Bhagwandas Bajoria vs E.I.D. Parry Limited and Others

S. Acharya, J.—The Appellant in Miscellaneous Appeal No. 191/75 was Defendant No. 2 in Money Suit No. 339/70. The Appellants in Miscellaneous Appeal No. 203/75 were Defendants 1 and 3 in the said money suit. The above mentioned suit against the Appellants in both the appeals was decreed ex parte on 24-7-1975. So, the Appellants in Misc. Appeal No. 191/75 and Misc. Appeal No. 203/75 filed petitions under Order 9, Rule 13, CPC read with Section 151, CPC for setting aside the said ex parte decree against them. On their petitions Misc. Case No. 19/75 and Misc. Case No. 20/75 1 respectively were registered. Both the petitions having been rejected by the Court below by its orders dated 25-11-1975 in the said Misc.. Case, they have preferred these two appeals. As the facts in both the cases are almost identical and the points for consideration are the same, they were taken up for analogous hearing, counsel appearing for the respective parties advanced only one set of arguments, and so they are being disposed of by this one judgment.

Because of the pleadings of the respective parties in the suit Defendants admittedly were at first to lead evidence in the suit. On 24-7-1975, to which date the suit was set for hearing 1 and the Defendants were to lead evidence, Defendants 1, 2 and 3 (the Appellants in both the appeals) filed two petitions for adjournment of the hearing of the suit on the ground that Defendants 2 and 3 could not come to Court on that date due to their illness. Along with the petition filed by Defendant No. 2, a medical certificate was filed in support of his illness. The petition filed on behalf of Defendant No. 1 (a Company) and Defendant No. 3 was not supported by any medical certificate. As the doctor, who granted the medical certificate attached to the petition filed by Defendant No. 2, had advised complete rest for Defendant No. 2 for 15 days but all the Defendants wanted adjournment of the suit for one month, the Court below disbelieved the grounds on which the petitions for adjournment were filed, and it rejected the said petitions and directed the Defendants to get ready for the hearing of the suit at once. As the Defendants did not adduce any evidence, the suit was taken up for ex parte hearing, and without examining any witness on behalf of the Plaintiff and merely on the submissions of the counsel of the Plaintiff the Court closed the hearing of the suit and delivered the ex parte judgment on 31-1-1975. Thereafter on 7-8-1975 the above mentioned Defendants filed petitions under Order 9, Rule 13 read with Section 151, CPC for setting aside the said ex parte decree, and the said petitions were dismissed by the orders which are now impugned in these two appeals.

The case put forward by Defendant No. 2 in Misc. Case No. 19/75 is that from 20-7-1975 he was suffering from Para Typhoid till after the date of hearing of the suit, and so on 24-7-1975 when the suit was set for hearing he was not in a position to take any steps for the hearing of the suit and therefore he through his lawyer, prayed for adjournment of the hearing of the suit by furnishing a medical certificate in support of his illness. The Plaintiff opposite party in the said Misc. Case challenged the Petitioner''s case of illness as false and asserted that Defendant No. 2 was present in Court on the date of hearing and instructed his lawyer to file the petition for adjournment. At the hearing of that Misc. Case the Defendant No. 2 examined himself, the doctor who granted the medical certificate and his Law Agent. On behalf of the Plaintiff-opposite party, the Field Officer and an Office Assistant of the Plaintiff. Company were examined. The Court below, on its own appreciation of the evidence on record, disbelieved the Petitioner''s case of illness at the relevant time, held that he intentionally defaulted to take part in the hearing of the suit, and accordingly it dismissed the Petitioners prayer to set aside the ex parte decree.

The case put forward by the Petitioners in Misc. Case No. 20/75 (Defendants 1 and 3 in the suit) was that Defendant No. 3, who was looking after the case on behalf of the Defendants, was suddenly laid down with high blood pressure from 23-7-1975 and so he could not take part in the hearing of the suit on 24-7-1975. It was pleaded that there was no intentional default on the part of the Petitioners to get ready for the hearing of the suit. The Plaintiff resisted the said petition by stating that the case put forward by the Petitioners for setting aside the ex parte decree was false Defendant No. 3 was not sick on the date of bearing he was present in the Court premises during the Court hours on the date of hearing, and was instructing his employees to file petitions for adjournment of the suit. On behalf of the Petitioners in this Misc. Case, Defendant no 3 and the Advocate''s Clerk who was looking after the suit on behalf of these Defendants were examined. The opposite party examined the Advocate''s Clerk who was looking after the suit on its behalf, one Sales Officer and one Assistant of the Plaintiff-Company. The Court, on its own appreciation of the evidence adduced, found that Defendant No. 3 was not ill at the relevant time: he intentionally defaulted to take steps for the hearing of the suit, and accordingly it dismissed the said petition for restoration of the suit.

I have gone through the evidence adduced by the parties in both the cases and I find that the evidence of illness of Defendants 2 and 3 on the date of hearing adduced in these cases on behalf of the Petitioners is not of a very convincing nature. The doctor (p.w.1) who granted the medical certificate about the illness of Defendant No. 2 is a private medical practitioner. The said certificate was granted on 24-7-1975, i. e. on the date of the hearing of the suit. Defendant No. 2, as is evident, is a well to do man, and if he really suffered from Para-Typhoid from 20-7-1973 and was in extreme disability, as mentioned in the medical certificate (Ext. 1) granted by p.w. 1, then it was expected that Defendant No. 2 would have consulted some medical Specialist of this town for his treatment and would not have remained contended on the treatment of a retired military doctor who, as admitted by himself was not a regular practitioner. Moreover, according to p.w. 1, he did not grant any prescription to Defendant No. 1 but supplied medicines for Defendant No. 1 from his own shop. But according to p.w. 3, the Petitioner, the doctor p.w. 1 was not selling any medicines. The evidence of p.w. 1 that he granted the said medical certificate (Ext. 1) on the evening of 24-7-1975 by about 6 or 7 p.m. is also another unconvincing feature, as that could not have been so as the said medical certificate was filed in Court on 24-7-1975. On a perusal of the evidence on record and in view of the distinct advantage of the Court below to mark the demeanour of the witnesses examined before it, it becomes difficult for me to go against the finding of the Court below that the Petitioner has not been able to establish his case of illness on the date of hearing.

In Misc. Case No. 20/75 no medical certificate was filed about the illness of Defendant No. 3 on the date of bearing. The Kabiraj Balaram Misra, who, as alleged, medically treated Defendant No. 3 for Blood Pressure was not examined in Court, though the Court specifically granted adjournment to the Petitioners to that effect. No step even to summon the Kabiraj was taken in this case and no explanation was offered for the non-examination of that Kabiraj. Defendant No. 3 stated that an allopathic doctor had also examined him to determine his Blood Pressure, but the said allopathic doctor also was not examined in this case. P.w. 2, the Advocate''s Clerk who was looking after the case, stated that Defendant No. 3 was under the treatment of one Kabiraj, but he could not name that Kabiraj.

On a perusal of the evidence adduced on behalf of the Petitioners in Misc. Case No. 20/75 I am of the opinion that the evidence of illness of Defendant No. 3 is not of a satisfactory and convincing nature, and so I am not inclined to interfere with the finding of the Court below that the Petitioners could not establish the case of illness of Defendant No. 3 in this case.

Though the case of illness of both the Petitioners in both the Misc. Cases has not been established satisfactorily, the evidence adduced on behalf of the opposite party that Defendants 2 and 3 were present in Court on the date of hearing does not also inspire confidence. On the date of hearing, when the petitions for adjournment of the suit on ground of illness were filed in Court, no affidavit, not even a verified statement, on behalf of the Plaintiff was filed on that date to assert that Defendants 2 and 3 were actually present in Court on that date. P.w. 1, who as alleged was looking after the suit on behalf of the Plaintiff, has admitted that he did not advise the Plaintiff''s Advocate to bring it to the notice of the Court that the said two Defendants were present in Court premises on that date. The Defendants are wealthy businessmen of the town, which is evident from the fact that they had business transactions only with the Plaintiff. Company to the tune of a few lakhs of rupees. Defendant No. 2 is about 58-59 years old and his father Defendant No. 3 is about 70.71 years-old P.w. 2 in Misc. Case No. 19/75 was the Law Agent of the Company of which Defendants 2 and 3 were the partners and he attended the Court on that date. The Defendants had also engaged Advocates and they and their Clerks were looking after the cases. On the above facts and premises if really the Defendants wanted to have adjournment of the cases on the plea of absence of Defendants 2 and 3 from the Court due to illness, it was not necessary for or expected of them, and specially for both the father and the son, the former being 70 years old, to come to the Court only for the purpose of instructing their Law Agent and their Advocates to file petitions for adjournment. In the facts and circumstances stated above, the evidence adduced on behalf of the Plaintiff, that both Defendants 2 and 3 were present in Court to instruct their lawyer to pray for adjournment on the ground of their absence from Court due to illness, sounds improbable and it becomes difficult for me to accept that evidence.

From the order dated 24-7-1975 passed in Money Suit No. 339/70 it is seen that on that date two petitions for adjournment on ground of illness of Defendants 2 and 3 as stated above were filed, and only the petition filed by Defendant No. 2 was supported by a medical certificate. The Court by the said order rejected the adjournment petitions by stating - "It is strange that all the three Defendants fell ill simultaneously. This remarkable coincidence coupled with the further coincidence that all need about one month''s time to recover although according to the medical certificate Defendant No. 2 should need only 15 days time leads me to disbelieve the grounds for the time petitions. Hence I reject the petitions and direct the Defendants to be ready for hearing at once." From the said order it is quite evident that the Court acted in haste, and without properly'' applying its mind to the said petitions it proceeded to reject the same on grounds which are not sound and/or convincing. Three Defendants could not have fallen ill, for Defendant No. 1 is a partnership firm; and the Petitioner''s prayer for adjournment for a month in the face of the doctor''s recommendation for 15 days'' rest for Defendant No. 2 cannot be a ground for disbelieving and/or rejecting both the said petitions. After rejecting the said petitions as stated above, it directed the Defendants to get ready for the hearing of the suit at once and, as seen from the later order passed on that date, as the Defendants did not take any steps in that direction, it without examining anybody on behalf of the Plaintiff and only on hearing the Plaintiff''s advocate on that day closed the hearing of the suit. On such hearing it decided the Plaintiff''s suit for realisation of Rs. 4, 97, 417. 08 with costs and pendants lite and future interest at 6 per cent per annum from the Defendants.

The later order passed on 24-7-1975 by the Court below shows that when the suit was taken up for ex parte hearing the Plaintiff''s lawyer submitted that "in view of the Defendants admission in the written statement, the Plaintiff did not want to adduce any evidence" in the case. From the ex parte judgment passed in this case it is quite evident that the Defendants, while admitting in their written statement the execution of the document dated 25-7-1969 for payment of Rs. 4, 66,000/ - with interest at 12 per cent per annum, assert that one Sri Laxmi Narayan, the Assistant Manager of the Plaintiff Company, obtained the same and some other documents from the Defendants by exercising undue influence, and so these documents could not create any liability since they were not executed out of free will and volition of the Defendants. It is also seen from the written statement that the Defendants have denied the execution of the document dated 25-7.69 or to have acknowledged any liability by their letter dated 24/25-7-1969. In view of the above stand taken by the Defendants in their written statement, the Court below was not justified in proceeding to pass an ex parte decree for such a huge sum of money merely on the submission of the Plaintiffs advocate as stated.

Mr. Murty, the learned Counsel for the Plaintiff Respondent, contends that as the Defendants could not satisfactorily establish in the Court below that they were prevented by sufficient reason from appearing in the trial Court on the date of hearing, and that finding has to be upheld in view of the evidence on record, this Court has no jurisdiction to set aside the ex parte decree on any other ground, as the provisions of Order 9, Rule 13, CPC do not enable the setting aside of a decree on any ground other than the grounds specifically mentioned therein. Mr. Murty in this connection states that the valuation of the suit and/or the consequences of the ex parte decree or the manner in and the material on which the same was passed cannot weigh with the Court to set aside the ex parte decree. True it is that the Defendants in the Court below could not satisfactorily establish their case of non-appearance in the Court due to the illness of Defendants 2 and 3. But at the same time in dealing with a matter of this nature at this level, one cannot lose sight of the facts, circumstances and the reasons on which the petitions for adjournment were rejected and the manner of its rejection, the materials on which the suit was decreed and the consequences of the IX part, decree.

Apart from the provisions of Order 9, Rule 13 there is Section 151 in the CPC which enables the Courts to deal with such matters in accordance with law and in doing so to pass any order as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

In Manohar Lal Chopra v. Rai Bahadur Raw Raja Seth Hiralal AIR 1961 S.C. 517, it has been held by their Lordships that:

.... The Section 151, CPC itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice.

In the face of such a clear statement it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.

Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.

Chief Justice Chagla in delivering the judgment of the Division Bench case in Sarupsing Mangatsing v. Nilkant Bhaskar AIR 1053 Bom. 109 has accepted with approval the contention of the Defendant-Appellant''s lawyer that apart from Order 9, Rule 13, CPC this Court has inherent jurisdiction to set aside an ex parte decree.

In Lalta Prasad and Anr. v. Ramkaran ILR (1012) 8 All 426, the Division Bench of that Court observed that even though it is difficult to hold that there was sufficient cause to set aside the ex parte decree, the Court may exercise its inherent power of passing orders necessary for the ends of justice. Their Lordships in that case said:

Nothing in the Code of CPC can limit or otherwise affect such powers under which, in our opinion, a Court can restore such a case as this on sounds other than sufficient cause for non-appearance. Order 9, Rule 9 makes it compulsory on a Court to set aside a dismissal under Order 9, Rule 8 where the Plaintiff, satisfies the Court that there was sufficient cause for non-appearance. It, however, cannot take away the Court''s power to restore the case for any other valid reason.

This observation was accepted with approval in the Division Bench case in Bilasrai Laxminarayan v. Cursondas Damodardas ILR 44 (1920) Bom. 82, which view was again referred with approval in the aforesaid case in Sarupsing Mangatsing v. Nilkant Bhaskar AIR 1053 Bom. 109.

Again Chief Justice Chagla in deciding the case Bai Dahi Vs. Shankarbhai Deojibhai, , observed that the Court has undoubtedly very wide powers u/s 151, CPC to restore suits independently of Order 9, Rule 9. CPC Code.

In the Division Bench case in Mt. Balmati Kuari Vs. Jagbandhan Nath Tewary and Others, , the contention that the lower Court bad no jurisdiction to set aside the final decree in exercise of its inherent powers was not accepted, and their Lordships held that the lower Court properly exercised its inherent jurisdiction in setting aside the final decree passed in the case.

In Kunj Behari Das Vs. Chanchala Das and Others, , G.K. Misra, J., as he then was, held that the powers of the Court u/s 151, CPC can be invoked for restoration of a proceeding under Order 9 dismissed for default.

My view, that in order to do justice in a suitable case an ex parte decree can be set aside or a suit dismissed ex parte can be restored for hearing by invoking the powers u/s 151, CPC even though the requirement of ''sufficient cause'' as provided under Rules 9 and 13 of Order 9, CPC is not complied with, gets fun support from the above mentioned decisions. Once the requirements for setting aside the ex parte decree laid down in Order 9, Rule 13. CPC are satisfied, the Court ''shall'', and it has no other way but to, set aside the ex parte decree and restore the suit for a fresh hearing. Therefore, the satisfaction of the requirements of Order 9, Rule 13, CPC binds the Court In a compulsory manner to set aside the ex parte decree. But apart from such compelling reasons to set aside the ex parte decree, there may arise in a suitable case various other reasons which may impel the Court to set aside the ex parte decree in order that real justice can be done between the parties, and in such a case the powers u/s 151. CPC can be exercised in the interest of justice.

Mr. Murty cited the observation in K.B. Dutt Vs. Shamsuddin Shah Shaheb and Others, , which is to the effect that "If no case is made out to satisfy Rule 13, Order 9, it is not open to the Court to enlarge the rule by taking recourse to Section 151". Misra, J. in the case in Mayurbhanj Oil and Oil Product. Ltd. v. Munilal Ramdayal ILR 1960 Cutt 591, merely expressed agreement with the above view though he did not decide the matter on that view.

In view of the considered decision of this Court in Kunj Behari Das Vs. Chanchala Das and Others, , and the catena of decisions on the point mentioned above, I am not inclined to accept the above view in K.B. Dutt Vs. Shamsuddin Shah Shaheb and Others, . There is nothing in the case in Ladu v. Kalyanmal and Ors. AIR 1054 Ajmer 6 (1), to support the contention of Mr. Murty.

In view of the manner and the premises in which the suit was taken up for ex parte hearing, the material on which the ex parte judgment was passed, and considering the consequences of an ex parte decree for realisation of more than five lakhs of rupees on such materials, I am firmly of the opinion that this is a fit case ill which the inherent jurisdiction of the Court should be exercising the interest of justice to set aside the ex parte decree so that the Defendants can have an opportunity to contest the Plaintiff''s claim in to suit for such a heavy amount. Of course while setting aside the ex parte decree one has to direct the Defendants 1, 2 and 3 to pay adequate costs, before they are allowed to contest the suit, to compensate the Plaintiff for the consequential monetary loss and hardship sustained by it.

While I am inclined reasons stated above, I cannot lose to set aside the decree for sight of the fact that the Defendants did not set in a diligent manner to get ready for the bearing of the suit. In view of the order of the trial Court the Defendants were at first to lead evidence in this case, which was confirmed by this Court in Civil Revision No. 110/72. the Defendants should have acted in earnestness to produce all possible evidence and materials before the Court to counteract the claim of the Plaintiff. Till the date of hearing they had not taken any steps to summon any witness to support their case. Prior to the date of hearing, at their instance the Court had adjourned the suit on two occasions. On many previous occasions also the Defendants took adjournment in the case on some ground or other. No doubt, the Plaintiff also had obtained adjournment of the case on many occasions, but as the Defendants were to begin first in this case they should have taken all steps to produce their witnesses and other evidence in the case on the date to which the suit was finally fixed for bearing.

As the suit could not proceed for determination on merits due to the laches and negligence of the Defendants, the Plaintiff by now must have suffered heavy loss not only in contesting the different proceedings arising out of the passing of the said ex parte decree, but also in various other manners. That being so, it is hereby ordered that the ex parte decree passed against the Defendants shall be set aside only on condition that Defendant No. 2, Appellant in Misc. Appeal No. 191/75 and Defendants 1 and 3, Appellants in Misc. Appeal No. 203/75, either jointly or in two equal halves pay a sum of Rs. 150/ - as compensatory costs to the./'' Plaintiff or deposit the said amount in Court within three weeks from today. In case the said amount is not paid in full the ex parte decree against the Defendants shall stand confirmed In its entirety without any further reference to this Court and the Plaintiff shall be entitled to execute the same in accordance with law. If the aforesaid amount of cost is paid as directed above the ex parte decree shall be deemed as set aside and the Court below shall take up the suit for hearing and dispose of the same in accordance with law within as a short a time as possible. The Plaintiff will be entitled to withdraw the said amount of cost, if deposited, without furnishing any security.

The Miscallaneous Appeals are allowed accordingly.

There will be no order costs of these appeals.

The L.C.R. be sent back immediately.