Rajinder Singh vs Jasvir Singh and another

M.S. Liberhan, J.—This is revision petition arising out of an order refusing to set aside an ex parte judgment and decree of injunction passed against the Petitioner.

The counsel for the Petitioner contends that a suit for permanent injunction brought by Respondent No 1 in which his application for temporary injunction was declined by the trial Court. The order was challenged in appeal which was allowed on May 4, 1984 and the parties were directed to appear before the trial Court for further proceedings on merits on May 21, 1984. Since the records were not received from the Additional District Judge, the case was adjourned from time to time and finally on July 16, 1984, on receipt of the record, the trial Court order issuing of notice to the parties. The Petitioner appeared through an advocate Mr. H R. Agnihotri. The case was adjourned from time to time for filing of their written statement. Finally on January 3, 1985, when the case was fixed for filing the written statement, neither the Petitioner nor his counsel appeared. Written statement was filed by Defendant No. 2 and the case was adjourned for filing the replication. On January 15, 1985, when again neither the Petitioner nor his counsel appeared, the Petitioner was proceeded ex parte, However, in view of Defendant No. 2 having admitted the claim, no issues were framed Further the statement of the Plaintiff was recorded on oath. Thus an ex parte decree dated February 22, 1985, was passed.

The Petitioner on coming to know of the ex-parte decree preferred an application for setting the same aside inter alia contending that he had no knowledge of the ex parte decree and he had been attending the Court when the record was not received. It was averred that the counsel did not inform him of the decree or proceedings and hence there was a sufficient cause for his non-appearance on January 3, 1985 and January 15, 1985

The trial Court found that the Petitioner was duly represented by Mr. H. R. Agnihotri, Advocate, during the proceedings and subsequently he chose to absent from the proceedings. It was farther observed that it is not the case of the Petitioner that he absented due to some circumstances beyond his control. It was observed that zimni order belie the evidence produced by the Petitioner that he had no information with respect to the date as Mr. Agnihotri was his counsel who had been appearing for him in the proceedings. Thus, finding no sufficient canto for setting aside the ex parte judgment, the application was dismissed

The counsel for the Petitioner contends that the Petitioner had put faith in the counsel who had been representing him before the lower appellate Court as well as the trial Court and having no information from the counsel by itself is a sufficient cause for non-appearance on the date fixed when ex parte order was passed. There is no allegation of mala fide nor anything has been pointed out that by absence the Petitioner stood to gain.

The counsel for the Respondents contends that since there is no ex parte order and the order was passed under Order 8 Rule 5, CPC Code, the ex parte decree cannot be set aside. In order to support his contention, be relies on The Traders'' Bank Ltd. v. Anar Singh A. I. R. 1988 Del 55.,

In my considered view, there is no dispute with the proposition of law laid down in the judgment cited by the learned Counsel for the Respondents However, herein the facts and circumstances are entirely different. No order has been passed under Order 8 Rule 5, C. P. C. in this case Order 8 Rule 5 only envisages that when Defendant after service of the summons does not file pleadings, it shall be permissible for the Court to pronounce the judgment on the basis of the facts contained in the plaint or in its discretion to ask the Plaintiff to prove the facts alleged It is obvious from a reading of the zimni orders that no order under Order 8 Rule 5 has been passed either by accepting the pleading or asking the Plaintiff to prove the facts alleged in the plaint though the statement of the Plaintiff was recorded on oath. The judgment was not passed on account of non-filing of the written statement. The Petitioner had been proceeded ex parte as envisaged by Order 9 of the CPC as neither the Defendant nor his counsel was present. In view of this, the provisions of Order 8 Rule 5 cannot be said to have been attracted in the facts and circumstances of this case.

From the facts and circumstances stated above I am of the considered view that the trial Court has failed to take into consideration the facts that the Petitioner had done whatever an illiterate litigant could do in the facts and circumstances stated above. He relied on a counsel and instructed him and it is the counsel who failed to protect his interest by not informing him properly. It can at the most be a negligent act. In case of negligence injustice is not to be perpetuated. A party should have a fair opportunity of hearing and costs can be imposed for negligence. Costs is the panacea for the lapse committed by the Petitioner.

In view of my above observations the revision petition is accepted and the judgment, decree and the order refusing to set aside the ex parte judgment and decree are set aside on payment of Rs. 1000/-as costs. The parties are directed to appear before the trial court on March 16, 1989, when the written statement shall also be filed. No further opportunity for filing of the written statement shall be granted. The suit be disposed of expeditiously.