Prem Kumar vs IVth A.D.J. and Others

Prakash Krishna, J.—This writ petition has been filed by the defendant of the suit No. 227 of 1989: Smt. Mundra Devi v. Prem Kumari for quashing of the order dated 24th of August, 1995 passed in the civil revision No. 98 of 1993: Smt. Mundra Devi v. Prem Kumari wherein the revisional court has allowed the said revision and rejected the application filed by the petitioner under Order 9 Rule 13 of C.P.C. The facts of the case may be noticed in brief. The suit No. 227 of 1989 was filed by Smt. Mundra Devi claiming herself to be the owner of the disputed land. She pleaded that she has purchased the disputed land through a sale deed dated 5th of May, 1989 and claimed relief for permanent injunction restraining the defendant petitioner not to interfere in her possession over the disputed land. Summons were issued fixing 16th of August, 1990 for filing the written statement. But no written statement was filed on that date. An application for adjournment was filed by the petitioner which was rejected and 18th of August, 1990 was the next date fixed. On that date, evidence of the plaintiff was recorded. The defendant did not appear on the pretext that there was lawyers'' strike.

In the meantime, on 24th of August, 1990 an application to recall the order dated 18th of August, 1990 was filed which was rejected on 1st of September, 1990. The suit was ultimately decreed by the judgement dated 7th of September, 1990. To set aside the said decree an application purporting under Order 9 Rule 13 C.P.C was filed on 10th of September, 1990 stating that the petitioner could not appear on the date fixed as he was confined to bed. The said cause was found sufficient by the trial court and the trial court by its order dated 22.10.1993 set aside the exparte judgment and order dated 7th of September, 1990, and restored the original suit No. 287 of 1989 to its original number subject to payment of cost of Rs. 150/-. The matter was carried in revision No. 98 of 1993 by Smt. Mundra Devi which came up for consideration before the court below. The court below was of the view that in the present case the suit should have been decreed on 18th of August, 1990 under Order 8 Rule 10 C.P.C and the court below was not justified in restoring the suit to its original number. The revisional court was of the view that the application under Order 9 Rule 13 C.P.C is not maintainable. It may be placed on record that the court below has not examined the question about sufficiency of the cause shown by the petitioner. The said order is under challenge in the present writ petition.

Heard Sri Swapnil Kumar, advocate, learned Counsel for the petitioner and Sri M.N. Singh, learned Counsel for the contesting respondent. The learned Counsel for the petitioner submits that on the facts of the present case, the application under Order 9 Rule 13 C.P.C was maintainable. Reliance was placed by him on a judgment of this Court in Sumat Chand Jain and Anr. v. Mahendra Pratap Singh 1995 ARC 122. Para 8 of the said judgment is reproduced below:

Merely because a decree follows a judgment under Order VIII, Rule 10 CPC for the failure of the defendant to file written-statement within the time permitted by the Court it cannot clothe the decree with some special status as submitted by the learned Counsel. The decree which is passed in the absence of the defendant and his Counsel remains an ex-parte decree even though it is passed under Order VIII, Rule 10 C.P.C. I am fortified in the view that I am taking with the decisions of the Madras High Court in the case of N. Jayaraman v. Glaxo Laboratories India Limited reported in AIR 1981 Mad. 258 Karnataka High Court in the case of Qurart Industries, Bangalore v. State Bank of Mysore reported in AIR 1985 Kant. 77 and a Division Bench decision of the Kerala High Court in the case of M. Manick Peter v. K. Surendra Nathan reported in AIR 1986 Ker. 161 . In the case of Manick Peter (supra), the Kerala High Court relied upon the decision of the Madras High Court and the Karnataka High Court referred to above and also the decision of the Supreme Court in the case of Prakash Chandra v. Janki Manchanda reported in Prakash Chander Manchanda and Another Vs. Janki Manchanda, and observed as follows:

On the failure of the defendants and their Counsel to appear in Court on the adjourned date of hearing of the suit its disposal under Order VIII, Rule 10 CPC is, therefore, to be treated as a disposal in accordance with Order XVII, Rule 2. An ex-parte decree passed under Order VIII, Rule 10 is not to be treated differently from any other decree ex-parte liable to be set aside under Order IX, Rule 13 CPC." Further reliance was placed on Irfana Begum v. Raj Kumar Agrawal 1999 (2) ARC 799 wherein it has been held as follows:

So far as third view is concerned, in our opinion, the view taken is based on sound principles of law and the cases contemplated under this view are as a matter of exception to the second view. If the order is passed under Order VIII, Rule 10 CPC and a decree is drawn up in absence of defendant or his Counsel there is no doubt that such a decree would be ex parte and an application under Order IX, Rule 13 CPC would be maintainable at the instance of defendant for setting aside the ex parte decree. In such a case he could satisfy the Court that he was prevented by any sufficient cause from appearing when the suit was called for hearing. The order passed in such case under Order VIII, Rule 10 CPC and decree drawn up though appear to be on merits and in default of filing written statement but nonetheless it was passed in absence of defendant and it could be termed ex parte. Another exception would be a case where the Court passed the order under Order VIII, Rule 10 CPC simply on the ground that the defendant did not file written statement and failed to examine the case of the plaintiff as to whether he was entitled for a decree or not. It shall also cover such cases where the Court below has not called upon the plaintiff to give evidence nor the plaintiff gave any evidence in support of his case. The Court remains under obligation to apply its mind to the facts stated in the plaint and to assess whether the decree could be passed or not. Even suit can be dismissed in absence of written statement, for which a sufficient scope has been left in Order VIII, Rule 10 CPC by using words "or make such order in relation to the suit as it thinks fit". Thus, under Order VIII, Rule 10 CPC it is not that the Court could only pronounce judgment against the defendant who failed to file written statement but even the suit could be dismissed. In such a situation the Court was under obligation to see that the suit is decreed only when the plaintiff is entitled for the same and he has proved his case.

From the aforesaid discussion, in our opinion, for setting aside the order under Order VIII, Rule 10 CPC an application under Order IX, Rule 13 CPC will not be maintainable except in following two circumstances:

(a) Where the order has been passed in absence of the defendant or his Counsel;

(b) Where the order has been passed merely for default in finding written statement and does not contain any reason showing how the plaintiff is entitled for a decree and has been passed without calling upon the plaintiff to adduce evidence to prove his case or the plaintiff has failed to produce any evidence to prove his case.

In reply, the learned Counsel for the respondent could submit only this much that the matter be restored to the revisional court for deciding the application on merits.

Taking into consideration the fact that since sufficient time has lapsed, no useful purpose is going to be served by restoring the matter back to the revisional court. Apart from the above, this Court is of the view that the revision before the court below was not maintainable. The trial court had exercised its discretion by setting aside the exparte decree and restoring the suit to its original number. Substantial justice was done by the trial court by allowing the defendant an opportunity to file written statement and to lead evidence in support of his case. The said order should not have been interfered with by a revisional court in exercise of its revisional jurisdiction u/s 115 of C.P.C. There was no error of jurisdiction in the order of the trial court.

Taking into consideration the entire facts and circumstances of the case, the revisional court was not justified in setting aside the order passed by the trial court. On the facts of the present case, it is held that the petitioner was prevented by sufficient cause for his non appearance in the suit.

In the result, the writ petition succeeds and is allowed subject to the payment of cost of Rs. 5,000/- by the petitioner to the contesting respondent in addition to the cost as was awarded by the trial court. The said cost shall be deposited before the trial court on or before the next date fixed. The parties are directed to appear before the trial court on 12th of October, 2009 along with the certified copy of this order. It is made clear that if the petitioner fails to deposit the cost as stipulated above within the stipulated time, the writ petition shall stand dismissed. The petitioner shall also file his written statement if not filed earlier on the said date. The Court will fix a date for recording the evidence of the parties. Since the matter is old one, the trial court will do good by hearing and deciding the suit preferably within a period of one year. Adjournment shall be granted only under exceptional circumstances. If the petitioner seeks adjournment, a cost which shall not be less than Rs. 500/- per adjournment be imposed on him.

If written statement has not been filed, it shall be filed in any case on or before 12th of October, 2009 and no further time shall be granted for the same.

Subject to the above, the writ petition succeeds and is allowed. The order of the revisional court is hereby set aside.