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Judgment
Ritu Raj Awasthi, J.—The present writ petition was initially filed by one Jagdish Prasad @ Bachole who died during the pendency of the present writ petition and was substituted by his legal heirs, namely, Smt. Shiv Natha, Santosh Kumar, Durga Shanker, Ashok Kumar, Madhuri Devi and Malti Devi.
By means of the present writ petition the petitioners have challenged the order dated 09.04.2004 (Annexure No.5) whereby the application (3Ka) moved under Order IX Rule 13 of Civil Procedure Code to recall the ex parte order dated 19.01.2000, was rejected by the Opposite Party No.2, Civil Judge, Junior Division, (South) Unnao. The petitioner has also challenged the order dated 09.04.2004 (Annexure No.1) passed in Appeal No. 57 of 2002 by the Opposite Party No.1, Additional District Judge, 4th, Unnao.
The factual matrix as borne out from the records of the writ petition are that the suit No. 71/1983 was filed in July 1983 by Opposite Party No.3, Raja Ram Shukla for permanent injunction and possession of land described in the site plan. The present petitioner was impleaded as opposite party in the said suit and he had filed his written statement on 24.11.1983. The issues were framed on 14.12.1988 and on 01.12.1994 the case was fixed for final hearing. On several dates the case was adjourned on the request of the petitioner for filing evidence. Ultimately on 15.04.1996 the evidence of the Opposite Party No.3 was recorded and the case was fixed for ex parte hearing.
It is alleged that the Opposite Party No.3 (plaintiff in Suit No. 71/1983) had made certain amendment in the suit on 19.02.1992 after a period of 8 years of filing of the suit. By order dated 04.10.1993 the learned trial Court had issued commission. In spite of fact that earlier commission report dated 04.03.1986 was available on record. The petitioner when came to know about the said order dated 04.10.1993 applied for recall of the said order by moving a separate application. However, during the pendency of the recall application the Commissioner executed the commission and submitted his report before the trial court. The application of the petitioner to recall the order dated 04.10.1993 was allowed on 05.02.1994. However, the learned trial court by order dated 26.11.1994 confirmed the Commissioner report. The petitioner thereafter filed a revision before the District Judge against the order dated 26.11.1994, which was subsequently dismissed. Thereafter, the petitioner had filed the writ petition no. 234 (M/S) of 1996 before this Court in which by order dated 16.09.1993 the proceedings of civil suit No. 71/1983 were stayed. The said writ petition was dismissed in default due to absence of the counsel for the petitioner on 05.04.1999 as such the application for its restoration was moved which remained pending.
It is alleged that the petitioner, somehow, came to know on 29.01.2000 that the Suit No. 71 of 1983 has been decreed ex parte on 19.01.2000. Thereafter the petitioner on 03.02.2000 moved the application under Order IX Rule 13 of C.P.C. for recall of the ex parte decree order which was registered as Misc. Case No. 14/2000. The objections on the said application were filed by the Opposite Party No.3 and the learned trial Court after hearing both the parties by the impugned order dated 26.07.2002 came to the conclusion that there was no sufficient cause for nonappearance of the present petitioner and, therefore, the application under Order IX Rule 13 was rejected.
The petitioner thereafter against the order dated 26.07.2002 had filed the Misc. Appeal No. 57/2002 before the District Judge, Unnao which was transferred to the court of Opposite Party No.1, Additional District Judge, Unnao. The Opposite Party No.1 by impugned judgment and order dated 09.04.2004 dismissed the said appeal and upheld the order dated 26.07.2002 passed by the trial Court.
It has been contended by the counsel for the petitioner that the petitioner was under bonafide impression that the proceedings of Suit No. 71 of 1983 have been stayed by the High Court and did not come to know that the writ petition No. 234(M/S) of 1996 was dismissed on 05.04.1999. The petitioner as soon as came to know that the writ petition has been dismissed he moved the application for restoration of case and recall of order on 02.09.1999. The application so moved by the petitioner remained pending before the High Court, however, the learned trial court passed the ex parte decree and order dated 19.01.2000. It has been submitted by the counsel for the petitioner that on 26.01.2000 the petitioner heard the rumour that the suit has been decreed ex parte against him and thereafter he contacted his counsel ultimately on 29.01.2000 he came to know about the ex parte order dated 19.01.2000. The petitioner immediately thereafter on 03.02.2000 filed the application under Order IX Rule 13 of C.P.C. for setting aside the decree ex parte against the defendant. It has been vehemently urged by the counsel for the petitioner that the learned trial court had committed a manifest error of law in coming to the conclusion that the petitioner had deliberately delayed the proceeding and he wanted to keep the case pending as in spite of several opportunities being given he had not filed evidence and got the proceeding stayed by filing writ petition No. 234 (M/S) of 1996. It has been submitted that it was not the petitioner but the Opposite Party No.3 himself who had got the proceeding delayed before the learned trial Court as the Opposite Party No.3 after a considerable long time in 1992 had amended the suit and got a commission issued by order dated 04.10.1993 although there was already a Commissioner report on record pertaining to year 1986. The counsel for the petitioner further submitted that the appellate court did not properly consider the various grounds taken in the appeal No. 57/2002 and rejected the appeal by impugned order dated 09.04.2004. It has been vehemently argued by the counsel for the petitioner that learned trial Court as well as the appellate Court have adopted a very narrow approach while considering the petitioner''s request for setting aside the ex parte decree and providing an opportunity to the petitioner to contest the case.
The counsel for the Opposite Party No.3 on the basis of counter affidavit submitted that there is no infirmity or illegality in the impugned orders. The learned Courts below had considered the relevant material on record and had come to the conclusion that there are no sufficient reasons to set aside ex parte decree against the petitioner (defendant) and the Opposite Party No.3 being the plaintiff before the trial Court was always interested in early disposal of the suit. However, it was the petitioner who had adopted all possible tactic to delay the disposal of the suit. The petitioner has not given any reason as to why he was not present on 15.04.1993 when the ex parte evidence of the plaintiff was recorded and the case was directed to be listed for ex parte hearing. It has been vehemently urged by the counsel for O.P. No.3 that the petitioner had not approached the learned trial Court with clean hands as in the application under Order IX Rule 13 moved on 03.02.2000 it was mentioned that the petitioner was under the impression that the proceeding before the trial Court has been stayed by the High Court and it was only on 26.01.2000 that the petitioner heard a rumour that the case has been decreed ex parte against him. It is submitted that the writ petition No. 234 (M/S) of 1996 was dismissed in default on 05.05.1999 and in the affidavit in support of application for restoration of case and recall of order dated 05.05.1999, filed by the petitioner himself it was mentioned that he had come to know about the dismissal of the writ petition on 30.08.1999, as such the petitioner was fully aware about the High Court order and he deliberately avoided to come to participate in the proceedings before the trial Court.
I have heard Sri G.S. Nigam, learned counsel for the petitioner as well as Sri Madan Gopal Mishra, learned counsel for the O.P. No.3 and perused the record.
The suit No. 71/83, Raja Ram v. Jagdish, was decreed ex parte on 19.01.2000. In fact the petitioner had filed a revision which was registered as 09/1995 against the order dated 26.11.1994 regarding the confirmation of the Commissioner survey report. The said revision was dismissed on 20.05.1995, against which the petitioner had filed W.P. No. 234 (M/S)/1996 before the High Court. By order dated 16.09.1996 the High Court had stayed further proceedings in suit No. 71/83. It is evident from the record that before the proceedings were stayed by the High Court the evidence of the plaintiff was recorded on 22.03.1996 and the case was directed to be listed for ex parte hearing on 15.04.1996. The writ petition No. 234 (M/S) of 1996 was dismissed in default due to nonpresence. During the course of argument the counsel for the Opposite Party No.3 had produced the certified copy of the order dated 05.04.1999 passed in writ petition No. 234 (M/S) of 1996 which shows that the interim order was vacated due to the absence of the petitioner.
The counsel for the petitioner in support of his arguments has cited several judgments of the Apex Court as well as of this Court on the legal proposition that while considering the application under Order IX Rule 13 the Courts shall adopt a liberal view while considering the cause for nonappearance of the defendant in order to do complete justice between the parties. In this regard the petitioner has cited the judgment of Hon''ble Supreme Court in the case of G.P. Srivastava v. R. K. Raizada and others, 2000 RJ 797, Bakuntha Nath Gupta v. Janki Devi and others, 2003(52) A.L.R. 312, Ram Sagar and others v. District Judge, Gonda and others, 2004 A.L.J. 2850. There is no dispute so far as the legal proposition as mentioned in the aforesaid judgments are concerned. However, the facts and circumstances of the case mentioned in the aforesaid judgment are different from the facts and circumstances of the present case and therefore the aforesaid judgments are of no assistance to the petitioner. In the present case the perusal of the impugned order dated 26.07.2002 passed by the learned trial Court clearly indicates that the Suit No. 71/1983 was instituted in the year 1983 and the written statement was filed by the present petitioner on 24.11.1983. The suit was amended on 19.02.1992 and thereafter on 01.12.1994 the case was fixed for final hearing. With the intention to delay the proceeding the petitioner had filed a civil revision No. 09/1995 which was ultimately dismissed on 20.05.1995 and thereafter the case was listed on 12.09.1995 for evidence, however, no evidence was filed by the petitioner and on his request several dates were fixed for production of evidence by him. Ultimately on 22.03.1996 the evidence was closed and on 15.04.1996 the orders were passed to proceed ex parte against the petitioner (defendant). The petitioner was fully aware that on 22.03.1996 the evidence of the Opposite Party No.3 (plaintiff) has been closed and by order dated 15.04.1996 the learned Court has ordered for ex parte hearing of the case. However, the petitioner did not move any application for recall of the said order and for providing an opportunity of cross examination of PW2. It is evident from the record that the petitioner had filed his written statement before the learned trial Court and had contested the case, however, he chose to file W.P. No. 234(M/S) of 1996 challenging the order dated 22.11.1994 only and got the stay order dated 16.09.1996 staying the proceeding of Suit No. 71/83. The learned trial Court while deciding the application under Order IX Rule 13 has considred the entire material on record and has come to the conclusion that the cause shown by the petitioner for nonappearance was not sufficient and, therefore, the application under Order IX Rule 13 is liable to be rejected.
The learned appellate Court of Additional District Judge, 4th, Unnao while deciding the appeal no. 57/2002 filed by the petitioner had considered the various grounds taken in the appeal and had observed that the ex parte decree order was passed by the learned trial Court on 19.01.2000 and the petitioner surprisingly without any delay came to know of the said order dated 26.01.2000 and thereafter moved the application under Order IX Rule 13. The appellate Court had rightly come to the conclusion that the petitioner has failed to give any explanation as to why he was not present on 15.04.1996 before the learned trial Court when the order was passed to proceed ex parte against him. It has been further observed by the appellate Court that the petitioner for one reason or other had tried to prolong the proceeding before the learned trial Court as he had initially filed a revision No. 9/95 and after its disposal had filed the writ petition No. 234(M/S)/1996. He was given last opportunity to submit his evidence on 07.12.1995 but he did not do so and instead prolonged the proceedings by filing writ petition which was ultimately dismissed on 05.05.2000. From the perusal of the impugned order dated 09.04.2004 passed by the appellate Court it is very much clear that the stay order granted by the High Court in writ petition No. 234 (M/S)/1996 was vacated on 05.04.1999, however, the petitioner for the reasons best known to him did not appear before the learned trial Court although he was fully aware that in view of the order dated 05.04.1999 his stay order has been vacated and the proceeding before the trial Court are no more stayed. The arguments of the counsel for the opposite party that the petitioner had come to know on 30.08.1999 that the writ petition No. 234 (M/S)/1996 has been dismissed find force from the fact that the petitioner himself in the affidavit filed in support of application for restoration had mentioned that he had come to know about the dismissal of the writ petition No. 234 (M/S)/1996 on 30.08.1999.
Moreover, the Court cannot lose sight of the fact that the Suit No. 71/83 was filed in July 1983 and it was ex parte decreed on 19.01.2000. There is no stay order in the present petition. As per order dated 29.07.2004 the counsel for the O.P. No.3/caveator had only given an undertaking that upto 10.08.2004 the execution proceedings will not be persued and in future no further undertaking shall be given. As such after such a long time there is no reasonable cause for the Court to grant indulgence and set aside the orders passed by the Courts below.
In view of the above, I am of the considered opinion that there is no infirmity or illegality in the impugned order dated 26.07.2002 passed by the learned trial Court in Misc. Case No. 14/2000 arising out of regular Suit No. 71 of 1983 by the learned Court of Civil Judge, Junior Division, South, Unnao as well as the order dated 09.04.2004 passed in appeal No. 57/2002 by the learned Court of Additional District Judge, 4th, Unnao. The writ petition lacks merit and deserves to be dismissed and is hereby dismissed. No order as to costs.
(Petition dismissed)