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1983 DIGILAW 520 (ALL)

Sita Ram v. XIV Additional District Judge

1983-08-03

M.P.MEHROTRA

body1983
JUDGMENT M.P. Mehrotra, J. - This petition is directed against the appellate Court's order dated 28th July, 1982, which is Annexure II to the petition. 2. The facts, in brief, are these. The Original Suit No. 271 of 1979 was filed by Sita Ram, the Petitioner before me. The Defendants in the suit, inter alia, were the Union of India and Smt. Maya Devi. The reliefs sought in the plaint were as follows: A. That a decree be passed in favour of the Plaintiff and against the Defendants, that the order of payment of the face value of Rs. 1000/- per each of the National Savings Certificates No. 7NS/GO 790721, No. 7NS/GO 790722, No. 7NS/GO/790723 and No. 7NS/GO/790724 and interest thereon, if any by the Defendant Nos. 1 and 2 in favour of the Defendant No. 3 on 18-3-74 through the post office Nawabganj, Kanpur is illegal, void ab initio, without jurisdiction and confers no right, title or interest on the Defendant No. 3 to collect the amounts of the said certificates and in consequence thereof a mandatory injunction be issued commanding the Defendants to pay the face value on the said certificates together with up-to-date interest thereon at the prescribed rate 7-1/4 % to the Plaintiff. B. That cost of the suit be paid to the Plaintiff. C. Any other reliefs which this Court may deem just and proper in the circumstances of the case be also granted to the Plaintiff. 3. It will be seen that the short controversy was whether the payment of certain amount in respect of certain National Saving Certificates made by the Union of India to Smt. Maya Devi was valid or not, as the Plaintiff Sita Ram questioned the validity of such payment. This suit was decreed against the Defendants on 9-9-1981. A certified copy of the trial Court's judgment has been filed by the Petitioner in compliance with the Court's order dated 16th December, 1982. The Petitioner has also filed a certified copy of the trial Court's decree passed in the said suit. The said lady Smt. Maya Devi, who was Defendant No. 3 in the said suit and who is Respondent No. 2 in the present writ petition, moved an application under Order 9 Rule 13 CPC praying that the said decree be set aside against her as it was passed ex-parte against her. Her contention was that her counsel Sri. The said lady Smt. Maya Devi, who was Defendant No. 3 in the said suit and who is Respondent No. 2 in the present writ petition, moved an application under Order 9 Rule 13 CPC praying that the said decree be set aside against her as it was passed ex-parte against her. Her contention was that her counsel Sri. S.L. Goyal did not appear on the date of the final hearing of the suit and she herself was also not present on the said date. Therefore, the decree was ex-parte so far as she was concerned. It seems that the suit had been earlier dismissed in default on 23rd September 1980 but had been restored again on 29th November, 1980. Thereafter, the counsel of the parties were informed of the said restoration and Smt. Maya Devi's counsel Sri. S.L. Goyal made an endorsement on the order-sheet on 17th December, 1980, that he ceased to be a counsel in the suit. It seems that due to this endorsement, the said counsel did not appear in the suit thereafter when the final hearing took place and the suit was decreed against all the Defendants. 4. The aforesaid application moved by Smt. Maya Devi under Order 9 Rule 13 CPC was rejected by the trial Court by its order dated 19-12-1981, a true copy of which is Annexure-I to the petition. Smt. Maya Devi went up in appeal against the said order and the same was allowed by the appellate Court by its impugned judgment which is Annexure-II to the petition. The appellate Court held as under: As the Defendant Appellant Smt. Maya Devi was never informed and she was not aware about the date for final hearing. I find that it is a fit case in which an ex-parte decree can be set aside against the Defendant Appellant on payment of costs. 5. Feeling aggrieved, the Petitioner, Sita Ram has come up in the instant petition and in support thereof. I have heard the learned Counsel for the Petitioner. The learned Counsel's contention is that till such time as Smt. Maya Devi's counsel did not withdraw from the suit with the permission of the Court, counsel's authority continued and, therefore, the trial Court was right in holding that the said lady Smt. Maya Devi should be held to be represented by the said counsel. In my view, this contention has no relevance. In my view, this contention has no relevance. Even if the said counsel's authority subsisted still when he had not appeared, the decree was passed ex-parte against the said lady. She was entitled to contend that in the said circumstances, there was sufficient cause for her non-appearance and the decree was fit to be set aside. This has been the approach of the appellate Court and, in my view, there is no lack of jurisdiction or any error of law which can be said to be patent on the face of the record. Further, it should be seen that so far as the sufficiency of cause is concerned, the said controversy fell within the jurisdiction of the Courts below and this Court in its writ jurisdiction cannot interfere with the finding recorded by the appellate Court. 6. This petition is accordingly dismissed in limine.