Pankaj Agrawal and Others vs Shakuntala Devi and Others

P.K. Jaiswal, J.

This appeal is filed by the appellant/applicants for setting aside the order dated 29.10.2004 passed by the Second Additional District Judge, Gwalior in M.J.C. No. 30/2000, whereby the trial Court has rejected the application of the appellants under Order 9, Rule 13 of C.P.C.

The brief facts of the case are that respondent no. 3 has filed a suit for specific performance of contract against the appellants and respondent no. 2. On 15.7.1986, on the date of filing of this suit the appellants were minor. The trial Court proceeded ex parte against them and judgment and decree was passed on 4.8.1999 against them. The appellants on receiving the notice of execution to appear on 17.7.2000., for the first time came to know about ex parte judgment and decree. On 18.7.2000 they requisitioned record of the trial Court and collected the required documents and thereafter on 24.7.2000 filed an application under Order 9 Rule 13 of C.P.C, for setting aside the ex parte judgment and decree. It is a averred in the application that their counsel appeared from time to time during the course of proceedings before the trial Court, but on 30th Apirl, 1997 no one appeared on their behalf. On that day no order was passed by the trial Court for proceeding ex parte against the appellants. Thereafter on 16.5.1997,9.8.997 and 10.8.1997 appellants counsel appeared before the trial Court and thereafter he failed to appear before the trial Court and trial Court without proceeding ex parte against them passed the ex parte judgment and decree on 4.8.1999. It is also averred in the application that when the suit was filed they were minor and after attaining the age of majority, no individual notice was served and without following the provisions of Order 32 Rule 3 of C.P.C and without issuing any notice to the appellants, trial Court proceeded ex parte against them. No intimation was given by their counsel that he was not attending before the trial Court and as such, they had no knowledge about the absence of their counsel or that no one was representing them.

It is further averred that the Court also committed error in not issuing any notice to the appellants before passing ex parte judgment and decree. The appellant further submitted that cause shown in the application is sufficient to set aside the ex parte judgment and decree and the decree was passed without their knowledge. They also moved an application u/s 5 of the Limitation Act for condonation of delay in not filing the application within time. In the application they averred that no sooner they came to know about ex parte judgment and decree they immediately after collecting necessary documents filed the application for setting aside the ex parte decree and thus there was not delay on. their part in not prosecuting the case diligently,

Respondent no. 3/Plainfiff filed his reply to the application and submitted that the earlier the appellants were represented through their counsel Gopal Saran Goyal, Advocate who filed vakalatnama on 25.9.1986, and thereafter on 12.11.1986 Shri Arun Mishra, Advocate, Shri R.S. Sikarwar and Shri B.K. Yadav, Advocates appeared and thereafter on 22.9.1988, appellant no. 1 was represented by Shri R.A. Roman and Shri C.R. Roman, Advocates and appellant no. 2 was represented by Ku. Vandana Kekre and Smt. Kusum Shinde, Advocates and thereafter on 25.2.1991 a joint written statement was filed by the appellants and respondent no.l - Appellants were represented by Shri Roman, Advocate and he appeared before the trial Court till 3.4.1997. The appellants after attaining the majority were represented through Shri R.A. Roman, Advocate but from 30.4.1997 appellants and their counsel remained absent before the trial Court, and when ex parte judgment and decree was passed on 4.8.1999 then they filed this application with malafide intention to delay the proceedings.

Evidences of the parties were recorded before the trial Count, The trial Court after appreciating the oral and documentary evidence on record came to the conclusion that no cause much less a sufficient cause was made out by the appellants and they knew about the proceedings of the suit and the reasons assigned in the application were not correct. Thus no sufficient cause was shown by them. The trial Court with the above finding, rejected the application for setting aside ex parte judgment and decree dated 4.8.1999.

Learned counsel for the appellants submitted that the trial Court has committed error in not considering that after attaining the age of majority fresh notice should have to be issued to the appellants. He also submitted that the trial Court failed to consider that the disputed property belonged to Hindu undivided family, and therefore, respondent no. 2 had no right to enter into an agreement to sell the suit property. He further submitted that the learned trial Court has erred in holding that there was no sufficient cause for setting aside ex parte decree, whereas the evidence on record made out sufficient cause for condoning the delay. They also assigned reasons for their non appearance. It is further submitted by the learned counsel for the appellants that the trial Court never proceeded ex parte against them and on the above ground the trial Court committed error in rejecting the application and prayed for allowing the appeal and setting aside the ex parte decree and order passed by the trial Court. On the other hand learned counsel for the respondent no. 3 supported the order of the trial Court and submitted that the trial court considered each and every aspect of the matter and after considering the entire evidence on record found that no ground was made out by the appellants and trial Court rightly rejected the application as the same was not filed in time nor any cogent reason was assigned for not filing the application in time. The learned counsel for respondent no. 3 supported the order passed by the trial Court and contended that order passed by the trial Court was just and proper and appellant had full knowledge about the pendency of Civil suit and cause shown by him was not sufficient to condone the delay and no cause for setting aside ex parts judgment and decree was made out by the appellant and finding recorded by the trial Court is based on evidence on record and no sufficient cause was shown by the appellant for their non- appearance and order of the trial Court is just and proper and does not warrant any interference and prayed for dismissal of appeal.

Heard the learned counsel for the parties and perused the record of the case.

Under Order 9 Rule 13 C.P.C. an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The Hon''ble Supreme Court in the Case of G.P. Srivastava Vs. Shri R.K. Raizada and Others, has observed that the words" was prevented by any sufficient cause from appearing". Must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring part. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearnce of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the detendant approaches the Court immediately and within the statutory time specified the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis, decided on merits, This is which the Hon''ble Apex Court had observed in the case of G.P. Shrivastava (supra).

Learned counsel for the appellant further placed reliance on a decision in the case of Smt. Benibai Vs. Smt. Champabai, reported in 1996 (1) MPJR 70 = AIR 1996 MP 245 wherein this Court has taken the view that the counsel pleadings no instructions and the Court is also not taking necessary steps to ensure that counsel had sufficient reason not to appear for party who engaged him or to plead no instructions ex parts decree is liable to be set aside on this ground alone.

Learned counsel for the appellant further placed reliance on a decision in the case of Malkiat Singh and Another Vs. Joginder Singh and Others, , wherein the Hon''ble Supreme Court has dealt with a case in which the counsel for the party pleaded no instructions and has observed as under:

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 instructions" 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.

In this factual situation, the trial Court, which had admittedly had 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 facts and circumstances of the case, be said to be at fault and they should not suffer.

Learned counsel for the appellant placed reliance on the decision of the Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, in which the Hon''ble Apex Court has observed that the legislature has conferred the power to condone delay be enacting section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose for the existence of the institution of Courts and Courts should adopt liberal approach in condoning the delay. Further reliance has been placed by the learned counsel for the appellant on the decision of the Apex Court in the case of M.K. Prasad Vs. P. Arumogam, , Wherein the Hon''ble Supreme Court in para 10 has observed as under: "In the instant case, the appellant tried to explain the delay in filling the application for setting aside the ex parte decree as is evident for his application filed u/s 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the court should have kept in mind the judgment impugned, the extend of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case, we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well".

Learned counsel for the appellant lastly submitted that the suit was filed against the appellant no.1 and 2 who were impleaded as a minor through their father as guardian along with their father and mother and nonappearance of the father an ex parte decree is passed against them without appointing a Court as guardian, the decree as against the minor is a nullity and is liable to be set aside for violation of the mandatory provisions of Order 32 Rule 11 (2) of C.P.C. With the above preposition he placed reliance on the decision of Manoranjan Samanta Kumar Vs. Brundabati Veergam, , and the decision of the Allahabad High Court in the case of Mt. Chambi and another Vs. Tara Chand and others, reported in 1924 Allahabad 832.

In the instant case the respondent no. 3 filed a suit for specific performance in the year of 1986 and at that time appellants were shown as minor and they were represented through their father as guardian. During pendency of the case in the year of 1998 on 22.9.1998 the appellants had filed their separate vakalatnama and represented through their counsel. In the year of 1991 on 25.2.1991 they filed joint written statements and were represented through their counsel up to 3.4.1997. On 30th April 1997, learned counsel for the appellants failed to appear and as such from 30th April, 1997 onwards they were not represented by their counsel. The appellants were never intimated by their counsel that he was not appearing in the matter nor they received any notice from the Court for their appearance.

In my opinion, it is always the duty of a counsel to inform the party that for a particular reason he shall not be appearing in the case. The confidence deposed by the parties in the counsel is most important. A person who is not present in Court presupposes that because of engagement of a counsel his interest would be properly looked after, In the instant case it does not appear from the proceedings that the learned Judge had taken all necessary steps to ensure that the counsel had sufficient reason not to appear for the party who engaged him nor any notice was issued to the appellants. The trial court proceeded in the mater and ex parte judgment and decree was passed against the appellant on 4.8.1999.

According to Order 9 Rule 13 a party is required to satisfy the Court that there was a sufficient cause which prevented the party from making appearance in the Court on the date when the case was called on for hearing. The words "on the date when the case was called on for hearing" are the key words. A party is not required to show that he was always sincerely and faithfully appearing in the case. There are many proceedings on which the presence of the parties are not needed. It is only on few dates of hearing that too such date when he presence of the parties in needed. In the instant case if on 30.4.1997 the appellants were absent then they were required to satisfy the Court regarding the sufficiency of the cause only for the absence on 30.4.1997. The application for setting aside judgment and decree dated 24.7.2000 speaks that the appellants had no notice nor they had received information from their counsel. The application further speaks that on 28.6.2000 when they received notice in respect of execution proceedings they appeared before the executing Court on 17.7.2004 then only they came to know that they were proceeded ex parte and ex parte judgment and decree was passed against them. In the instant case the appellant categorical statement that they were not informed by the counsel nor they had knowledge about the dates and they were living at a long distance from Gwalior, obviously these facts should have been considered by the learned trial Court. The respondent no. 3 merely contends that it the counsel for the appellants pleaded no instructions then the appellants have to thank themselves. It cannot be gainsaid that after engaging a counsel, a party is supposed to sit in the Court on each date. The party is entitled to rely upon the counsel and if the counsel fails in his duty either to inform the party or to seek proper instructions before their non- appearance in the Court then the party cannot be made to suffer. In the instant case on that short ground alone the impugned order is liable to be set aside.

The appellants for the first time on 28.6.2000 came to know about the ex parte judgment and decree date 4.8.1999, they immediately requisitioned the record of the case and thereafter after getting all details from the record filed an application for setting aside ex parte judgment and decree. It is also not disputed by the respondent no.3 that from 30th April, 1997 counsel for appellants failed to appear before the Court and thereafter no notice were issued by the Court. It is also not disputed that before passing the ex parte decree, trial Court did not proceeded ex parte against the appellant and from order-sheets of the trial Court it appears that no order was passed by the trial Court by which appellants were proceeded ex parte.

From the above facts and circumstances of the case and the law laid down by the Hon''ble Apex Court, in my opinion, the Court below was wrong in holding that the appellants could not make a sufficient cause for setting aside the ex parte judgment and decree and in holding that no case for condonation of delay was made out by the appellants for condoning the delay in not filing the application within 30 days from the date of the ex parte judgment and decree dated 4.8.1999. The appeal deserves to be allowed. The impugned order dated 29.10.2004 passed in M.J.C. No. 30/2000 is set aside and consequently the ex parte judgment and decree dated 4.8.1999 passed in Civil Suit No. 39-A 86 (Santosh Vs. Ramesh Chandra) so far as it is against the appellants are set aside subject to payment of cost of Rs. 5000/- (Rupees Five Thousand) within a period of three months from the date of order. The trial Court is directed to restore the said Civil Suit as its original number and parties shall remain present before the trial Court on 6.12.2005. The Registry is directed to remit the records along with a copy of this order to the trial Court immediately so as to reach that Court before the date so fixed.

The appeal succeeds and is allowed. There shall be no order as to costs.