Hindustan Aeronautics Ltd. vs Ultramatrix Systems Private Ltd.

P.K. Tripathy, J.—Heard.

This Civil Revision is disposed of at the stage of hearing on admission with their consent and after hearing learned counsel for both the parties.

It reveals from the LCR that petitioner as the plaintiff filed Money Suit No. 141 of 1991 in the Court of Subordinate Judge (Civil Judge (Sr. Division) at Jeypore. For the failure of the defendant to file written statement he was set ex parte on 30.3.1993. The suit was thereafter adjourned from time to time for ex parte hearing. Such hearing was concluded on 19.8.1995 when argument was heard and thereafter on 4.9.199,5 judgment was delivered by granting ex parte decree in favour of the plaintiff. On 25.4.1997 defendant filed application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (in short ''the Code'') and that was registered as M.J.C. No. 25 of 1997. When the Court of Civil Judge (Sr. Division) was opened at Koraput, on the ground of jurisdiction, that MJC was transferred. Accordingly, MJC No. 25 of 1997 was registered as MJC No. 11 of 2000 in the Court of Civil Judge (Sr. Division ), Koraput and presently the suit has been registered as Money Suit No. 32 of 2000.

Order passed on 30.6.2000 in MJC No. 11 of 2000 of the Court of Civil Judge (Sr. Division), Koraput is under challenge. Plaintiff/opposite party in the Court below is the petitioner and Defendant/petitioner is the opposite party in this Civil Revision.

Though ex parte decree was passed in the aforesaid money suit on 4.9.1995, but the application for restoration was filed after a delay of about two and a half years. The grounds explained by the defendant was that the company was in a very bad shape, nobody was there to take care of individual litigations and the company had been indebted at different branches throughout the Country and therefore in the process of re-shaping the company the defendant could not pay any attention to the progress in the suit, which in the meantime was decreed ex parte. Explaining the delay and also seeking the relief under Order-IX, Rule 13 of the Code the aforesaid contention was advanced by the defendant. Plaintiff filed a counter and contested to that application. Ground advanced by the plaintiff is denial to the aforesaid pleas of the defendant. In course of hearing of the application under Order-IX, Rule 13 of the Code, defendant examined one witness i.e., P.W. 1, the Director, who was managing the affairs of the suit and company matters and relied on the documents vide Ext. 1. As against that plaintiff did not adduce any evidence.

On perusal of the application and the counter, assessment of evidence on record and considering the legal position, learned Civil Judge (Sr. Division) rejected the contention of the plaintiff that the application under Order-IX, Rule 13 of the Code was not maintainable for the lack of a verification while the application was supported by an affidavit. He found that the ground advanced by the defendant (P.W. 1) was sufficient to show existence of sufficient cause not only in explaining the delay for tbe entire period but also for nonparticipation of the defendant in the suit and accordingly passed the impugned order by setting aside the ex parte decree subject to payment of cost of Rs. 10, 000/- (ten thousand).

Mr. Rao, learned counsel for the petitioner stresses much on the contention raised by the petitioner in the application under Order-IX, Rule 13 of the Code vis-a-vis the evidence of P.W. 1 and states that sufficient cause was not shown or established either for explaining the delay or for condoning the conduct of the defendant in not participating in the suit. Accordingly, he states that the impugned order be set aside. Referring to the case of Kalinga Paints and Chemicals (P) Ltd. Vs. The Secretary, Works Department, Government of Orissa, Bhubaneshwar and Others, alternatively he argues that a direction similar to the direction at paragraph-11 in the reported decision may be passed to secure the suit amount.

Mr. Sarangi, learned counsel appearing for the defendant/ opposite party, however, advances argument supporting the impugned order and also states that because of the bad financial condition of the company which is evident from Ext. 1 defendant is not in a position to secure the suit amount. He further states that so far as the claim of the plaintiff is concerned, it is being contested by the defendant and a written statement having already been filed in the Court below, defendant may not be directed to deposit any amount.

It appears from the lower court records that the grounds advanced by the petitioner relating to the inability to contest the suit by filing a written statement and participating in the hearing of the suit and the reasons for not filing any application under Order-IX, Rule 13 of the Code within the statutory period of 30 days from the date of ex parte decree has been stated by P.W. 1 besides making such assertion in the body of the application. Plaintiff/ opposite party though denied to that allegation but absolutely it did not adduce any rebuttal evidence. When the matter stood thus, the Court below in exercise of the discretion vested in it has appreciated the facts and circumstances and extended the discretion in favour of the defendant and has accordingly set aside the ex parte decree. Under such circumstance, and in the absence of illegality or perversity in that approach, this Court is not supposed to interfere with that factual finding while in seisin of the matter u/s 115, of the Code. In the case of Kalinga Paints & Chemicals (supra) in paragraph 10, this Court has reiterated that- "When an ex parte decree is set aside, this Court would not normally interfere with the same. If precedent is searched for 37 (1971) CLT 124 (Kelu Charan Pradhan v. Mani Ram), where substantial justice is done, there should be no interference. "For the reasons indicated above, this Court does not think it proper to interfere with the aforesaid finding of fact and particularly when there is no rebuttal evidence from the side of the plaintiff to caste doubt on the genuineness of the reason assigned by the defendant.

Plaintiff invites attention of this Court to paragraph-11 of the above cited decision and prays to pass a similar order in this case. In paragraph-11 of the above cited decision, this Court had opined that :

"In the circumstances, I direct that defendants shall pay cost of Rs. 5,000/- (five thousand) to plaintiff and shall deposit the principal amount claimed within six weeks from today failing which order of setting aside the decree shall stand vacated and ex parte decree shall stand confirmed without further reference to this Court."

In that respect in paragraph 10 of the cited case Honourable Judge observed that while setting aside the ex parte decree the trial Court did not make adequate provision for protecting the interest of plaintiff and accordingly made the above quoted direction. That observation having no binding effect of a ratio and in this case since the parties are at issues on the claim of the plaintiff, therefore, this Court is not inclined to make a similar direction in this case.

It appears from the lower Court record that cost of Rs. 10,000/-has been deposited by the defendant and since the plaintiff refused to receive the same it has remained deposited. In view of the above order, if the plaintiff will so desire, he may withdraw that amount and in that respect if any application shall be moved the Court below shall allow the same. It also reveals from the L.C.R. that in the meantime, written statement has already been filed, issues have already been settled and thereafter the suit was dismissed for default and it has also been restored to file. Therefore, the suit is ready for hearing.

For the reasons indicated above, the Civil Revision stands dismissed. Send back the L.C.R. immediately to the Court below along with a copy of this order. Learned Civil Judge (Senior Division), Koraput is directed to take up hearing of the suit expeditiously by resorting to day to day hearing and to dispose of the same as early as possible and within a period of three months from the date of receipt of the L.C.R. Effort for delay by any of the parties be subject of exemplary cost and such adjournment on each occasion shall not exceed maximum period of one week. Both the parties are directed to coroperate for early disposal of the suit.