SRI DEV MURTI AND OTHERS vs SRI BHARAT JI MAHARAJ AND ANOTHER

Manoj K. Tiwari, J

This is defendants petition, under Article 227 of the Constitution of India, against the order dated 06.03.2017 passed by 1st Additional District Judge,

Rishikesh, District Dehradun in Civil Revision No. 73 of 2016.

Brief facts of the case are as under:-

Respondent Nos. 1 and 2 filed a suit for possession and mesne profit against petitioner and 5 others, which was registered as Civil Suit No. 468 of

1999. The said suit was decreed ex-parte on 15.04.2010 against the defendants. Thus, feeling aggrieved, petitioner filed an application under Order

9 Rule 13 of C.P.C. for setting aside ex-parte decree. Since there was some delay in filing the application, therefore, an application under Section 5

of the Limitation Act was also filed by the petitioner. Learned trial court allowed these two applications by means of two orders dated 30.01.2016

subject to payment of cost of `2,000/-. The plaintiffs/respondent Nos. 1 & 2 filed two separate Civil Revisions, which are numbered as 71 of 2016

and 73 of 2016 against the aforesaid orders dated 30.01.2016 before the learned 1st Additional District Judge, Rishikesh, Dehradun. Civil Revision

No. 71 of 2016 was filed against the order, whereby petitioner’s application filed under Section 5 of the Limitation Act was allowed, while Civil

Revision No. 73 of 2016 was filed by the plaintiffs/respondent Nos. 1 & 2 against the order passed by the learned trial court, whereby petitioner’s

application, under Order 9 Rule 13 of C.P.C., was allowed. Learned revisional court dismissed Civil Revision No. 71 of 2016 by means of judgment

and order dated 06.03.2017, however, Civil Revision No. 73 of 2016 was partly allowed and the application under Order 9 Rule 13 of C.P.C. was

directed to be decided afresh. Thus, feeling aggrieved, petitioner has approached this Court against the order dated 06.03.2017 passed in Civil Revision

No. 73 of 2016.

Learned counsel for the petitioner has relied upon a judgment rendered by Orissa High Court in Khetrabasi Srichanandan & others Vs Gopinath

Srichandan reported in AIR 2009 (NOC) 926 Orissa, where it has been held that if it is found that the absence of the defendants is not mala fide or

intentional and the plaintiff can be compensated through cost, then application for setting aside ex-parte decree should be allowed. Paragraph 7 of the

said judgment is extracted below:-

“7. In the present case, admittedly, the suit was for declaration of title and confirmation of possession or in the alternative for recovery of

possession. The absence of the defendants was not mala fide or intentional and the absence of the defendants can be compensated by awarding

adequate cost and the dispute should be decided on merit. A very narrow and technical approach in dealing with the matter pertaining to setting

aside and exparte order should not be adopted by the revisonal court.â€​

Learned counsel for the petitioner has further relied upon another judgment rendered by Kerala High Court in Narikodan Sathyavalli & another Vs

Syndicate Bank, Maloor Branch, Kannur, District reported in AIR 2015 Kerala 209 in which similar view has been taken. Paragraph 6 of the said

judgment is extracted below-

“6. In the light of the binding decision of the Apex Court, we are of the opinion that the court below ought not to have placed reliance on the fact

that the defendants were set ex parte on an earlier occasion for the reason that the order setting them ex parte on 7.3.2012 was set aside by order

passed in I.A. No. 1455 of 2012 after condoning the failure to appear earlier. The court below should not have in our opinion, in the absence of any

material to show that the absence of the defendants on 3.12.2013 and 4.12.2013 was intentional or mala fide, held that as a condition for setting aside

the ex parte decree, the defendants should be held liable to deposit the sum of Rs. 2,00,000/- towards the decree debt. As first defendant was

undergoing treatment for breast cancer and she had undergone chemotherapy on 3.12.2013, the court below ought to have in our opinion set aside the

ex parte decree on payment of a reasonable amount as costs, instead of directing the appellants to deposit a substantial amount towards the decree

debt. We are therefore of the opinion that the impugned order deserves to be set aside.â€​

It is settled position in law that the Rules of procedure are handmaid of justice and endeavour of the court should be to do complete and substantial

justice between the parties. The Hon’ble Apex Court has held that in such matters, liberal approach should be adopted, so that lis be decided on

merits.

Hon’ble Supreme Court in the case of Kailash Vs Nankhu & others reported in (2005) 4 SCC 480 has held as under:-

“28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent,

but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be

denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the

provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet

extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen Vs State of Bihar reported in (1975) 1

SCC 774, are pertinent:-

The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The processual law

so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid,

not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel

otherwise would be wholly inequitable.  …. Justice is the goal of jurisprudence - processual, as much as substantive.""â€​

In view of the aforesaid legal position, learned trial court rightly allowed defendants application for setting aside exparte decree, by exercising

discretion vested in it by law. Learned revisional court, therefore, was not justified in interfering with the order passed by learned trial court, whereby

defendants application under Order 9 Rule 13 of C.P.C., was allowed.Â

In such view of the matter, impugned order dated 06.03.2017 passed by learned 1st Additional District Judge, Rishikesh, District Dehradun cannot

be sustained in the eyes of law. The same is liable to be set aside and is hereby set aside.Â

Accordingly, the writ petition is allowed. However, having regard to the facts and circumstances of the case, the cost imposed by learned trial

court is enhanced from `2,000/- to `50,000/-, which shall be deposited by the petitioner/defendant in the trial court on or before 15.05.2018. It has

come to the notice of this Court that the matter is pending since 1999, therefore, learned trial court is requested to make every endeavour to decide

Original Suit No. 468 of 1999 as early as possible, preferably within one year from the date of production of certified copy of this order.Â