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Madhya Pradesh High Court · body

1999 DIGILAW 434 (MP)

Purushottamlal v. Nagar Palika Parishad, Mandla

1999-07-01

S.C.PANDEY

body1999
JUDGMENT This is an appeal under Order 43 Rule I (d) of the Code of Civil Procedure against the order dated 17.12.98, refusing to set aside the ex parte decree, passed by the District Judge, Mandla, in MJC No. 22/96. It appears, that by judgment and decree dated 25.7.96, the suit of the respondent was decreed ex parte against the appellant. The order sheet disclosed that on 10.7.96 the appellant or his counsel did not appear before the Court and the evidence of the respondent was partly recorded and, thereafter, the case was adjourned to 15.7.96 for examination of remaining witnesses of the respondent. On 16.7.96, the case was closed by the respondent without examining any witness. However, the appellant remained ex parte on that date. Then on 17.7.96 ex parte arguments were heard and on 25.7.96 ex parte decree was passed against the appellant for recovery of an amount of Rupees 61,044/- with interest at the rate of Rs. 6% per annum from 8.7.93. The appellant, thereafter, filed an application under Order 9 Rule 13 of the Code of Civil Procedure on 1.8.96 alongwith certain affidavits in support thereof. This application was registered as MJC No. 22/96 and it was dismissed on 17.12.98 by the impugned order. Having heard the learned counsel for the parties and after going through the record of the case, it is found that the application under Order 9 Rule 13 of the Code of Civil Procedure was in respect of non-appearance of the appellant in Court, which was supported by an affidavit of the appellant as well as that of the clerk of the counsel. These two affidavits asserted that on 25.7.96, Shri S.N. Bajpai, counsel for the appellant was in jail. Thereafter, in evidence, the appellant asserted that he was not appearing in the Court as his counsel was appearing. Thereafter, subsequently, he came to know that his case was dismissed. The evidence of Rajendra Prajapati, the clerk of Shri S.N. Bajpai, Advocate, stated that Shri Bajpai was in jail and, therefore, the case proceeded ex parte against the appellant as nobody appeared on his behalf. The counsel was in judicial custody prior to 9.7.96 and he had informed a relative of the appellant that the case was dismissed on 9.7.96. The evidence of Rajendra Prajapati, the clerk of Shri S.N. Bajpai, Advocate, stated that Shri Bajpai was in jail and, therefore, the case proceeded ex parte against the appellant as nobody appeared on his behalf. The counsel was in judicial custody prior to 9.7.96 and he had informed a relative of the appellant that the case was dismissed on 9.7.96. Looking to the facts and circumstances of the case, when the appellant was not appearing and his counsel asked him not to appear in the Court unless and until required by him, the counsel could not have appeared on 10.7.96 onwards, if he was in jail. According to the evidence of Rajendra Prajapati, the counsel for the appellant remained in jail for about 10 to 20 days. Therefore, it is reasonable to infer that the case of the appellant was not properly conducted on account of the absence of the main counsel Shri Bajpai. Looking to the facts and circumstances of the case, this Court is of the opinion that a liberal construction should have been given to the words "sufficient cause" mentioned in Order 9 Rule 13 of the Code of Civil Procedure. The Court below has considered certain aspects of the matter which are not germane to correct conclusion in the case and it has been too strict in respect of the matter. There is an affidavit of Shri S.N. Bajpai, Advocate on record that he was in jail from 25th May, 96 upto 15th July, 96. There is no reason to disbelieve the affidavit of Shri Bajpai. This could also be a matter of record in the criminal case in which Mr. Bajpai was arrested. The learned Judge has not disbelieved the assertion of Shri S.N. Bajpai, Advocate that he was in jail between 25.5.96 to 25.7.96. Looking to the fact that throughout the period between 2.7.96 to 25.7.96 the counsel for the appellant was in jail, there is no reason to hold that there was not sufficient cause for non-appearance of the appellant. Accordingly, the application under Order 9 Rule 13 of the Code of Civil Procedure is allowed, and the impugned order 17.12.98 is hereby set aside. Accordingly, the application under Order 9 Rule 13 of the Code of Civil Procedure is allowed, and the impugned order 17.12.98 is hereby set aside. Civil Suit No. 4B of 1993 is remanded back to the Court below with a direction that both the parties shall be given opportunity to lead evidence in support of their respective cases and the Court below shall decide the case thereafter, in accordance with law, within a period of six months from today. It is further directed that both the parties shall appear before the trial Court on 19th of July, 1999. This appeal stands allowed accordingly, with no order as to costs.