Md. Alam Khan and Others vs Jogendra Patro and Others

L. Mohapatra, J.—This Writ Application is directed against the order dated 25.6.2004 passed by the Learned Civil Judge (Senior Division), Berhampur in M.J.C. No. 109 of 1999 rejecting the application under the Order 9, Rule 13 of the CPC as well as the judgment and Order dated 12.8.2004 passed by the Learned District Judge, Ganjam in FAO No. 80 of 2004 confirming the order passed by the Learned Civil Judge.

The petitioners were defendants in T. S. No. 47 of 1991 and opposite parties 1 to 5 were the plaintiffs. The suit had been filed for eviction of defendants-petitioners from the suit premises and for other consequential reliefs. The suit was posted for hearing on 26.2.1999 and on that date both parties prayed for adjournment. The prayer for adjournment was rejected by the Court and the parties were directed to get ready for hearing. When the suit was taken up for hearing learned Advocate appearing for the plaintiffs-opposite parties filed hazira, but the Learned Advocate appearing for the defendants-petitioners filed memo of no instruction, as a result of which the defendants were set exparte on the said date. Thereafter the suit was posted to 16.3.1999 for exparte hearing. However, the ex parte hearing was taken up on 24.6.1999 and an exparte decree was passed on 27.7.1999. The petitioners filed an application under Order 9, Rule 13, CPC on 10.8.1999 to set aside the ex parte decree and the said application was registered as M.J.C. No. 109 of 1999.

Case of the petitioners before the Trial Court is that the petitioner No. 1 who is defendant No. 3 in the suit was looking after the suit on behalf of all defendants and could not come to Court on 26.2.1999 due to his illness. Since he could not come to Court on 26.2.1999 he could not impart any instruction to his Counsel and the Learned Counsel instead of pressing for adjournment of the suit reported no instruction. It was further contended that the petitioner No. 1 was ill from 25.2.1999 to 27.2.1999 and his absence on 26.2.1999 was on account of illness. Objection was filed on behalf of the plaintiffs-opposite parties. In the said M.J.C. the petitioner No. 1 was examined as witness who in his deposition stated that he was suffering from hyper-tension from 25.2.1999 to 27.2.1999. The Trial Court rejected the petition on the ground that the defendant No. 3 not being the sole defendant steps could have taken by other defendants on 26.2.1999.

The Appellate Court though accepted the stand taken by the petitioners that the Petitioner No. 1 was ill on 26.2.1999 came to conclusion that the actually ex parte hearing was taken on 24.6.1999 and the defendants-petitioners have no assigned any reason as to why they did not take any steps on 24.6.1999 and on that ground alone dismissed the appeal.

Shri Routray, Learned Counsel appearing for the petitioners submitted that the defendants-petitioners were set ex parte on 26.2.1999 and the ex parte hearing took place on 24.6.1999. The application had been filed not only under Order 9, Rule 13, CPC but also u/s 151 of the CPC and therefore if the Appellate Court was of the view that the application under Order 9, Rule 13 was not a properly constituted application the Court could have exercised inherent jurisdiction u/s 151 of the CPC to set aside the order dated 26.2.1999. It was further contended that on 26.2.1999 the petitioner No. 1 who was looking after the case remained absent due to his illness and prayer for adjournment having been refused by the Trial Court Learned Counsel appearing for the defendants-petitioners without any instruction submitted a memo of no instruction. Under such circumstances it was duty of the Court to issue notice to the present petitioners for engagement of some other advocate and having received no instruction from the advocate the petitioners remained in dark about ex parte decree. Learned Counsel on the basis of the above argument submitted that the orders passed by the Courts below should be set aside.

Shri Sarangi, Learned Counsel appearing for the plaintiff-opposite parties, on the other hand, submitted that even though the defendants were set ex parte on 26.2.1999 and the suit had been posted to 16.3.1999 for ex parte hearing. The ex parte hearing could not take place on 16.3.1999 and the suit was adjourned from time to time till 24.6.1999 when ex parte hearing was taken up. Had the defendants-petitioners been diligent they could have enquired about the orders passed by the Trial Court between 26.2.1999 to 24.6.1999. The petitioners being negligent in taking steps before the trial Court, the courts below rightly rejected the petition filed for setting aside the ex parte decree.

There is no dispute that the suit was initially posted to 26.2.1999 for hearing and both parties prayed for adjournment. Prayer for adjournment having been refused when the suit was taken up for hearing, Learned Counsel appearing for the defendants-petitioners submitted a memo of no instruction. There is nothing on record to show that the Learned Counsel appearing for the petitioners intimated the petitioners that on 26.2.1999 they had been set ex parte and the case was posted to 16.3.1999 for ex parte hearing. In absence of any intimation from the counsel the petitioners claim that they remained in dark about the development of the case. Shri Routray, Learned Counsel appearing for the petitioners relied upon a decision of the Apex court in the case of Malkiat Singh and Anr. v. Joginder Singh and Ors., reported in 1998 (I) OLR (SC) 404. In the said case the suit had been decreed ex parte as lawyer for the defendants at a particular stage pleaded no instruction. No notice was issued by the Court. Defendants in the said case after the lawyer reported no instruction came to know about ex parte decree and filed an application under Order 9, Rule 13, CPC. Under such circumstances the Apex Court was of the view that the party cannot be said to be careless or to be at fault. Paragraphs 6 and 7 of the judgment which are relevant are quoted below:

"There is no denying the fact that the appellants had engaged a counsel to defend them in the civil suit. The counsel for the appellants pleaded ''no instruction'' but the court did not issue any notice to the appellants, who were admittedly not present on the date when their counsel reported no instructions in the Court. It is nobody''s case that the counsel informed them after he had reported no instructions to the Court. The appellants only came to know about the order passed dated 18.11.1991 and the ex parte decree dated 8.2.1992 when they approached their counsel on 6.6.1992, it was within four days thereafter that the appellants filed an application under Order 9, Rule 13, CPC for setting aside the Order dated 18.11.1991 and the decree dated 8.2.1992.

The appellants in their application clearly pleaded that they were neither careless nor negligent and as soon as they learnt about the ex parte decree dated 8.2.1992 and the Order dated 18.11.1991, they filed the application to set aside the order and ex parte decree. A perusal of the record also reveals that the appellants were neither careless nor negligent in defending the suit. They had engaged a counsel and were following the proceedings. In this fact situation, the Trial Court, which had admittedly not issued any notice to the appellants after their counsel had reported no instructions, should have, in the interest of justice, allowed that application and proceeded in the case from the stage when the counsel reported no instructions. The appellants cannot, in the facts and circumstances of the case, be said to be at fault and the should not suffer. In taking this view, we are fortified by a judgment of this Court in Tahil Ram Issardas Sadarangani v. Ramachand Issardas Sadarangani 1993 (3) SCC 256 wherein the Bench opined : (SCC p. 257, para 4) :

''4. It is not disputed in the present case that on 15.3.1974 when Mr. Adhia, Advocate withdrew from the case, the petitioners were not present in Court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adhia withdrew from the case, the interest of justice required, that afresh notice for actual date of hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer''."

There being no material on record to show that the advocate for the defendants-petitioners had intimated about the orders passed on 26.2.1999, in my view, the ratio laid down by the Apex Court in the aforesaid case has full application to the facts of this case.

Learned Counsel for the opposite parties relied upon a decision of this Court in the case of Rai Singh and Subash Kumar Ghosh and Another Vs. United Commercial Bank and Others, . This Court in the aforesaid case observed that sufficient cause for absence should be shown for the date on which the suit was called for hearing and reasons shown for absence on previous dates are of no avail. After going through the judgment, I am of the view that this case has no application to the facts of the present case.

In view of the discussions made above, the Writ Application is allowed, impugned orders passed by the both the Courts below are set aside, the ex parte decree passed in T. S. No. 47 of 1991 pending before the Learned Civil Judge (Senior Division), Berhampur is set aside and it is directed that the suit being of the year 1991 same be disposed of within a period of four months from the date of communication of this order. It is further directed that the petitioners shall pay cost of Rs. 3000/- to the plaintiffs-opposite parties within a period of six weeks from today and the said cost shall be deposited before the Trial Court and the plaintiffs shall be permitted to withdraw the same. If the cost is not paid in time this order shall stand recalled automatically.