Sishupal v. Manak Chand — 1990 DIGILAW 76 (RAJ)

M.C. JAIN C.J.—The learned Single Judge by his order dated 13.12,89 has referred the following two questions to be answered by a larger bench:- 1- vk;k mHk; i{kdkjku dh mifLFkfr esa vxj okn vne lk{;] vne iSjoh ,oa vne mifLFkfr ds :i esa [kkfjt fd;k tk;s ml okn dks D;k vuqifLFkfr esa [kkfjt okn ekuk tk ldrk gS\ 2- vk;k izfroknh dks lqus fcuk ,oa mldks iqu% uEcj ij ysus ds vknsk dh lwpuk fn;s fcuk D;k vfxze dk;Zokgh ckn esa dh tk ldrh gS\F 2. Before considering the above referred questions, it would be appropriate to notice few relevant facts. The non-petitioner Manak Chand instituted a suit for arrears of rent and ejectment against the defendant petitioner Shishupal, on 9th May 1980 in the court of Munsif Beawar. The defendant appeared and filed his written statement on 15.12.80. Thereafter issues were framed. On 2.01.1985 the defendant and his counsel were not present so an exparte order was passed. On 11.9.85, the plaintiff and his counsel were also not present and so the suit was dismissed in default. An application for restoration was filed by the plaintiff and the suit was restored to its original number on 11.10.85 without notice of the restoration application to the defendant. The suit was ultimately decreed on 17.2.86 and exparte decree was passed. An application for setting aside the exparte decree was presented by the defendant on 20.05.1986. That application was rejected on 29.07.1986 by the Munsif, Beawar. The defendant preferred an appeal which was heard by the Additional District Judge Beawar. The appeal was also dismissed by the Additional District Judge on 1st Feb. , 1989. Dissatisfied with the order of the learned Additional District Judge, the present revision was preferred by the defendant and during the course of arguments, the learned Single Judge framed the aforesaid two questions and referred the questions to the larger bench. 3. We have heard Shri Kejriwal, the learned counsel for the petitioner and Shri G.P. Kaushik, the learned counsel for the plaintiff-non-petitioner. 4. The learned counsel for the parties agree that so far as the first question is concerned, it is not necessary to decide as it would be an academic question. 3. We have heard Shri Kejriwal, the learned counsel for the petitioner and Shri G.P. Kaushik, the learned counsel for the plaintiff-non-petitioner. 4. The learned counsel for the parties agree that so far as the first question is concerned, it is not necessary to decide as it would be an academic question. According to them, in the present case, after restoration of the suit, for whatever reason, the suit has been decreed exparte and the matter has arisen on the application for setting aside of the exparte decree. The question that has been framed relates to the matter as to whether the suit when dismissed on account of default of the parties or on account of non-prosecution or on account of want of evidence, can be considered to have been dismissed in default. So far the present case is concerned, the suit has already been restored and thereafter ex-parte decree has been passed, so we agree with the learned counsel for the parties that it would be an academic exercises we do not think it necessary to decide question No. 1. 5. Question No.2 is most material and difference of opinion has been noticed by the learned Single Judge in the authorities referred to in the referring order. Admittedly, in the present case after restoring the suit, no hearing of the suit was given to the defendant-petitioner and the proceedings continued exparte after restoration of the suit calumniating into the exparte decree so the question is, after restoration of the suit, was it necessary for the court to inform the defendant that the suit has been restored and without such notice, whether the court could proceed against the defendant. 6. Mr. Kejriwal, learned counsel for the petitioner submitted thatthe suit having been dismissed in default once, it was incumbent for the court to have issued notice of the hearing of the suit after restoration of the suit as the defendant cannot be deprived of his valuable right that he could join and participate in the proceedings despite the fact that exparte order has already been passed. So without notice of the hearing of the suit after restoration, the defendants right is seriously prejudiced. 7. In support of his contention, Shri Kejriwal placed reliance on a single Bench decision of Allahabad High Court in Mool Chand vs. Ganga Sahai(l). So without notice of the hearing of the suit after restoration, the defendants right is seriously prejudiced. 7. In support of his contention, Shri Kejriwal placed reliance on a single Bench decision of Allahabad High Court in Mool Chand vs. Ganga Sahai(l). It has been held in this case that when the suit is dismissed on account of absence of both the plaintiff and defendant and when the application for restoration is granted, it appears to be inequitable that the defendant should not have notice of the date fixed for hearing. It was further held that is such case, the defendant is of right entitled to notice of the hearing of the suit. 8. Reliance was further placed on a Single Bench decision of Nagpur High Court in Ramchandra Ramji Khatik & others vs. Sahadeo Gopal Koshti and others(2). In that case also, it was held that when the court restores a suit to file under O. 9 R.4 C.CPC without notice to the defendants and fixe another date for hearing of the case, the defendant must be given notice of the suit. Reliance was placed in this case on the aforesaid Allahabad decision. In this case, this fact has also appeared that the defendant had knowledge of the dismissal of the suit in default and thereafter he had no knowledge of restoration of the suit and the suit proceeded without any notice to him. The learned Single Judge observed that when the court restores a suit to file and fixes another date for the hearing of the case, it does not stand to reason that the defendants should not be given notice of the hearing of the suit. In fact, the defendants had no reasons to know that the restoration application had been made and allowed. They knew that the suit had been dismissed for default They could not anticipate that an application for restoration would be made and allowed. It was further observed that it is but equitable to hold that the Court should fix the case for hearing parties and give notice of the hearing to the other side. 9. Reliance has also been placed on a Single Bench decision of this Court in Labhuram vs. Kuberdan (3). It was further observed that it is but equitable to hold that the Court should fix the case for hearing parties and give notice of the hearing to the other side. 9. Reliance has also been placed on a Single Bench decision of this Court in Labhuram vs. Kuberdan (3). In that case after filing of the written statement, issues were framed and the case was posted for evidence and some evidence was led by the plaintiff but the case was adjourned for further evidence of the plaintiff to 17.03.1953. The it plaintiff and his counsel were not present on that day. The defendant was also absent. The suit was dismissed under O.IX r. 3 C.P.C. and an application for restoration was made on the same day. No notice was issued of the application to the defendant and the suit was restored. Thereafter on the Prayer of the defendant-petitioner, the court proceeded to record the evidence on the very day and his evidence was closed. Then on the next date, the suit was decreed against the defendant. When the defendant came to know of the decree, he submitted an application in the original suit stating therein that no notice had ever been issued to him, that an application for restoration have been filed or he was never informed that the suit had been restored and was to be proceeded with. Modi,J. relied on the aforesaid decision of the Allahabad and Nagpur High Courts (supra) and proceeded to consider the provisions of O.IX r.3 CCP. The words "and shall appoint a day for proceeding with the suit" in that provision came up for consideration and it was observed that these words should be given their due effect. The only proper way by which due effect may be given to them, would be that the defendant must get notice of the date fixed for the hearing of the suit. In that case admittedly, no notice was given and so the learned Single Judge observed that the procedure followed by the court was quite wrong and virtually amounted to an abuse of the process of the court. The learned Judge also referred some more case law laying down a general principle as to how the court is to act whereby injustice may not be caused. The learned Judge also referred some more case law laying down a general principle as to how the court is to act whereby injustice may not be caused. It was observed that when the inherent powers of the court are being invoked, the court is bound to take into consideration the facts and circumstances of the particular case. 10. Shri Kejriwal, vehemently urged that now it is well settled that even ex-parte proceedings are drawn against the defendant, the defendant has a right to join in the proceedings at any stage he likes. For this submission reliance has been placed on Sangram Singh v. Election Tribunal, Kota (4). Their Lordships of the Supreme Court observed as under :- "A Code of Procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, where ever that is reasonably possible, in the light of that principle." It was held in that case that the defendant had right to appear through counsel, and take part in the proceedings from the stage at which they had then reached. In para 37 their Lordships of the Supreme Court observed that the Court has a discretion which it must exercise. Its hands are not tied by the so-called ex-parte order, and if it thinks, they are tied by 0.9 r.7, then it is not exercising the discretion which the law says it should, in a given case interference may be called for. Its hands are not tied by the so-called ex-parte order, and if it thinks, they are tied by 0.9 r.7, then it is not exercising the discretion which the law says it should, in a given case interference may be called for. Instances of plaintiffs prejudice was considered by their Lordships, if the defendant is allowed to join at any subsequent stage after passing of the ex-parte order and the Rajasthan view expressed by a Division Bench of this Court in Sewaram vs. Mishrimal (5) was considered. 11. As against the aforesaid decisions, Shri Kaushik, the learned counsel for the plaintiff-non-petitioner placed reliance on Pirag Chand vs. Firm Ramlal Channumal (6). In that case, there were two defendants. Defendant No.l was the partnership firm and the defendant No.2 was alleged to be a partner of defendant No.l. Appearance was put in on behalf of both the defendants by one advocate and time was sought to file written statements by him on behalf of both the defendants. Further time was sought for inspection of account books. Thereafter, written statement was filed only on behalf of defendant No. 1 in which it was claimed that the defendant No.2 has nothing to do with the defendant firm and he has been wrongly joined as a party to this suit. It also appeared in that case, that the defendant No. 2 was advised by his counsel not to file a written statement, because, he was neither the owner of the defendant firm nor its partner so he has nothing to do with the dealings of the firm. His counsel therefore, pleaded no instructions and an ex parte order was drawn against the defendant No.2. The suit thereafter was transferred to the court of Additional District Judge No.l and after three years it was again transferred to the court of ADJ No.2 from the court of Addl. District Judge No.l. No notice of transfer was given to defendant No.2 and the suit was dismissed but it was restored back to its original number and was fixed for evidence of the plaintiff on 27.2.87. The question arose as to whether notice was necessary to the defendant after the case was transferred. An application for setting aside the ex parte order was made and it was prayed that he may be allowed to participate in the proceedings. The application for setting aside ex parte decree was dismissed. The question arose as to whether notice was necessary to the defendant after the case was transferred. An application for setting aside the ex parte order was made and it was prayed that he may be allowed to participate in the proceedings. The application for setting aside ex parte decree was dismissed. It may be mentioned that the learned Judge considered the facts of that case and in the light of the facts of that case, expressed the opinion that no ground was made out to set aside the ex-parte order passed after the expiry of 5 ½ years and the learned Judge proceeded on the basis that the defendant No.2 deliberately elected not to participate in the proceedings and he through his counsel pleaded no instruction in the suit. In the light of the facts and circumstances of that case, the learned Additional District Judge observed that no case is made out for setting aside the ex-parte order and this ground cannot be claimed in the circumstances of the case that notice was necessary to the defendant for restoration or after restoration. In the circumstances of that case, it was held that the defendant against whom a suit is already proceeding ex-parte, cannot claim any notice of the restoration or a notice of the subsequent date of hearing after the restoration is allowed. 12. Reliance has also been placed on a Single Bench decision of Babu vs. L.Dawan Singh and others (7). The learned Judge in that case took the view that when a suit is dismissed under o.9 r.3 C.P.C. and is restored under R.4, the latter rule does not lay down that before a suit is restored, a notice should be given to the defendant. A defendant is entitled to a notice only when the suit is dismissed in default under R.8 in his presence. Mool Chand vs. Ganga Sahai (supra) and Ramchandra Ramji Khatik & others vs. Sahadeo Gopala Kosti and others (supra) were distinguished on the basis that no ex-parte order was passed in these cases. Besides that it may be stated that in the Allahabad decision, this question has not been examined that after restoration, notice of the hearing of the suit is to be given to the defendant or not. What is laid down is that no notice for restoration is required to be given to the defendant. 13. Besides that it may be stated that in the Allahabad decision, this question has not been examined that after restoration, notice of the hearing of the suit is to be given to the defendant or not. What is laid down is that no notice for restoration is required to be given to the defendant. 13. It may be mentioned that in the cases cited by the learned counsel for the non-petitioner emphasis has been placed on the existing of an ex-parte order against the defendant. If there is an ex-parte order, till the ex-parte order is set aside, proceedings will continue ex-parte even after restoration of the suit. This aspect of the case in our opinion has not gone into consideration that in case the defendant has come to know about the dismissal of the suit and that he has no notice of restoration of the suit, he would not be in a position to join or participate in further proceedings of the suit. Besides this, we agree with the view taken by mody J. in Labhuram vs. Kuberdan (supra). It is implicit in the provisions of O.IX r.4 CPC that when the suit is restored and a date is fixed for hearing of the suit, then a notice of hearing of the suit should be given to the defendant else it would be a great injustice to the defendant and it would be most inequitable that the suit having been dismissed in default, after its restoration, it may be taken up ex parte. If the suit is dismissed in default after its restoration, the defendant has a right to join at any stage in the proceedings of the suit and that the defendant would be deprived of his right in case notice of the hearing is not given to the defendant after restoration of the suit. The view taken in the aforesaid decision of this Court by Modi J. appears to be correct for the reasons stated above. 14. The said view is in conformity with Allahabad (Mool Chand vs. Ganga Sahai) and Nagpur view ( Ramchandra Khatik vs. Sahadeo Khosti) and we have taken the above view having to the law laidown by their lordships of the Supreme Court in Sangram Singh vs. Election Tribunal, Kota (supra). 14. The said view is in conformity with Allahabad (Mool Chand vs. Ganga Sahai) and Nagpur view ( Ramchandra Khatik vs. Sahadeo Khosti) and we have taken the above view having to the law laidown by their lordships of the Supreme Court in Sangram Singh vs. Election Tribunal, Kota (supra). We are therefore, of the opinion that when the suit has been dismissed in default of both the parties and it has been restored back on the application of the plaintiff, without notice of the application to the defendant, a notice is necessary to the defendant after restoration for proceeding with the hearing. of the suit, although, there may be an ex-parte order passed against the defendant before dismissal of the suit in default of the parties. The question does not make any reference to the situation that there was an ex-parte order against the defendant. Even if there is no ex parte order against the defendant, the answer to the question would be that for proceeding in the suit after restoration, notice to the defendant is necessary. We accordingly answer question No.2 in the manner that notice to the defendant is necessary for proceeding with the suit after restoration. 15. The revision petition shall now go back for disposal in accordance with law.