The Peerless Tea and Industry Ltd. and Others vs Tripura Tea Development Corporation Limited

S.C. Das, J.—1. This appeal under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908 is directed against order dated 08.02.2012 passed by learned Civil Judge, Senior Division, Court No. 1, Agartala in Misc Case No. 05 of 2010 under Order IX Rule 13 of CPC arising out of Money Suit No. 27 of 2006.

Heard learned counsel, Mr. S.B. Debnath for the appellants and learned counsel, Mr. B. Saha for the respondents.

The respondent, as plaintiff, instituted Money Suit No. 27 of 2006 in the Court of Civil Judge, Senior Division, Agartala, Court No. 1, seeking a decree for realization of an amount of Rs. 1,41,59,998/- from the defendants, i.e. the appellants herein. The suit was instituted on 27.09.2006. The appellants herein who were arrayed as defendants in the suit on their appearance sought for time to file written statement on numerous dates. On 21.11.2008 the trial Court passed an order allowing last chance to the defendants to submit written statement fixing 19.01.2009. On that day, i.e. on 19.01.2009 though there was representation on behalf of the plaintiff but no step was taken on behalf of the defendants and no written statement also was filed and therefore on that day the Court passed order that the suit shall proceed ex parte against all the defendants. Thereafter, evidence of the plaintiff was recorded and the ex parte judgment and decree was passed on 19.09.2009.

The defendants filed an application before the trial Court under Order IX Rule 13 of CPC praying for setting aside ex parte judgment and decree dated 19.09.2009 and to allow the defendants to submit written statement and contest the suit. That petition was registered as Misc. Case No. 5 of 2010 arising out of M.S. 27 of 2006. It is pertinent to mention here that the petition under Order IX Rule 13 of CPC was filed along with a petition under Section 5 of the Limitation Act seeking condonation of delay and the prayer of condonation of delay was allowed. The plaintiff-opposite party submitted written objection against the prayer made under Order IX Rule 13 of CPC and after hearing learned counsel of both side trial Court passed impugned order dated 08.02.2012 and thereby rejected the petition under Order IX Rule 13 of CPC.

It is submitted by learned counsel, Mr. Debnath that the Court below has failed to consider the grounds stated in the petition under Order IX Rule 13 of CPC and mechanically passed the order and thereby deprived the defendants from contesting the suit. Huge amount involved in the suit and therefore the defendants should be allowed to contest the suit by filing written statement and the suit may be decided on merit.

On the other hand learned counsel, Mr. Saha for the plaintiff-respondent has submitted that the order for ex parte hearing was passed by the trial Court after three years of the institution of the suit. Numerous adjournments were granted to file written statement but the defendants failed to submit any written statement. By order dated 21.11.2008 last chance was given fixing 19.01.2009 but on 19.01.2009 the defendants were absent and so the order for ex parte hearing was passed. The ex parte judgment and decree was passed after nine months i.e. on 19.09.2009 and during that period also the defendants did not take any step. He has also submitted that when the decree was put in execution the defendants came with the petition under Order IX Rule 13 of CPC seeking setting aside of the ex parte order. The defendants were deliberately negligent in contesting the suit and therefore the trial Court rightly rejected the prayer for restoration of the suit.

Order IX Rule 13 of CPC reads as follows:

"R.13. Setting aside decree ex parte against defendant.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also."

The above provision clearly stipulates that the defendant-petitioners were bound to assign sufficient cause to the satisfaction of the Court to pass an order setting aside the order of ex parte hearing. No doubt, the expression, "sufficient cause" should be considered with pragmatism in justice oriented approach and that it should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. The trial Court while rejecting the prayer of the appellants has observed--

"I have heard the rival contention of both the sides.

It is clear from the contents of the petition of the petitioners that by executing Vakalatnama learned counsel appeared an behalf of the four defendants. Even it is clear from their assertions that the defendant No. 4 contacted with the defendants No. 1 to 3 to send documents and other things for preparation of written statement. Several adjournments were also granted at the instance of them to submit written statement. Getting all these opportunities they failed to contest the suit by filing written statement. Thereafter, the Court passed an order in the month of Jan. 2009 that the suit will be decided ex-parte and after a lapse of about eight months the judgment and decree was passed.

Order 9, Rule 13 of CPC says that, a ex-parte decree can be set aside if defendants satisfy the court that the summons was not duly served or that they were prevented by any sufficient cause from appearing when the suit is called on for hearing. In the proviso it is stated that no Court shall set-aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had noticed of the date of hearing and had sufficient time to appear and answered the plaintiff''s claim.

In the case in hand after receipt of summons defendants entered their appearance and also sought several adjournments.

In my considered opinion the plea taken by the petitioners in this petition seeking relief by way of vacating the ex-parte order dated 19.9.2009 cannot be considered at this stage on the above pretext.

Hence the petition of the petitioners stands rejected. With my above observation this Misc. Case is disposed of on contest."

In their petition filed under Order IX Rule 13 the defendant-petitioners inter alia contended that on receipt of the summons the defendant-petitioners entered appearance through petitioner No. 4 and sought time for filing written statement on the ground that petitioner Nos. 1 to 3 are of Kolkata and to file the written statement, instruction of petitioner Nos. 1 to 3 was required. Necessary guidelines/documents were not sent by the petitioner Nos. 1 to 3 to petitioner No. 4 to file the written statement in time since there were some changes going on in the internal administration of the defendants and that is why the written statement could not be filed in time.

The cause, as stated above, asserted by the appellants can in no way be accepted as a reasonable cause to set aside the ex parte order. The cause must be convincing that due to compelling reasons the written statement could not be filed in time whereas the petitioners in their petition itself stated that the petitioner No. 4 i.e. the appellant No. 4 made communication to the appellant-petitioners Nos. 1 to 3 at Kolkata but received no guidelines and documents for which the appellant-petitioner No. 4 could not file the written statement. This shows the deliberate negligence and inaction as well as want of bona fide on the part of the defendant-appellant-petitioners and hence the trial Court rightly passed the order rejecting the prayer made under Order IX Rule 13 of CPC. The suit was filed in 2006. Ex parte decree was passed on 19.09.2009 and in the meantime ten years already elapsed. A litigation must have an end. It cannot be allowed to be prolonged for uncertain time. In the present case I find that the negligence, inaction and lack of bona fides were deliberate and therefore the trial Court rightly rejected the petition filed under Order IX Rule 13 of CPC. The appeal therefore deserves no merit for consideration and accordingly stands dismissed.

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