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1979 DIGILAW 998 (ALL)

Sita Ram v. State

1979-09-13

H.N.AGARWAL

body1979
JUDGMENT H.N. Agarwal, Member. - This is a reference made by the learned Additional Commissioner, II Allahabad Division, Allahabad recommending that the revision filed by Sita Ram against the order dated 9.4.73 passed by the Revenue Officer, Farrukhabad, in a case under Section 229-B of the U.P.Z.A. and L.R. Act, may be rejected. 2. I have heard the learned counsel for the parties and have gone through the record. 3. Sita Ram filed a suit seeking declaration of sirdari rights over certain plots impleading the State of U.P. Through Collector Farrukhabad and Gaon Sabha Katri-Fatehpur through its Pradhan as defendants. The suit was decreed ex parte by the trial courts on 30.11.70. On 9.12.70 the State of U.P. through District Government Counsel moved an application for setting aside the ex parte decree. The trial court by its order dated 9.4.73 allowed this application, and fixed the case for the evidence of the parties, Sita Ram has challenged this order in revision. 4. The grounds taken in the revision are; firstly that there was no sufficient cause for non-appearance and no restoration could be allowed as a matter of grace, secondly that the learned D.G.C. was not a party to the proceeding, the party was the State Government and therefore the negligence of D.G.C. did not arise and, therefore the trial court was bound to dismiss the restoration application; thirdly that it is settled law that court cannot go into the channels of communication between the client and the counsel and therefore to restore the case on the ground that papers were not received by the D.G.C. from the office of the D.L.R.O. is wholly unwarranted in law and lastly that no satisfactory explanation having been given and no sufficient cause having been established by the State Government, the order allowing the restoration application suffers from jurisdictional error and is liable to be set aside. 5. The trial court record shows that the notice issued by the trial court for the State of U.P. was received not by the Collector Shri J.N. Tewari (where designation is not given) on 29.8.70 and the registered notice for the Pradhan requiring his appearance on 20.11.70 was received by the Pradhan on 12.11.70. As neither the State nor the Gaon Sabha put in any appearance the trial court ordered on 20.11.70 that the case to be fixed for ex parte evidence. As neither the State nor the Gaon Sabha put in any appearance the trial court ordered on 20.11.70 that the case to be fixed for ex parte evidence. On 30.11.70 the trial court recorded oral evidence of the plaintiff and passed a seven lines order on the same date decreeing the suit ex parte. On 9.12.70 the State of U.P. through D.G.C. moved an application for setting aside the ex parte order on the ground that the written statement could not be filed on account of the instructions to contest the suit being received with delay. 6. Rules 6 and 13 of order IX C.P.C. provide as follows:- Rule 6;- Procedure when only plaintiff appears:- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then- When summons duly served:-(a) if it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte; When summons not duly served-(b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and serval on the defendant; When summons served, but not in due time:-(c) if it is proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. Rule 13:-Setting aside decree ex parte against defendant- "In any case in which a decree is passed ex parte against 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 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 defendant also :- (Provided further 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 notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim). It will thus be seen that, where summons have been duly served and the defendant does not appear when the suit was called for hearing it is in the discretion of the court to order exparte hearing. This also implies that it is within the discretion of the court not to hear the suit ex parte and to give further opportunity to the defendants to put in appearance. Further under clause (c) of Rule 6(i) the court has also to consider whether the defendant had sufficient time to enable him to appear and answer on the date fixed in the summons or whether the time was insufficient. Under Rule 13 the court shall set aside the exparte decree if it is satisfied that the defendant was prevented from appearing by any sufficient cause. In this connection the learned counsel for the revisionist has cited two decision: Ais Ahmad v. Syad Akhtar Husain Naqvi, (1966 A.W.R. page 137 (H.C.) and A.I.R 1973 (Calcutta) page 54. In the former case Mr. Justice D.S. Mathur has observed as follows:- "When the Additional. Munsif recorded the finding that both the sets of defendants were guilty of negligence, he had no jurisdiction to set aside the ex parte decree. The ex parte decree can be set aside only if the defendants had sufficient cause for not appearing in court on the date the ex parte decree was passed. When a party was negligent he cannot be said to have had sufficient cause for non appearance." In the latter case it has been held that where a suit has been dismissed for default of appearance caused not by bona fide mistake but by gross negligence of the plaintiff and his solicitor the suit cannot be restored. 7. When a party was negligent he cannot be said to have had sufficient cause for non appearance." In the latter case it has been held that where a suit has been dismissed for default of appearance caused not by bona fide mistake but by gross negligence of the plaintiff and his solicitor the suit cannot be restored. 7. It will be observed that in both these decisions the vital point is the finding of the trial court whether a party has been guilty of gross negligence. The established principle is that where the court records a definite finding that a party has been grossly negligent, that party cannot get the benefit of restoration. But where the court is satisfied that there has been no gross negligence on the part of the party in the restoration and that there is sufficient cause for the non-appearance, the court is bound to set aside the ex parte decree. This principle may be applied to the present case as well. I find that the trial court as well as the learned Additional Commissioner have been confused on this question and have thus been unable to record any definite finding. The trial court has been unnecessarily trying to apportion blame between the District Government Counsel and the District Land Reforms Office none of whom were parties to the case. On the other hand the defendants were (1) The State of U.P. though Collector and (2) the Gaon Sabha through the Pradhan. It must be remembered that the District Land Reforms Officer is neither the State of Uttar Pradesh nor has he been given the legal authority to represent the State of Uttar Predesh. On the other hand, the impleadment of the State of Uttar Predesh through the Collector indicates that the Collector has been authorized to represent the State of Uttar Pradesh. The questions, thus would arise are: (1) whether the State of Uttar Pradesh was duly served when the service of the parties was not on the Collector but on Sri J.N. Tewari ? (2) Whether in the absence of the service on the Collector, the Collector can be considered to have been grossly negligent. Alternatively whether the State of Uttar Pradesh can be considered to have been grossly negligent irrespective of the question on whom the service was made. (2) Whether in the absence of the service on the Collector, the Collector can be considered to have been grossly negligent. Alternatively whether the State of Uttar Pradesh can be considered to have been grossly negligent irrespective of the question on whom the service was made. (3) Whether sufficient cause had been shown by the State of U.P. and the Gaon Sabha for not appearing on the date fixed for hearing. As important legal questions regarding the conduct of cases on behalf of the State are involved, it is necessary that the trial court should first record definite findings on the above question and thereafter decide the restoration application in the light of the above observations. 8. With the above observations I hereby rescind the order of the trial court dated 9.4.73 and remand the case to the trial court for decisions of the restoration application afresh.