Om Parkash vs Manoj Kumar and Others

Paramjeet Singh, J.—Instant revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 12.3.2010 passed by the learned Additional Civil Judge (Sr. Divn.), Gurgaon whereby application moved by respondent no. 1-defendant no. 4 under Order 9 Rule 13 of the CPC (in short "the CPC") for setting aside the order dated 6.1.2000 and ex parte judgment and decree dated 16.9.2000, has been allowed. Briefly stated, the facts of the present case are that respondent no. 1-defendant no. 4 earlier appeared in pursuance to the notice issued in civil suit and engaged counsel to represent him in trial Court. Respondent no. 1 was represented by his counsel who told him that he need not appear on each and every date and that respondent no. 1 would be informed as and when required for appearing in person. During the pendency of suit, respondent no. 1 was proceeded against ex-parte on 6.1.2000 along with other defendants and thereafter exparte judgment and decree were passed on 16.09.2000. For setting aside the ex parte order dated 6.1.2000 and ex parte judgment and decree dated 16.09.2000, respondent no. 1-defendant no. 4 moved an application before the trial Court which was vehemently opposed by the petitioner. The trial Court framed the following issues vide order dated 31.7.2006:

Whether the absence of the applicant-defendant no. 4 on dated 6.1.2000 was unintentional and due to the negligence of his counsel? OPP

Whether the applicant-defendant no. 4 is entitled to get the ex parte judgment and decree dated 16.09.2000 be set aside? OPP

Relief.

After affording sufficient opportunities by the parties to lead their respective evidence, the trial Court set aside the order dated 6.1.2000 and ex parte judgment and decree dated 16.09.2000. Hence, this revision.

I have heard learned counsel for the parties and perused the record.

Learned senior counsel for the petitioner has vehemently contended that respondent no. 1-defendant no. 4 engaged Sh. D.R. Lakhani, Advocate to pursue on his behalf. The said counsel represented respondent no. 1-defendant no. 4 on some dates, however, could not appear on 6.1.2000 and ultimately, respondent no. 1-defendant no. 4 was proceeded against ex parte. It has been further contended that the trial Court had passed the ex parte order dated 6.1.2000 correctly, as respondent no. 1-defendant no. 4 had not been appearing before the Court in person too and respondent no. 1 was not taking proper care of the proceedings. Hence, the ex parte order dated 6.1.2000 and ex parte judgment and decree dated 16.09.2000 have been wrongly set aside by the trial Court.

Per contra, learned senior counsel for respondent no. 1 and learned counsel for respondents no. 4 to 7 have opposed the contentions of learned senior counsel for the petitioner and contended that the trial Court after framing the issues afforded sufficient opportunities to lead evidence to the respective parties and after considering the evidence, the trial Court came to a categorical finding that respondent no. 1-defendant no. 4 should not suffer for the fault of his counsel and there is sufficient cause for setting aside the ex parte order dated 6.1.2000 and ex parte judgment and decree dated 16.09.2000. It has been further contended that under Article 227 of the Constitution of India, this Court cannot act as a Court of appeal, once the facts have been appreciated, this Court cannot interfere in the order unless it is patently illegal and perverse.

I have considered the rival contentions of learned counsel for the parties.

Perusal of file reveals that the petitioner-plaintiff initially filed suit for permanent injunction against two persons namely Hem Chand and Anand Parkash, however, subsequently names of six more persons were added in the array of defendants. Respondent no. 1-defendant no. 4 for the first time put his appearance in person in civil suit on 6.1.1997 and later on, he was represented by Sh. D.R. Lakhani, Advocate and he continued to represent him till 20.12.1999, however, on 6.1.2000, none appeared on behalf of respondent no. 1 and on that day, he along with other defendants was ordered to be proceeded against ex parte.

It would be appropriate to refer to the provisions laid down under Order 9 Rule 13 of the CPC which read as under:

13 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;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also;

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 plaintiff''s claim.

Explanation: Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree.

The reading of above provisions makes it clear that ex parte judgment and decree can be set aside, if the defendant satisfies the Court that summons was not duly served upon him and secondly that he was prevented by any sufficient cause from appearing when the suit was called for hearing. Here in the present case, so far as the first issue with regard to the service of summons is concerned, it is admitted case of the parties that respondent no. 1-defendant no. 4 had appeared and was continued to be represented till 20.12.1999. The question arises with regard to the second condition whether respondent no. 1-defendant no. 4 was prevented by any sufficient cause from appearing when the suit was called for hearing. The trial Court has specifically framed the issue with regard to the setting aside of ex parte order and ex parte judgment and decree. After appreciating the evidence, a categorical finding has been recorded that the petitioner was prevented by sufficient cause i.e. non-appearance of counsel representing him before the trial Court. The trial Court has come to the conclusion that for the fault of counsel, the client should not suffer and has made to the reference to the case law titled as The Secretary, Department of Horticulture, The Secretary, Department of Horticulture, Chandigarh and Another Vs. Raghu Raj, wherein the Hon''ble Supreme Court of India has held as under:

The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court''s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appear nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.

It has been further observed by the Hon''ble Supreme Court of India as under:

What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law.

With the assistance of the learned counsel for the parties, I have perused the records. Before I proceed to deal with the contentions of learned counsel for the parties, I would like to discuss the scope of Article 227 of the Constitution of India. The Article 227 of the Constitution of India provides a ground for exercise of power of superintendence. The power of High Court of superintendence is a power to keep subordinate courts within the bounds of their authority and to see that they do what their duty requires and they do it in a legal manner. The principles in this regard have been summed up and stated by the Hon''ble Supreme Court in State through Special Cell, State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and Others, which reads as under:

(i) the jurisdiction under Article 227 cannot be limited or fettered by any Act of the Stage legislature;

(ii) the supervisory jurisdiction is wide and can be used to meet the ends of justice, also to interfere even with interlocutory order:

(iii) the power must be exercised sparingly only to move subordinate courts and Tribunals within the bounds of their authority to see that they obey the law. The power is not available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be exercised "as the cloak of an appeal in disguise.

The exercise of jurisdiction under Article 227 of the Constitution of India cannot be tied down in a straitjacket formula or rigid rules. If High Court intervenes in pending proceedings, there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities, adjusted in appeal or revision preferred at the conclusion of the proceedings. It can be said that the powers is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge. Here in this case, the trial Court after appreciating the evidence on record has come to the conclusion that there is sufficient cause for setting aside the ex parte order dated 6.1.2000 and ex parte judgment and decree dated 16.09.2000. The said order dated 6.1.2000 has been passed due to non-appearance of counsel for respondent no. 1-defendant no. 4 who assured him that he will be informed as and when his presence would be required.

While setting aside the order dated 6.1.2000 and ex parte judgment and decree dated 16.9.2000, the trial Court has recorded the following finding:

In view of my above discussion as well as law laid down by the Hon''ble Supreme Court of India in this regard, it can be well concluded that the absence of the applicant-defendant no. 4 in the main civil suit on dated 6.1.2000 was an unintentional one and thus can be said to be prevented by a sufficient cause from appearing in the case when the same was called on for hearing and as a consequence thereof, the impugned order dated 6.1.2000 as also the judgment and decree dated 16.9.2000 cannot sustain and the same are thus accordingly set aside. Hence, both these issues stand decided in favour of the applicant-defendant no. 4.

While deciding whether there is a sufficient cause or not for non-appearance, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. In this regard, reference can be made to the following case laws:

State of Bihar and Others Vs. Kameshwar Prasad Singh and Another,

Madanlal Vs. Shyamlal,

Davinder Pal Sehgal and Another Vs. Partap Steel Rolling Mills Pvt. Ltd. and Others,

Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others,

Kaushalya Devi vs. Prem Chand and another, (2005) 10 SCC 127.

Srei International Finance Ltd. vs. Fair Growth Financial Services Ltd. and another, (2005) 13 SCC 95.

Reena Sadh Vs. Anjana Enterprises,

From the pleadings and evidence led before the trial Court, it is clear that respondent no. 1-defendant no. 4 honestly and sincerely intended to remain present, when the suit was called for hearing, but due to the assurance given by his counsel that he would be called as and when required, he could not appear in the Court. It appears that respondent no. 1-defendant no. 4 did not have any knowledge to appear on the dates before the Court. Herein, due to the assurance given by his counsel, respondent no. 1-defendant no. 4 was prevented from attending every date and for this reason, he can not be blamed for his absence. Respondent no. 1-defendant no. 4 has appeared before the Court with a reasonable defence in the shape of sufficient cause. The sufficient cause is a question of fact and the Court has to exercise its discretion in the very and special circumstances of the case. There cannot be a straitjacket formula of universal application. Here in the present case, the trial Court after appreciating the evidence has come to the conclusion that there is sufficient cause which prevented respondent no. 1-defendant no. 4 from appearing before the Court and has rightly set aside the ex parte order dated 6.1.2000 and ex parte judgment and decree dated 16.9.2000.

Since the trial Court has exercised its discretion in the peculiar circumstances of the case before it while setting aside the ex parte order dated 6.1.2000 and ex parte judgment and decree dated 16.9.2000, I do not find any illegality or perversity in the impugned order dated 12.3.2010.

Dismissed. No order as to costs.