miscellaneous civil appeal before the appellate court alongwith application for stay over

the effect and operation of ex parte judgment and decree dated 18/1/1993, earlier passed by the trial Court. Said application was allowed by the

appellate Court vide order dated 28/8/2012. During the pendency of said appeal, original plaintiff expired and his LRs were brought on record.

It appears that one of the LRs (Vishambhar Kumar Rastogi) filed a writ petition before this Court vide W.P.No. 8353/2012 challenging the

interim order dated 28/8/2012; whereby, the stay has been granted, but the said writ pettion was later on dismissed as withdrawn vide order dated

26/3/2014. It further appears that during this period, appeal was transferred to some other Court and renumbered. Appellate court vide order

dated 16/1/2015 dismissed the appeal and affirmed the order passed by the trial Court rejecting the petitioner''s application under Order IX Rule

13CPc, therefore, petitioner is before this court.

According to learned counsel for the petitioner, trial Court as well as appellate Court erred in passing the orders impugned without considering

the evidence led by the petitioner in support of his contentions, whereas, this Court in earlier round of litigation in Civil Revision No. 16/1998,

directed the trial Court to decide the petitioner''s application on merits after permitting both the parties to lead evidence. He further submitted that

trial Court as well as appellate Court did not consider the true effect of Order IX Rule 13 CPC and caused illegality. In the interest of justice,

matter ought to have been restored by the trial Court for adjudication on merits.

On the other hand, learned counsel for the respondents opposed the prayer made by the petitioner and submits that petitioner did not prove his

bona fide through the application and under the limited scope of revision, no interference can be made. Both the Courts below have rightly passed

the orders impugned after considering the evidence on record and have nowhere caused any illegality in any manner. He supported the impugned

orders passed by the Courts below and prayed for dismissal of the Civil Revision.

From the perusal of record, it appears that ex parte judgment and decree has been passed by trial Court on 18/1/1993 and the application

under Order IX Rule 13 CPC has been preferred by the petitioner on 1/3/1993, which means after 42 days from the passing of ex parte judgment

and decree. In other words, the delay of only 12 days has been caused in preferring the application. Even if the reason assigned in the application

for delay would have been ignored, although petitioner tried to justify the delay of 12 days by submitting specifically that on day (1/3/1993) when

plaintiff met him and informed him about the passing of ex parte judgment and decree, then he came to know about the ex parte judgment and

decree and immediately on the same day preferred the application under Order IX Rule 13 CPC, even then total delay caused in filing the

application was only 12 days. Order IX Rule 13 CPC categorically contemplates two exigencies that (i) if the summons were not duly served or

that (ii) if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. Here although petitioner

took stand that he never received registered notice sent to him by the Court but at the same time it is to be seen that whether petitioner was duly

served or not and if petitioner through his evidence specifically submits that he was not served and that aspect has not been categorically

established that petitioner did not appear despite being served then it is apparent that trial Court erred in passing the impugned order and appellate

court further erred in confirming it.

From the evidence (record) available on record,it appears that respondents have not led any evidence in counter to the evidence led by the

petitioner. Petitioner led three witnesses in his support including the petitioner himself. The witnesses took specific stand that the registered notice

was never served over petitioner. This aspect assumes importance, in overall fact situation of the case, when the case is in respect of application

under Order IX Rule 13 CPC because in these proceedings it is expected from the trial Court to see that any party may not be prejudiced for

insufficient service. Here it appears that petitioner is prejudiced from the impugned orders because immediately after ex parte judgment and decree

dated 18/1/1993, he approached the trial Court with an application under Order IX Rule 13 CPC. Considering the laps of time (25 years) if the

trial Court would have accepted the application then and there only then by now fate of the case would have been different but hyper technical

approach by the trial Court covered the 1/4 of the Century.

This fact further assumes importance in view of submissions advanced by the counsel for the petitioner that originally the suit was filed by the

plaintiff for recovery of possession and mesne profits on 1/4/1970 and on 10/7/1979, the suit got dismissed for want of prosecution due to

absence of plaintiff at the time of evidence when defendants'' witnesses Chimaram and Chhotelal were present. On 30th April, 1991, the suit was

restored and on 14/12/1992, defendant (present petitioner) was proceeded ex parte on the basis of note on the registered notice that he declined

to accept the notice and therefore, ex parte judgment and decree has been passed on 18/1/1993. In this factual backdrop (rather chequered

history), it is imperative that both the parties should get an opportunity to contest on merits because petitioner, immediately after passing of ex parte

judgment and decree is contesting the case.

Here the trial Court as well as appellate Court did not consider these aspects while arriving to the conclusion and took a hyper technical

approach while deciding the application. Therefore, the orders passed by trial Court as well as appellate Court appear to be pervers and suffer

from jurisdictional error and therefore, deserves to be set aside. Trial Court is directed to restore the suit to its original number.

As both the parties are present before this Court, they are directed to appear before the trial Court on 6/2/2018. No further notice to the

parties would be necessary. It is made clear that within two months from the date of appearance, parties would have to complete their pleadings, if

any, and thereafter trial Court shall be free to proceed with the trial and for recording evidence and will make an endeavour to complete the trial as

expeditiously as possible preferably within six months from the date of appearance. Petitioner is in the twilight zone of his life and plaintiffs are also

no more young and going older with the passage of time, therefore,it is expected from both the parties that they would not seek any undue

adjournments in the trial Court and if any unnecessary adjournment is sought then trial Court is at liberty to deal with them as firmly as possible.

Looking to the longstanding litigation, at the instance of petitioner, petitioner is liable to pay cost of Rs. 20,000/- (Rs. Twenty Thousand) to the

respondent/plaintiffs which shall be paid by the petitioner on the date of appearance before the trial Court i.e. 6/2/2018. Revision stands allowed

and disposed of with the aforesaid direction.