Parmanand and Others vs Kamla and Others

Arun Bhansali, J.—This writ petition is directed against order dated 15.02.2014 passed by the trial court, whereby, the application filed by the petitioners under Order IX, Rule 7 CPC has been rejected.

The respondent Nos. 1 to 3 filed a suit for declaration and permanent injunction against Champa Lal, who filed a written statement; however, the said Champa Lal died during the pendency of the suit and an application under Order XXII, Rule 4 CPC was filed by respondent-plaintiff Nos. 1 to 3; the legal representatives of Champa Lal i.e. Gopi, Smt. Chanda and Mangli were taken on record; however, it appears that Gopi also died and, therefore, another application under Order XXII, Rule 4 CPC was filed for bringing on record the legal representatives of Gopi; the notices of the application were issued to the proposed legal representatives; by order dated 28.05.2013 the trial court noticed that the notices sent by registered post acknowledgment due have been received back with the endorsement "refused" and took the service as complete and directed ex parte proceedings against the legal representatives of deceased Champa Lal and directed recording of ex parte evidence of the plaintiffs.

The petitioner No. 1 filed an application under Order IX, Rule 7 CPC on 09.09.2013 with the averments that the suit had been rejected on 09.08.2011, restoration whereof was not informed to the applicant and when inquiry was made, it was informed that on 28.05.2013, based on the notices issued on 12.10.2012, ex parte proceedings have been initiated; the applicant was not available on 11.10.2012 and for the subsequent date he did not receive any summon and, therefore, the order proceeding ex parte may be set aside.

The application was opposed by the plaintiffs.

The trial court by its order dated 09.12.2013 came to the conclusion that the petitioner No. 1 despite being aware of the date i.e. 11.10.2012 has approached the Court by way of application dated 09.09.2013 after a period of one year and has not indicated any reasonable ground for approaching the Court after inordinate delay, rejected the application.

Whereafter, it appears that another application was filed by Parmanand being legal representative of Gopi under Order IX, Rule 7 and 11 CPC and an application was filed by Smt. Chanda, daughter of Champa Lal under Order IX, Rule 7 CPC seeking setting aside of ex parte order against them.

The applications were opposed by the plaintiffs and the trial court by its order dated 15.02.2014 came to the conclusion that no case was made out for review of the order dated 09.12.2013 and rejected the application filed by Parmanand, however, the application filed by Smt. Chand, legal representative of deceased Champa Lal, was allowed and it was found that she was not properly served and order dated 28.05.2013 directing ex parte proceedings against her were set aside and she was granted permission to participate in the proceedings and matter was fixed for filing of written statement on her behalf.

It is submitted by learned counsel for the petitioners that the trial court was not justified in dismissing the applications filed by the petitioners, who were legal representatives of Gopi, who in turn was legal representative of original defendant Champa Lal; neither Gopi their father was served after death of Champa Lal with notices of application under Order XXII, Rule 4 CPC nor they were served with any of the notices of application under Order XXII, Rule 4 CPC; it was further submitted that once the application filed by Smt. Chanda under Order IX, Rule 7 CPC was allowed and the suit proceedings were relegated back to the stage of filing of written statement by her, the petitioners who were not seeking any relief for relegating back of the stage of the suit, at which, the same was standing today under provisions of Order IX, Rule 7 CPC, the trial court was not justified in rejecting their applications and, therefore, the order impugned cannot be sustained.

Reliance was placed on Arjun Singh Vs. Mohindra Kumar and Others,

Vehemently opposing the submissions made by learned counsel for the petitioners, learned counsel for the respondents submitted that this writ petition itself is not maintainable, inasmuch as, both the applications, which stood rejected by orders dated 09.12.2013 and 15.02.2014 were filed by Parmanand only and this writ petition has been filed by six petitioners, who had not even moved to the trial court for setting aside of ex parte proceedings under Order IX, Rule 7 CPC; it is further submitted that the conduct of the petitioners is such that they are not entitled to any indulgence from this Court, inasmuch as, the suit is pending since the year 1996 and only on account of hide and seek being played by the petitioners on applications filed by the plaintiffs under Order XXII, Rule 4 CPC the suit is still pending despite passage of over nineteen years; it is submitted that once the application filed by the petitioner No. 1 has been rejected on 09.12.2013, the subsequent application filed is ex facie barred by principles of res judicata and there is no prayer even to seek a review of the order dated 09.12.2013 and, therefore, also the petition filed by the petitioners deserves to be dismissed.

I have considered the submissions made by learned counsel for the parties and have perused the material placed on record.

There is no dispute on the basic facts that the suit was filed in the year 1996 by Smt. Nand Kanwar against Champa Lal; the said Champa Lal died during the pendency of the suit and his legal representatives Gopi, Smt. Chanda and Mangli were brought on record, whereafter, Gopi also died and proceedings were initiated for bringing on record his legal representatives, who are petitioner Nos. 1 to 5; it appears that notices for service on the legal representatives of Champa Lal and Gopi were being sent from time to time as they were residents of Jalgaon, Maharashtra and were not getting served and, therefore, by way of substituted service, notices were sent by registered post acknowledgment due also; on 28.05.2013 the trial court on noticing that the notices sent through registered post acknowledgment due were received back with the endorsement "refused", ordered for proceeding with the suit ex parte against the legal representatives of Champa Lal/Gopi; whereafter, the application filed by Parmanand was rejected by order dated 09.12.2013.

However, another application filed by Smt. Chanda daughter of Champa Lal under Order IX, Rule 7 CPC was accepted by order dated 15.02.2014 (Annexure-8) and the trial court set aside the order dated 28.05.2013 qua said Smt. Chanda and permitted her to participate in the suit proceedings and also provided her opportunity to file written statement; the result of the order dated 15.02.2014 is that now the suit is at the stage of filing of written statement by the legal representative of deceased Champa Lal and though partially i.e. qua Smt. Chanda only, the suit has been relegated back to pre 28.05.2013 stage.

Hon''ble Supreme Court in the case of Arjun Singh (supra) held and observed as under:-

"19.........................We shall confine our attention to the topic on hand namely applications by defendants to set aside ex parte orders passed against them and reopen the proceedings which had been conducted in their absence. Order IX, R. 1 requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record is apprised of the fact that the summons has not been duly served on the defendant in order to acquaint him with the proceedings before the Court, Rule 2 contains a proviso applicable to cases where notwithstanding the absence of service of summons, the defendant appears. Rule 3 deals with a case where the plaintiff along with the defendant is absent when the suit is called on and empowers the Court to dismiss the suit. Rule 5 deals with a case where the defendant is not served properly and there is default on the part of the plaintiff having this done. Having thus exhausted the cases where the defendant is not properly served R. 6(1)(a) enables the Court to proceed ex parte where the defendant is absent even after due service. Rule 6 contemplates two cases: (1) the day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and (2) where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case O. IX R. 13 would be come in. The defendant can, besides filing an appeal or an application for review have recourse to an application under O. IX R. 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of O. IX R. 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled - "set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit for whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis- is the non-appearance of the defendant at the hearing of a suit has been provided for and O. IX R. 7 and O. IX R. 13 between them exhaust the whole gamut of situations that might arise during the course of the trial............" 15. Hon''ble Supreme Court held that even if an applicant fails to show a good cause in an application under Order IX, Rule 7 CPC, he is not penalized in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Therefore, in the present circumstances, even when the application filed by the petitioner No. 1 - Parmanand under Order IX, Rule 7 CPC was rejected by the trial court on 09.12.2013, with the acceptance of application by Smt. Chanda by its order dated 15.02.2014 and the proceedings of the suit having been relegated back to pre 28.05.2013 stage, the petitioners cannot be prevented from participating in the proceedings of the suit at that stage itself despite dismissal of the application of petitioner No. 1 - Parmanand and, even if, no application has been filed by petitioner Nos. 2 to 6 and, therefore, in these circumstances, the order passed by the trial court dated 15.02.2014 though justified in dismissing the second application filed by petitioner No. 1 - Parmanand, however, it is held that the petitioners cannot be prevented from participating in the proceedings of the suit as they existed prior to passing of order dated 28.05.2013 by the trial court in view of the grant of application filed by Smt. Chanda by order dated 15.02.2014.

So far as the objection raised by learned counsel for the respondents about non-maintainability of the present writ petition by petitioner Nos. 2 to 6 is concerned, it is no doubt true that the application was filed by Parmanand only, however, in view of what has been determined hereinbefore, the petitioner Nos. 2 to 6 cannot be deprived of the benefit of said order only because they chose not to move before the trial court and have approached this Court directly along with petitioner No. 1 whose applications stood rejected by the trial court.

However, in view of entire manner of conduct of proceedings, the grievance raised by learned counsel for the respondents appears to be justified that despite passage of over nineteen years the suit is still pending at the stage of filing of the written statement and, therefore, it would be required of the petitioners to pay a cost of Rs. 3,500/- to the respondents.

In view of the above discussion, the writ petition filed by the petitioners is disposed of with the directions to the trial court to permit petitioner Nos. 1 to 6 to participate in the proceedings of the suit from before the stage as it existed on 28.05.2013 on payment of cost of Rs. 3,500/- to the plaintiffs/counsel for the plaintiffs. However, looking to the fact that the suit is pending since the year 1996, the trial court is directed to proceed with the suit as expeditiously as possible.