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Judgment
Honourable MR. Justice J.B. Pardiwala
This petition under Article 227 of the Constitution of India has been preferred by the petitioners - original defendants (judgment debtors) challenging the judgment and order passed by the Additional District Judge and Presiding Officer, 2nd Fast Track Court, Mehsana in Misc. Civil AppealNo.102/2006, whereby the Presiding Officer dismissed the Appeal preferred under Order 43 Rule 1(d) CPC confirming the orders passed by the Civil Judge (J.D.), Chanasma, below Exh.1 and Exh.4 preferred by the original defendants under Order 9 Rule 13 of CPC to set-aside an ex-partedecree passed by the Civil Judge in Regular Civil SuitNo.29/1986.
Facts relevant for the purpose of deciding this petition can be summarised as under :-
Petitioners herein are the original defendant nos.1, 3and 4. The respondents herein are the original plaintiffs. Respondents - original plaintiffs instituted Regular Civil Suit No.29/1986 in the Court of Civil Judge (J.D.), Chanasma for declaration and injunction.
Record reveals that summons was issued and served upon the petitioners - original defendants and they appeared and filed their written statement. After the issues were framed, the original plaintiff entered the box and led his examination-in-chief. This was way back in the year 1989.
Record reveals that from 1989 onwards the petitioners - original defendants kept on praying for time to cross-examine the original plaintiffs and the Civil Court kept on granting time until 1992. On 9th October 1992since the defendants or their lawyer failed to appear before the Civil Judge and failed to lead evidence, the Civil Judge passed an order under Order 9 Rule 6 of CPC that the suit be heard ex-parte. Thereafter, the suit proceeded ex-parte in the absence of the defendants. Ultimately, Civil Judge vide judgment and order, passed final decree dated 22nd October 1992, whereby the suitof the original plaintiffs came to be allowed. After about a period of five months thereafter an application came to be preferred by the petitioners - original defendants Exh.1 under Order 9 Rule 13 to set-aside thee-parte order.
Record also reveals that one more application Exh.4 was preferred praying for condonation of delay in preferring an application under Order 9 Rule 13. Both these applications were taken up for hearing by learned Civil Judge and, ultimately vide order dated 20th June 2002, rejected the applications on the ground that the original defendants have failed to make out any case toset-aside the ex-parte decree. As a matter offact, two orders have been passed by learned Civil Judge; one below Exh.1 and another below Exh.4.Exh.4 was for condonation of delay and learned Civil Judge did not even deem fit to condone the delay.
Without going into any controversy in this regard for the present I may examine as to whether any error much less an error of law has been committed by the appellate court in dismissing the Misc. Civil Appeal No.102/2006.
I have heard learned advocate Mr.Tejas Satta appearing for the petitioners - original defendants (judgment debtors)and learned advocate Mr. M.B. Parikh appearing for the respondents - original plaintiffs (decree holders).
Learned advocate Mr. Satta vehemently submitted that both the Courts below have erred in rejecting the application under Order 9 Rule 13 CPC for setting aside the ex-parteorder. Mr. Satta vociferously submitted that for the negligence of the advocate who was appearing for his client, his client should not suffer. He would submit that all throughout their lawyer kept on informing that the presence of the defendants is not necessary in the Court. It is in this background that ultimately the ex-partedecree came to be passed.
Per contra, learned advocate Mr. Parikh submitted that thisis a case of gross negligence on the part of the petitioners - original defendants and they have failed to satisfy the Courts below that they were prevented by any sufficient cause from appearing when the suit was called on for hearing. He would submit that there is no merit in this petition and this Court may not disturb the concurrent findings recorded by the Courts below in exercise of powers under Article 227 of the Constitution of India.
Mr. Satta, learned advocate for the petitioners - original defendants has relied upon some case-laws. He has relied upon the rulings of the Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy, and in the case of Rafiq and Another Vs. Munshilal and Another, He has also relied upon a judgment delivered by the Single Judge of this High Court in the case of Rajendra M. Mavani Vs. State of Gujarat and Another,
It is a settled position of law that while considering an application under Order 9 Rule 13 CPC praying for setting aside an ex-parte decree, no straight jacket formula is prescribed to come to a conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and circumstances in which the parties acts and behaves. In the present case, from the conduct, behaviour and attitude of the petitioners it canbe said that the petitioners have been callous and negligent in prosecuting the matter.
It deserves to be noted that the suit is of the year 1986.There is no dispute to the fact that summons were duly served upon the petitioners - original defendants and in response to the summons they appeared through their counsel. It is also not in dispute that written statement was filed in the year 1987 vide Exh.27. Issues were settled by the trial Court and in the year 1989 for the first time the plaintiff stepped into the witness box. His evidence in-chief was over and then when the time came for the defendants to cross-examine, it appears that they kept on praying for time.
It appears that from 1989 to 1992 they did not bother to appear before the Court or even there is nothing on record to show that they were vigilant of the court proceeding spending against them. As litigant, the defendants owe a duty to keep a close watch on the court proceedings. Alitigant cannot say that since he entrusted the matter to a lawyer he would thereafter go in slumber. A litigant also owes a duty to keep a constant watch on the proceedings. It is not possible for me in the present case to accept a bald assertion that the lawyer was negligent and the lawyer didn''t inform the petitioners - original defendants about the status and the progress of the suit proceedings. I am of the view that it is not fair on the part of a litigant every time to throw the entire blame on the shoulder of his lawyer. In a given case an advocate may also be negligent in informing about the dates of hearing to his client and in a given set of facts probably court may lean in favour of setting aside the ex-parte decree but it all depends on facts of each case.
There is one more reason why I am not inclined to disturb the concurrent findings of the two courts below. I am informed by learned advocate Mr. Parikh appearing for the decree holders that the decree has already been satisfied. At this stage, after couple of years, if discretion is exercised in favour of the petitioners, it will result inimbalancing the equities which have been created in favour of the decree holders. The suit, as I have said earlier, is of the year 1986, decree is of the year 1992, the impugned orders are of the year 2002 and today we are in the year 2011. So far as the judgments relied upon by learned counsel for the petitioners are concerned, they are all in the peculiar facts of each case. It is not necessary, therefore, to discuss the judgments which have been relied upon by learned counsel for the petitioners to substantiate his contention that due to negligence on the part of an advocate the client should not suffer. At the cost of repetition I state that it all depends on the facts and circumstances of each case. In the present case, I am not convinced with the explanation tendered by the petitioners as regards their non-appearance before the Court in the suit proceedings.
In the above view of the matter, I do not find any error much less an error of law said to have been committed by the Courts below in refusing to grant any relief to the petitioners warranting any interference in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
Petition is dismissed. Rule is discharged. Civil Application stands disposed of.