Gurmeet Chand and Another vs Ajit Singh

Daya Chaudhary, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 25.11.2009 passed by Additional Civil Judge (Senior Division), Hoshiarpur and order dated 10.11.2010 passed by Additional District Judge, Hoshiarpur whereby, application filed by the petitioner for setting aside the ex parte decree dated 30.10.2006 has been dismissed. Briefly, the facts of the case, are that the respondent filed a civil suit on the basis of agreement claiming possession by way of specific performance of the agreement with regard to 9 Marlas 151 square feet of land for a total sale consideration of Rs. 2,70,000/-. It was alleged that the petitioners have received Rs. 1 lac as earnest money to execute the sale-deed, but did not carry out the contract. Notice was issued in the suit and the same was received by the petitioners and accordingly, an advocate was engaged. Petitioners being illiterate persons believed the lawyer, who assured them that the outcome of the suit would be informed to them. Subsequently, the petitioners came to know that the suit has been decreed in favour of plaintiff respondent and this fact came to the knowledge of the petitioners in the month of April 2007 when respondents asked the petitioners to execute sale deed in their favour. Petitioners contacted their lawyer and got certified copy of the judgment and decree dated 30.10.2006 on 09.04.2007.

Thereafter, an application under Order 9 Rule 13 CPC was filed which was dismissed on 25.11.2009. Thereafter, an appeal was filed against order dated 25.11.2009 before the District Judge, Hoshiarpur, which was also dismissed vide order dated 10.11.2010.

The present revision petition has been filed by the petitioners for setting-aside the orders passed by Additional Civil Judge (Senior Division), Hoshiarpur as well as order passed by learned Additional District Judge, Hoshiarpur. Learned counsel for the petitioners submits that the application filed by the petitioners has been dismissed on the grounds that the petitioners have not been able to substantiate what has been stated in the affidavit as they have stated in cross examination that they are not aware as to what has been written in the affidavit as the affidavit was not read over and explained by their counsel.

Learned counsel for the petitioners further submits that the petitioners being illiterate and rustic villagers are not aware about the technicalities of law. Learned counsel also submits that the petitioners believed their lawyer, who was engaged by them and after getting their power of attorney, no written statement was filed by their lawyer and he remained absent also which is clear from the order dated 16.04.2007 passed in the application. The contents of application shows the bona-fide of the petitioners still application has been dismissed. Learned counsel for the petitioners also relies upon the judgments of Hon''ble the Supreme Court in Lal Devi and Another Vs. Vaneeta Jain and Others, and G.P. Srivastava Vs. Shri R.K. Raizada and Others, as well as judgment of Kerala High Court in Thomas P. Abraham Vs. Aleyamma Abraham, and judgments of this Court in Bhagwant Singh v. Sukhjit Kaur and another 2001 (1) CCC 150 and Gram Panchayat, Sarswati Khera Vs. Ram Kishan and others,

Learned counsel for the respondent opposes the submissions made by learned counsel for the petitioners on the ground that the petitioners have not approached the Courts with clean hands as they have concealed the material facts regarding filing of earlier Civil Suit No. 60 of 2005 tilted Ajit Singh v. Gurmit Chand regarding property in dispute which was dismissed as withdrawn with permission to file fresh on 26.07.2005. Learned counsel for the respondent also submits that the petitioners were aware about the notice issued in the suit and they appeared along with their counsel and the suit was adjourned for filing written statement but subsequently, neither petitioners appeared nor their counsel and their absence was intentional.

Heard the arguments of learned counsel for the parties and have also perused the impugned orders and other documents on the file.

Admittedly, the petitioners filed an application under Order 9 Rule 13 CPC, which was dismissed. The ground which has been taken by the petitioners is that they were not aware about the ex parte order as they believed their lawyer but subsequently, this fact came to their notice when they were told about the same by the respondent.

For consideration of issue in the present case, it is necessary to read Order 9 Rule 13 CPC, which is reproduced as under:-

Order 9 Rule 13 CPC

The aforesaid provisions read as under:

Setting aside decree ex-parte against defendant - In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

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Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.

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As per provisions of Order 9 Rule 13 CPC, the ex-parte decree can be set-aside by the Court in case, the Court is satisfied that the summons have not been duly served or the party was prevented by the sufficient cause from appearing before the Court when the suit was called for hearing. However, the Court shall not set aside the decree on mere irregularity in service of summons or in case, where the defendant had notice of the date as sufficient time was there to appear in the Court. The second proviso, which is mandatory in nature has been made by the legislature in its wisdom. The Court is not to allow the application in utter disregard of the terms and conditions incorporated in the second proviso. There should be a sufficient cause which has been used in large number of Statutes and it mean "adequate or enough". "Sufficient Cause" means that the party had not acted in a negligent manner or there was bona-fide on its part in view of facts and circumstances of the case. The facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason, which is to be exercised by the Court judiciously.

In Arjun Singh Vs. Mohindra Kumar and Others, , this Court observed that every good cause is a sufficient cause and must offer an explanation for nonappearance. The only difference between a "good came" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: 22 CWN 169 (Privy Council); Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, ; Mata Din Vs. A. Narayanan,

In order to determine the application under Order 9, Rule 13 CPC, the test which has to be applied is whether the defendant honestly and sincerely intended to remain absent when the suit was called for hearing or ''sufficient cause'' is there because of which defendant could not be blamed for his absence. There should be a reasonable defence. Although ''sufficient cause'' is a question of fact and Court is to exercise its discretion on the basis of facts and circumstances of each case as there cannot be a strait-jacket formula of universal application.

The Appellate Court has to decide the appeal by following procedure prescribed under Order 43 Rule 2 CPC, which provides that for that purpose, the procedure prescribed under Order 41 shall apply. As per Order 41 Rule 31 CPC, a procedure for deciding appeal is to be followed. The first Appellate Court has to formulate the points for its consideration and is to weigh the evidence on the issues, which arises for adjudication and record reasons on those points. The first appeal is a valuable right and the parties have a right to be heard both on question of law as well as on facts.

Accordingly, the First Appellate Court should not disturb and interfere with the valuable rights of the parties.

It has been held in various judgments of Hon''ble the Supreme Court that a liberal and elastic approach should be applied instead of narrow and pedantic. The Hon''ble Supreme Court in judgment Parimal Vs. Veena @ Bharti, has held as under:-

In view of the aforesaid statutory requirements, the High Court was duty bound to set aside atleast the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order 9, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order 9, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte decree. The manner in which the language of the second proviso to Order 9, Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement.

Similarly, in judgment of Hon''ble Supreme Court in Lal Devi and Another Vs. Vaneeta Jain and Others, the following observation has been made while dealing with the provisions of Order 9 Rule 13 CPC in Paras No. 15 and 16, which are reproduced as under:-

Having regard to the totality of circumstances we are of the view that in the interest of justice this appeal must be allowed. The learned District Judge recorded evidence, heard arguments and posted the matter later in the day for delivery of judgment. If the Court had adjourned the proceedings to another day after deciding to proceed ex-parte, the defendant could have applied for being permitted to participate in the proceedings. In this case since everything happened on the same day the defendant did not gel an opportunity to do so. The learned District Judge decided to proceed ex-parte. It thereafter examined the witnesses present in Court and proceeded to hear arguments. It reserved its judgment to be pronounced later in the day. Even before he could pronounce judgment counsel for the defendant had moved an application before him for recall of the order. It is true that in view of the law laid down by this Court in Arjun Singh (supra) the learned District Judge could not have entertained an application under Order IX Rule 7 C.P.C. We have also no hesitation in observing that counsel of the defendant were not careful enough to inform the learned District Judge about their pre-occupation before the High Court which prevented them from being present in his Court when the case was called for hearing. But the passing of an ex-parte decree in a case of this nature is too harsh a consequence to be upheld. The defendant cannot be made to suffer an ex-parte decree particularly when he was not at fault, having duly instructed his counsel to appear before the Court of the learned District Judge.

We are not delving into the technicalities of the legal questions argued before us because we are of the view that in the facts of this case the interest of justice demands that the ex-parte decree be set aside. We appreciate that the learned District Judge could not entertain an application under Order IX Rule 7 C.P.C., and even the application under Order IX Rule 13 was dismissed as not pressed. But nothing prevented the High Court from setting aside the ex-parte decree in the appeal preferred against it.

In view of the facts as well as the settled position of law, I am of the considered view that both the Courts below have not considered the facts and circumstances of the present case and application moved by the petitioners under Order 9 Rule 13 CPC has been dismissed. The grounds of rejection is very technical as the petitioners have stated in cross-examination that they were not aware about the contents of the affidavit as it was not read over to them. For illiterate and poor persons, the technicalities of law cannot be understood in the same manner as it is understood by the educated persons and as such, they cannot be kept at par. Moreover, the conduct of the petitioners is that they were assured by their lawyer that they would be informed about the outcome of the case but actually they were not informed. When this fact came to the knowledge of the petitioners immediately, an application was moved for setting aside ex-parte decree. In view of above, the revision petition succeeds and is allowed. The impugned order dated 25.11.2009 passed by Additional Civil Judge (Senior Division), Hoshiarpur and order dated 10.11.2010 passed by Additional District Judge, Hoshiarpur are set-aside and trial Court is directed to proceed with the suit in accordance with law.

Parties are directed to appear before the trial Court on 04.02.2013.