Suleman vs IVth Addl. District Judge,Muzaffarnagar & Ors.

D. K. Seth, J.—In a suit for specific performance the petitioner was one of the defendant, Sri Arjun Singhal, learned Counsel for the petitioner submits that no summon of the suit was ever served upon the petitioner. He was summoned to appear as a witness in the suit, pursuant to which he came and executed a Vakalatnama in favour of his Counsel for the purposes of answering the summons, requiring him to give evidence and not for a purposes of contesting the suit because there was no occasion for him to contest the suit. He further alleges that the suit was amended by order dated 1411986 after the death of the defendant''s father. He further allegeg that he was alleged to have executed a deed in favour of the plaintiff on the basis of power of attorney executed by his father, who had subsequently revoked the said power of attorney. In fact he had never executed any deed. By virtue of amendment on the death of the defendant''s father it was alleged that by reason of the alleged execution of saledeed the share of the defendant was transferred. Therefore the suit for specific performance in respect of the share of the petitionerdefendant on the basis of such amendment, was decreed expane on 2871988. It is then contended by Sri Singhal that after the amendment was allowed the petitioner was entitled to fresh summons of the suit, particularly when he had never been summoned to contest the suit. Unless summon is issued after amendment is allowed the suit could not have been proceed, and thus appearance of the petitioner, even if taken to be the appearance in the suit which Sri Singhal argues that the said fact is only an assumption and not admission. By reason of the amendment, cannot be taken to be the appearance in the suit. According to him unless fresh notice is given after the amendment is allowed the suit cannot be proceeded and it should be treated to be in absence of summons. He relies on the decision in the case of Smt. Son Kunwar Rai v. Indra Bai, 1986 (1) Current Civil Causes 1086. The said decision of Madhya Pradesh High Court was rendered by Single Judge in second appeal with regard to the point, "whether, in the facts and circumstances of the case, a notice of the amendment made by the plaintiff was mandatory to the defendant (appellant herein), irrespective of the fact that she was exparte when the application was made ?"

The facts of the case was summarised in para 3 of the said judgment to the following effect:

"The appellantdefendant though denying the plaintiff''s averments, has filed the written statement, yet thereafter remained absent allowing the trial Court'' to proceed exparte against her. The respondent/plantilff on the day preceding the date of judgment passed by the trial Court i.e. 1091979 moved an application under Order VI, Rule 17, CPC for amending the plaint. The trial Court on the same day allowed the amendment sought for without issuing notice or affording any opportunity to the appellantdefendant and on the next day i.e. 1191979, delivered the judgment."

On these facts the said decision was rendered. In the said case it was held:

"6. No. doubt for moving an application for amending the plaint or written statement under the provision of Order VI, Rule 16, CPC no stage is prescribed but all the same if amendment is made or sought for, then opportunity to the other party must be afforded so that the party concerned becomes aware of what case he has to defend.

In the instant case it appears that as the appellantdefendant remained absent the trial Court did not think it proper to serve notice to the defendant. That is not the law. Even if the party is exparte, if an amendment application is made then that must be served to the party concerned and still if the party remains absent despite notice, then the court after applying its discretion may pass an appropriate order. Thus even in exparte case without serving the notice of amendment application to the party who remained exparte and allowing amendment behind his back, would be without jurisdiction."

The above observation indicates that notice relating to amendment is to be given. If despite such notice the other side remains exparte in that event the court after applying its discretion may pass appropriate order. This case was on the has;: of facts of the case decided therein. In the said case the suit was decreed exparte on 119 1979, whereas the amendment was allowed one day before, namely, on 1091979 without giving notice. In the present case nowhere it has been alleged that copy of amendment application was not served on the learned Counsel for the petitionerdefendant or that he was not aware of the amendment allowed. The amendment was allowed on 1411986 whereas the petitioner had appeared in the suit on 29111985. The suit was ultimately decreed exparte on 2871988. The time gap between 1411986 and 2871988, namely, twoyears and six months was sufficient for the petitionerdefendant who had knowledge of the suit, to contest the suit and appear on the date for exparte hearing.

The contention that he had executed Vakajatnama only for the purposes of answering the summons, requiring him to give evidence, is very difficult to accept. For the purposes of answering the summons requiring person to give evidence, does not require for execution of Vakalatnama. If he appears as a witness in the^uit he is not required to execute Vakalatnama in favour of any Counsel. Vakalatnama is executed in favour of the Counsel only for the purposes of empowering the Counsel to conduct the case on behalf of the petitioner. The appearance of the party in a suit is signified by filing a Vakalatnama through a Counsel. If the person wants to appear in person, he has to file memo of appearance. Execution of Vakalatnama cannot signify that it is only for the purposes of giving evidence and not for contesting the suit. In the appellate court order it has been found that he had not only filed Vakalatnama but he had made certain applications in the suit which is apparent from the record. Thus, it shows that Vakalatnama was executed for the purposes of conducting the suit. If the application for amendment was filed only after one month and 16 days from the date of his appearance, therefore, it cannot be said that despite being represented through a lawyer on the basis of Vakalatnama so executed the application for amendment Was not served on the learned Counsel for the petitionerdefendant. My notice has not been drawn to any material to show that the said Counsel was ever discharged or that the application for amendment was not served on the Counsel for the petitioner or that the application for amendment was not served at all on the Counsel or that the order dated 1411986 allowing the amendment was not within the knowledge of the petitioner.

In these circumstances the ratio decided in the case of Smt. Son Kunwar Rai

(supra) cannot be attracted in view of distinguished facts involved in the two cases. Therefore, I am unable to persuade myself to accept the contention of Sri Singhal for applying the ration of the said Smt. Son Kunwar Rai (supra) in the present case

Both the trial Court and the appellate court had concurrently found that the petitioner had knowledge of the suit and had time to appear even after the amendment in theexparte hearing. The facts found being concurrent the writ court is very slow in interfering unless it is shown to the court that the same is, perverse. Nothing has been shown to me so at how these concurrent findings are perverse. On the other hand the case was contested only on the legal point, as has been pointed out earlier.

Order IX, Rule 13 in the Second Proviso provides "that no court shall set aside the decree passed exparte merely on the ground that there has been any irregularity in service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff''s claim. Therefore, the absence of service of summon would not be a ground to set aside exparte decree if the court is satisfied that the defendant had notice of the date of hearing of the case and had sufficient time to appear and answer the Plaintiff''s claim. Admittedly, the petitioner had appeared on 29111985 and exparte decree having been passed on 2871985, long after two and half years, it cannot be said that he had no sufficient time to appear and answer the plaintiff''s claim. Since he was aware of the proceeding and executed Vakalatnama and appeared in the suit through a lawyer it was incumbent on him to contact his lawyer and to inquire about the development of the suit, as the case may be. Learned Counsel for the petitioner points out that after 29111985 he did not inquire about the proceeding and therefore was unaware of the date fixed for exparte hearing. Such a contention cannot speak well of the conduct of the defendant, who having notice and knowledge of the suit proceeding deliberately kept himself away from the proceeding itself and cannot claim that it was incumbent on the court to apprise him of the position at every stage. The Code of Civil Procedure does not provide for any such procedure as to issue of fresh notice at every stage of the proceeding in case the defendant remains absent.

For all these reasons I am not inclined to interfere with the order impugned. The writ petition fails and is accordingly dismissed. There will be, however, no order as to costs.