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2000 DIGILAW 589 (PNJ)

State of Punjab v. Amrit Lal Chopra

2000-05-29

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J - State of Punjab has filed the present Civil Revision and it has been directed against the judgment dated 21.8.1989, passed by the learned District Judge, Hoshiarpur, who dismissed the appeal of the State against the order dated 1.12.1988 passed by the Court of Senior Sub Judge, Hoshiarpur, who declined the application of the State under Order 9 Rule 13 C.P.C. for setting aside the ex parte judgment and decree dated 21.2.1987 passed in Civil Suit No. 309 of 1.9.1986, titled Amrit Lal Chopra v. Secretary, Punjab Government, Food & Supplies Department. 2. It was pleaded by the State that suit titled Amrit Lal Chopra v. Secretary, Punjab Government, Food & Supplied Department was decreed ex parte on 21.2.1987. The State was prevented by sufficient cause from appearing in the Court. The officials of the Department were instrumental in not bringing to the notice of the competent officers of the Department, the date fixed for filing the written statement. The Department had already initiated disciplinary action against the delinquent official and he has already been placed under suspension. It was further pleaded that decree dated 21.2.1987 is against the law and facts. The Punjab State was a necessary party but it has not been impleaded and as such the suit of the plaintiff was bad for non- joinder of necessary parties and the decree has been passed by the trial Court on conjectures and surmises. The ex parte decree has caused miscarriage of justice and the pay of the plaintiff has been wrongly fixed. 3. The application was contested by the plaintiff-respondent who pleaded that the application was barred by limitation. The State was served on 14.10.1986. Ex parte proceedings were ordered against the Department on 7.11.1986. After the decision of the case the plaintiff sent the copy of the judgment to the Secretary along with the application for releasing the increments. The Department released the increment to the plaintiff on 15.9.1987. The second increment was released on 26.11.1987. However, the third increment was not released. It was further pleaded by the respondent that the ex parte decree should not be set aside after a lapse of 15 months. 4. From the pleadings of the parties the trial Court framed the following issues :- 1. Whether there are sufficient grounds to set aside ex parte decree dated 21.2.1987 ? OPA 2. It was further pleaded by the respondent that the ex parte decree should not be set aside after a lapse of 15 months. 4. From the pleadings of the parties the trial Court framed the following issues :- 1. Whether there are sufficient grounds to set aside ex parte decree dated 21.2.1987 ? OPA 2. Whether the application is barred by time ? OPR 3. Whether the application is not maintainable ? OPR 4. Relief. 5. Issues No. 1 and 2 were decided against the State. Issue No. 3 was not pressed and finally the application under Order 9 Rule 13 C.P.C. filed by the State, was dismissed vide order dated 1.12.1988. 6. Aggrieved by the said order, the State filed the appeal before the Court of learned District Judge, Hoshiarpur who for the reasons given in para No. 6 of the order dated 21.8.1989, dismissed the appeal also and in this manner, the present revision has been filed by the State. 7. I have heard Mrs. S.K. Bhatia, DAG, Punjab, appearing on behalf of the petitioner and Shri Manohar Dadwal, Advocate, appearing on behalf of the respondent and with their assistance have gone through the record of the case. 8. Before I deal with the submissions raised by the learned counsel for the parties, it will be appropriate for me to reproduce para No. 6 of the impugned order passed by the District Judge, Hoshiarpur, which is reproduced as under :- "6. To prove sufficient ground taken by the applicant/appellant Shri Brij Mohan Nanda was examined as A.W.1. A careful perusal of his statement shows that in cross-examination it was admitted by him that the Department was served on 14.10.1986 and ex parte judgment/decree was passed by the then Senior Sub Judge on 21.2.1987 It was also admitted that Shri Amrit Lal Chopra had sent copy of the judgment alongwith application to the Department for release on three increments and the Director Food and Supplies and the Special Secretary to Government, Punjab released the first increment on 15.9.1987 vide letter Ex.R.1 and that second increment was released on 26.11.1987 vide Ex.R.2. It is further stated that third increment was not released as Shri Chopra was not entitled to it. It is further stated that third increment was not released as Shri Chopra was not entitled to it. It was, however, stated by shri Brij Mohan Nanda, A.W.1 that when the increments were released by the competent authority, the case filed by Amrit Lal Chopra was not in his knowledge. It was also admitted by Shri Nanda that application for setting aside ex parte judgment and decree was made by the Department on 15.10.1988 i.e. after the lapse of one year and three months. It was argued by the learned Government Pleader that ex parte proceedings were started against the Punjab State as Shri K.G. Sharma was negligent in pursuing the case. He neither attended the Court himself nor he even deputed any other official working under him to attend the Court and on account of that negligence of Shri K.G. Sharma, he was also suspended and enquiry was initiated against him which is still pending. I am of the view that this contention of the learned Government Pleader is not of any help to the appellant. If the defendant does not pursue the case diligently or was negligent in pursuing the same, that cannot be taken as a sufficient ground to set aside an ex parte decree. It was pleaded in the application that defendant was prevented by sufficient cause from appearing in the Court, but in support of the plea no evidence is available on the record of the trial Court. Therefore, I am of the view that in the circumstances of the case, the learned Senior Sub Judge was very much right in dismissing the application under Order 9 Rule 13 C.P.C. Admittedly, the application for setting aside ex parte judgment and decree was filed after a lapse of one year and three months. No application for condonation of delay was filed. The application under Order 9 Rule 13 C.P.C. being hopelessly time barred, deserved to be dismissed and that has rightly been dismissed. I do not find any ground to interfere with the impugned order. The appeal being without any merit, is dismissed. No order as to costs. File be consigned." 9. Learned counsel appearing on behalf of the petitioner submitted that there was no wilful or intentional default on the part of the State when it did not appear before the trial Court on 7.11.1986. Mrs. The appeal being without any merit, is dismissed. No order as to costs. File be consigned." 9. Learned counsel appearing on behalf of the petitioner submitted that there was no wilful or intentional default on the part of the State when it did not appear before the trial Court on 7.11.1986. Mrs. Bhatia also submitted that the the State Government in a right earnest had taken the disciplinary action against the delinquent official and so much so he has been placed under suspension. The chance should be given to the State to defend the suit. She further stated that liberal interpretation should be given to the term "sufficient cause" and it is not obligatory upon the State to explain the delay of each and every day in making the application under Order 9 Rule 13 C.P.C. 10. On the contrary, it was submitted by the counsel for the respondent that there was hardly any sufficient cause for setting aside the ex parte decree. Moreover, the application which was moved by the State was hopelessly barred by limitation. Order 9 Rule 13 C.P.C. lays down as follows :- "13. Setting aside decree ex parte against defendant. - (1) 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 is cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants 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 plaintiffs claim. Explanation :- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed o on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. (2) The provision of Section 5 of the Indian Limitation Act, 1908, shall, apply to the application under sub-rule (1)". 11. The reading of the above would show that the ex-parte decree can only be set aside if it is shown that defendant was prevented for any sufficient cause. In this case, the Department was saved on 14.10.1986. The next date of hearing was 7.11.1986. Nobody appeared on behalf of the State before the trial Court, as a result of which, the department was proceeded ex parte. The ex- parte evidence was led by the plaintiff, as a result of which, an ex parte decree was pased on 21.2.1987. So much so, even after passing of the ex parte decree the plaintiff sent the copy of the certified copy of the judgment along with an application to the State praying that he may be allowed three increments which were granted by the trial Court. In spite of the fact that it was brought to the notice of the defendant that an ex parte decree has been passed for the release of three increments, no action has been taken by the respondent-authority for getting the ex parte decree set aside, Rather the conduct of the Government was very astonishing. The Government complied with the decree and released the first increment to the plaintiff on 15.9.1987. The second increment was also released on 26.11.1987 and in this regard reference can be made to the documents Ex. R-1 and R-2. It was at the stage of third increment that the State rose from slumber and it was not released to the petitioner on the ground that he was not entitled. Shri Brij Mohan AW1 had to admit before the trial Court that the State filed the application for setting aside the ex parte judgment and decree on 10.5.1988 i.e. after a period of 15 months. It is true that the State Government had taken action against the negligent official but the plaintiff cannot be allowed to suffer. It is not proved on the record that plaintiff had ever connived with Mr. It is true that the State Government had taken action against the negligent official but the plaintiff cannot be allowed to suffer. It is not proved on the record that plaintiff had ever connived with Mr. K.G. Sharma in procuring the ex parte decree. There is a culpable delay on the part of the State Government when it did not file the application for setting aside the ex parte decree for 15 months. What was sufficient cause, will always be a question of fact. 12. No doubt, as per the latest trend of the Hon ble Supreme Court, a liberal interpretation should be given to the term "sufficient cause" but State cannot take the benefit of its serious lapses solely on the ground that it is a State. There is no special law of limitation for the State. This case has to be viewed from another angle. The decree was passed as back as on 21.2.1987. Moreover, 13 years have elapsed. At this juncture to set aside the ex parte decree, would be a mockery of law especially when the plaintiff was not to be blamed. Setting aside ex parte decree, at this stage, would further drag the plaintiff at least for 10 years to get a possible relief. Endless miseries cannot be allowed to brought for the plaintiff who is already craving for his relief of three increments. The State has already granted two increments to the plaintiff. 13. The learned counsel for the respondent relied upon 1999(4) RCR (Civil) 182, Gurdev Singh v. Harchand Singh. The ratio of this judgment can be partly applied for the benefit of the plaintiff because this Court declined to set aside the ex parte decree after a period of 14 years when the judgment-debtor was to be blamed. In the present case, there was due service of the State on 14.10.1986. The State had enough time to give instructions to the Government Pleader to appear on behalf of the State. When there was a due service on behalf of the State, it was obligatory upon the State to file the application within 30 days from the date of the passing of the decree. In the present case, the application has been moved after 15 months. When there was a due service on behalf of the State, it was obligatory upon the State to file the application within 30 days from the date of the passing of the decree. In the present case, the application has been moved after 15 months. Counsel for the respondent also relied upon 1997(4) R.C.R. (Civil) 301, Ram Narain Singh v. Gurinder Kaur, wherein, it was held that when a litigant is negligent and is not bothered about his rights, for such a litigant, the law cannot come to its rescue because law always helps a vigilant litigant. The counsel for the respondent also relied upon 2000(1) RCR (Civil) 465, M/s Naimat Kaur Anand v. M/s Decon Company. The ratio of this judgment is also helpful to me in order to determine the negligence which has been committed on behalf of the State authority. 14. Resultantly, I do not see any illegality or impropriety in the impugned order dated 21.8.1989. There is no merit in this revision which is hereby dismissed with no order as to costs. Revision dismissed.