Haridas R. vs B. Kamal Kishor

B.S. Patil, J.—This appeal is filed challenging the order dated 22.04.2015 dismissing the petition filed by the appellant under Order IX Rule 13 CPC for setting aside the ex-parte judgment and decree dated 16.08.2014 passed in O.S. No. 7287/2013.

Appellant herein was the defendant in the suit filed by the respondent for ejectment of the defendant from the suit schedule premises and for a direction to pay damages. It was contended by the plaintiff that defendant had entered into lease agreement with the plaintiff for a sum of Rs. 1,75,000/- and had come in possession of the property and after expiration of the lease period, he did not hand over the suit property, therefore plaintiff got issued legal notice terminating the tenancy, but despite service of notice, defendant did not vacate, and therefore, he was constrained to seek ejectment of the tenant along with prayer for payment of monthly damages in a sum of Rs. 7,500/-.

Defendant-appellant herein appeared through his Counsel. He did not file written statement. Plaintiff examined himself as PW-1 and produced and marked Exs. P1 to P. 16. Defendant did not cross-examine the plaintiff nor did he lead any evidence. That is how the Trial Court proceeded to dispose of the suit holding that plaintiff had established that he was the landlord of the suit schedule premises and the defendant was the tenant. It found that the tenancy was duly terminated and therefore, plaintiff was entitled for a decree of ejectment. The Trial Court also held that plaintiff was entitled for the relief of damages of Rs. 7,500/- per month from the date of termination of the lease.

After the passing of the said decree, defendant filed Misc. No. 749/2014 under Order IX Rule 13 CPC seeking to set aside the judgment and decree passed contending inter alia that though he was a tenant under the plaintiff-landlord, there was no termination of tenancy. He had engaged a Counsel for representing his case, but whenever he contacted the advocate, the advocate informed him that the case had been adjourned to a future date and thus, there was no proper communication by the Counsel, and therefore, he could not file the written statement well within the stipulated period. He further contended that he was unaware of the procedures and the legal aspects and he believed his Counsel. Only on 03.09.2014, he came to know about the judgment passed in favour of the respondent when the respondent disclosed the said fact to third parties in the vicinity of the suit premises. Thereafter, he made immediate efforts to contact his counsel and confirmed the passing of the decree. He, thus contended that non-appearance and non-filing of written statement was not intentional, but was for reasons stated above.

The miscellaneous petition was resisted by filing objections. The court below held an inquiry into the same by recording evidence of the parties and has eventually dismissed the miscellaneous petition.

Learned Counsel for the appellant submits that the court below has not taken note of the fact that serious prejudice and injustice was caused to the appellant due to non-communication of the stage of the proceedings by the advocate representing them in the suit. He, therefore, contends that it was not a case of negligence on the part of the appellant, but a case of bona fide mistake in not appearing before the Court by trusting the counsel who had been engaged. It is urged by the Counsel for the appellant by referring to the application filed in IA-2/2015 seeking permission to produce the document styled as lease agreement dated 06.07.2011 that a huge sum of Rs. 8 lakhs has been paid by the appellant to the landlord in consideration of the lease stipulating therein that the lease shall be for a period of five years and the said sum of Rs. 8 lakhs deposited with the landlord shall be returned after the expiry of the period without interest and that the lessee need not pay rent to the premises. It is his submission that if the appellant is given an opportunity, he would be in a position to produce the said document and contest the claim for ejectment on merits.

Per contra, learned Counsel for the respondent strongly denies the execution of any such document by the landlord or receipt of the said sum of Rs. 8 lakhs and urges that this was a case of negligence on the part of the defendant-appellant in contesting the suit, and therefore, no sufficient cause was made out in terms of the provisions contained under Order IX Rule 13 CPC, to set aside the decree passed. He has placed reliance on the judgment of the Apex Court in the case of Parimal Vs. Veena @ Bharti, .

Having heard the learned Counsel for both parties and on careful perusal of the materials on record, I find that the facts involved as narrated and adverted to by the court below disclose that at the first instance, defendant did not reply to the legal notice issued by the plaintiff. It was not his case as is sought to be asserted now that he had paid a sum of Rs. 8 lakhs by way of advance deposited under the lease transaction entered into between the plaintiff and the defendant. After the suit was filed, he did not choose to file written statement though he engaged the services of an advocate. When the evidence of the plaintiff was adduced and as many as 16 documents were marked in evidence, defendant did not choose to cross-examine PW-1. Though the matter was set down for his evidence, he did not lead his evidence. It was in this background, the Trial Court proceeded to hear the arguments of the plaintiff, considered the case made out by him and passed the judgment and decree in the suit. In the application filed seeking to set aside the ex-parte decree, the defendant has not made any allegation against his advocate. At the time when the miscellaneous petition was filed, no complaint had been lodged against the advocate nor any notice was issued to him imputating omission, inaction or negligence on the part of his advocate.

As rightly observed by the court below by considering the evidence on record, apart from entering appearance through the advocate, the defendant did not do anything to file written statement although sufficient opportunity was given to him, nor did he choose to cross-examine PW-1, and thus, the conduct of the defendant disclosed that he was not diligent in defending himself in the suit. The court below has also taken note of the fact that although the defendant had remained absent, plaintiff admitted the amount towards the advance deposit paid to him in a sum of Rs. 1,75,000/-, and the same has been ordered to be deposited into the court in the suit and that only thereafter he would be entitled to damages in a sum of Rs. 7,500/- per month.

This is a case of termination of tenancy and the resultant relief sought for ejectment of the tenant from the premises. The Trial Court has proceeded on the basis of the materials available on record and the decree has been passed by providing sufficient opportunity to contest the suit.

The court below in the miscellaneous proceedings has found that in the wake of the conduct of the defendant and having regard to the nature of the dispute, no injustice had been done and if the decree were to be set aside, it would cause serious prejudice and hardship to the plaintiff-land owner. I do not find any illegality or perversity in the findings recorded and the conclusion reached by the court below. The document that is now sought to be produced by way of additional evidence cannot be taken into consideration at this stage in this appeal. Whether that document is admissible in evidence or whether as per the said document, the defendant-tenant had indeed paid huge sum of Rs. 8 lakhs are matters that the defendant-appellant, if advised, can agitate before the appropriate forum in accordance with law.

Learned Counsel for the respondent herein is right and justified in placing reliance on the judgment of the Apex Court referred to supra. In the said judgment, the Apex Court has while dealing with the word ''sufficient cause'' used in Order IX Rule 13 CPC for setting aside ex-parte decree, has held that the word ''sufficient'' embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances. The test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case''.

Thus, having regard to the facts adverted to above and the conduct of the defendant, it is clear that this is not a case where the defendant had sufficient cause for his omission. Explanation offered does not reflect that defendant sincerely intended to remain present and defend himself in the court below. As is evident from the order under challenge, several opportunities were given and the defendant did not turn up either to file written statement or to cross-examine PW-1, nor to lead his evidence. Therefore, no case of honest and sincere intent on the part of the defendant to defend himself in the proceedings was established. There is no sufficient cause made out by the defendant.

Hence, this appeal is dismissed. However, as the appellant is in occupation of the premises, he is given 60 days time to vacate and hand over the vacant possession of the premises.