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2000 DIGILAW 623 (KAR)

Shakuntala Gupta v. G. Saranappa

2000-09-05

T.N.VALLINAYAGAM

body2000
ORDER T.N. Vallinayagam, J.— It is one of the unfortunate cases where notwithstanding the absence of the Defendant and non-participation by him in the trial, the Trial Court has chosen to dismiss the suit for recovery of money based on goods sold and delivered under the provisions of Sale of goods Act. The Court has thought fit to proceed under Order 9, Rule 6(1)(a) of Code of Civil Procedure and declared the Defendant as ex parte. The Trial Court further referred to Section 2(9) which defines judgment and finds that the suit can be disposed of by passing an order under the provisions of Section 2(9). It also referred to Order 29, Rule 4(1) of Code of Civil Procedure which contemplates framing of points for determination and it is enough that such judgment of small cause contains such points alone. On point No. 1, the Court comes to the conclusion that the Plaintiff has proved that it has sold one colour TV to first Defendant on 2.2.1989 for Rs. 14,875/- on credit basis under the guarantee of Defendants 2 and 3. On the question of delay penalty of Rs. 200/- per month it declined to grant such a relief. On the question of limitation, the Court found that Ex.P.2 the suit document was dated 2.2.1989 and the suit has been filed on 30.3.1993. The Trial Court relied upon Article 14 of the Limitation Act and began to count the time for which period begins to run as date of delivery of goods. Though Ex.P.2 mentions about the payment of instalment, it was seen by the Court below that no particulars are given regarding the instalments. Referring to Articles 15 and 16 of the Limitation Act, the Court finds that Ex.P.3 was not proved. Notwithstanding that, it has been pleaded in the plaint that the last instalment was paid by the first Defendant on 17.8.1991, the Court held that it has not been proved. One fail to understand as to how such a plea can be held to be not proved. PW-1 has admitted that the Defendant has made payments of 22 instalments. When the Plaintiff himself says that towards the payment due, 21 instalments have been paid, there is no reason for the Court to disbelieve such a statement. It only evidences non-application of mine and improper appreciation of evidence on record. 2. PW-1 has admitted that the Defendant has made payments of 22 instalments. When the Plaintiff himself says that towards the payment due, 21 instalments have been paid, there is no reason for the Court to disbelieve such a statement. It only evidences non-application of mine and improper appreciation of evidence on record. 2. Learned Judge for dismissing the suit has relied upon the dictum reported in Syed Haisanulla and Others Vs. Ahmad Beig and Another, AIR 1988 Kant 93 . This dictum has been wrongly understood by the learned Judge. The above ruling mainly formulates how an ex parte judgment must be. Such ex parte judgments have been condemned by this Court on more than one occasion. The judgment as laid down by the Code of Civil Procedure though it might be an ex parte judgment, must contain a precise of the plaint and the points that arose for determination and it should also record the findings. It should also contain succinctly the summary of the discussion of the evidence and the effect of the document in the suit. Nothing of the sort has been done in this case. The Court should bear in mind that a heavy burden lies on the Court especially in matters where the Defendants are ex parte. The burden becomes much more onerous in ex parte matters. The court cannot blindly decree the suit on the ground that the Defendants are ex-parte. The above ruling does not contemplate a situation to dismiss the suit in fact when the Defendant appeared in that case and wanted to set aside the ex parte. The same was set aside, therefore this fact will not apply to the facts of this present case. 3. Reliance was placed upon the dictum of in Mahaboob v. Anjaneyulu, 1973 (2) Mys LJ 91 wherein it is held that Defendants absence would not absolve a Judge of his duty to apply his mind to the relevant allegations to arrive at a decision. That judgment also arise out of the challenge made by the Defendant in the Revision. In the unreported decision of this Court in Civil Revision Petition No. 1197 of 1965 disposed of on 21.2.1967, it is held that: The provisions of Order 20, Rule 4(1) Code of Civil Procedure must be read consistently with the provisions of Section 18 of the Mysore Small Cause Courts Act. In the unreported decision of this Court in Civil Revision Petition No. 1197 of 1965 disposed of on 21.2.1967, it is held that: The provisions of Order 20, Rule 4(1) Code of Civil Procedure must be read consistently with the provisions of Section 18 of the Mysore Small Cause Courts Act. This is the way in which the provision has been read in the several decisions that I have referred to above. Under Section 18 of the Small Cause Courts Act, the High Court has been invested with the powers to call for the records of the case for the purpose of satisfying itself that the decree or order made by the Court of Small Causes is in accordance with law. To enable the High Court to do so, it is necessary that the small cause Court should ordinarily support its decision by reasons so that the revisional Court as also the parties interested in the case may satisfy themselves that the decision is in accordance with law. It may be that in simple cases where the contest is not of a complicated character the provisions of Order 20, Rule 4(1) permit the decision being given without the reasons in support of the decision being set out. The test as to whether it is necessary for the Small Cause Court to set out the reasons for its decision is whether it is intelligible or not. It appears to be immaterial whether the question involved is one of fact or one of law. In either case the decision of the Small Cause Court must be intelligible on the face of it. In many cases it may be necessary that reasons should be set out in support of the decisions of the Small Cause Court. It must also be noted that ordinarily the decisions of a Court must be supported by reasons. Order 20, Rule 4(1) is only an exception. As mentioned already it does not say that the Small Cause Court shall not give reasons but only need not give reasons. It implies that ordinarily reasons should be given. In Dayalal Meghji Vs. It must also be noted that ordinarily the decisions of a Court must be supported by reasons. Order 20, Rule 4(1) is only an exception. As mentioned already it does not say that the Small Cause Court shall not give reasons but only need not give reasons. It implies that ordinarily reasons should be given. In Dayalal Meghji Vs. Repaka Venkayya, 1963 (1) Andhra Weekly Reports 111, speaks about that: The judgment of the Small Cause Court must be intelligible and must ex-facie convey that the judge had applied his mind thereto and that it must be such as to enable the superior Court exercising revisional powers to be satisfied that it was in accordance with law. A reference was made in that judgment. The observations of Reilly, J., in Goculdoss Jumnadoss and Co. and Another Vs. N.M. Sadasivier and Others, AIR 1928 Mad 1091 is to the following effect: But, when we are interpreting Rule 4 of Order 20, we ought not in my opinion to divorce that rule from general principles which are applicable to all Courts. It is a principle of our administration of Justice that Courts should conduct their work in public. The object of that is not that the Courts or the Judges sitting in them should be a show to the public, but that the public should be assured that decisions are not arbitrary. Now neither the public nor the parties concerned can be assured that decisions are not arbitrary, unless they are made intelligible to those who follow them an, where revisional powers are given to superior Courts, the records is made intelligible to those revisional Courts. And every conscientious Judge must wish to make his decision intelligible, not only out of consideration for the parties, whose rights and claims are laid before him for decision between them, but out of a sense of duty to the public, whose servant he is. Remembering that principle, is there anything against it in Rule 4 of Order 20 of the Code as it stands? I think, if we examine that rule, we shall find indication in it that the principle is to be maintained even in the judgments of Small Cause Courts. The rule does not provide that a Judge of a Small Cause Court can dispose of a suit by saying merely 'judgment for the Plaintiff' or 'judgment for the Defendant'. I think, if we examine that rule, we shall find indication in it that the principle is to be maintained even in the judgments of Small Cause Courts. The rule does not provide that a Judge of a Small Cause Court can dispose of a suit by saying merely 'judgment for the Plaintiff' or 'judgment for the Defendant'. It is laid down that his judgment must contain the points for determination and the decision thereon. What is the object of that? Obviously, to make his judgment intelligible to those who are interested in and to those who have to deal with it. And that fits in with Section 25 of the Provincial Small Cause Courts Act. Under that section the High Court is given the power of revising the decrees or orders of Small Causes Courts and it may call for the record of the proceedings of such a Court in order to satisfy itself that the decree or order made in any case is according to law... That provision is a strong indication to my mind that there is no intention that Small Cause Court Judges any more than other Judges should be allowed to deliver unintelligible judgments. 4. A reference was also made to the dictum of the Supreme Court in Sudha Devi Vs. M.P. Narayanan and Others, AIR 1988 SC 1381 , wherein the Supreme Court has considered the ex parte decree passed by the original side of the Court. That was a case where an ex parte decree was passed in favour of the Plaintiff and the Defendant failed to appeal against the decree which was ultimately the subject matter of the above case disposed of by the Supreme Court. The Supreme Court has considered whether evidence can be relied upon for the purpose of proving the pleading mentioned in the plaint and holding that the evidence are not included in the definition of evidence under Section 3 of the Evidence Act. But however, that can be used as evidence only for sufficient reason under Order 19, Rules 1 and 2. In that case also the Supreme Court found that the Plaintiff has chosen to examine some evidence in a case which is not relevant to the claim made. 5. Reference was also made by the Trial Court to a dictum reported in Special Land Acquisition Officer Vs. In that case also the Supreme Court found that the Plaintiff has chosen to examine some evidence in a case which is not relevant to the claim made. 5. Reference was also made by the Trial Court to a dictum reported in Special Land Acquisition Officer Vs. Gurappa Channabasappa Paramaj, AIR 1992 Kant 97, wherein the Division Bench of this Court has held that: The Court has not only the power but also the duty to consider as to whether Reference is time barred and therefore invalid. From Section 3(1) of the Limitation Act also, it is clear that it is the duty of the Court to decide whether the proceedings instituted before it was barred by time, even if plea of limitation is not taken by the opposite party. 6. Another decision of Pepsu High Court reported in Shankar Dass Vs. Sitaram Jawala Prasad, AIR 1956 Pepsu 83, has considered the power of a Court to dismiss a proceedings as time barred within the meaning of Section 3 of the Limitation Act in the following passage: It cannot be said as a general proposition that failure to dismiss a proceeding although time barred, always amounts to the exercise of a jurisdiction not vested in the Court of law. A Court having initial jurisdiction to entertain a proceedings has jurisdiction to decide the question of limitation as well. The Court may decide it rightly or wrongly, a wrong decision is not vitiated for want of jurisdiction. Hence the decision by the District Judge of the appeal instituted after the period of limitation prescribed by Section 16 of Pepsu Urban Rent Restriction Ordinance cannot be regarded as void for want of jurisdiction. The inadvertence of the District Judge to the point of limitation or his failure to make an order extending limitation does not oust the jurisdiction that he initially had. 7. There can be no difficulty to hold that Section 3(1) of the Limitation Act must be followed and applied in every case or in any proceeding before any Court of law. Section 3(1) reads as follows: Bar of limitation-Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Section 3(1) reads as follows: Bar of limitation-Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Therefore the primary duty of any Judge is to see whether the proceedings which comes for disposal before him satisfies Section 3(1) of the Act. 8. The second limitation placed upon the Court for disposal of a proceeding/case is found under Order 7, Rule 11 Code of Civil Procedure wherein Section 3(1) is also incorporated. Therefore, in my considered opinion, the Court has power whenever a proceeding comes before it and the Court is called upon to decide the same ex parte, reference must be made to Order 7, Rule 11 and if Order 7, Rule 11 is complied with, then the Court must pass decree instead of going through other facts which remain uncontroverted in the absence of the Defendant appearing before the Court and raising objections thereto. It is necessary to place on record the fact that Order 14, Rule (1) and (2) speaks about the framing of issues. Now framing of issues therefore arise only when the fact is denied by the other and not without any denial or objections. 9. Order 29, Rule 4(1) refers to judgment of small causes also speaks about framing of points for determination. This again presupposes the point while arise only when an allegation is made and such allegation is denied. Without the contradiction or denial, the question whether a particular factum is proved or not does not in opinion arise. 10. All the above rulings, referred or with reference to cases in which Defendant appeared, and question the ex parte decree putting forth his defence, have normally express the view that every person should be given a chance to expose his own cause and defend in a Court of law and applying the principle of audi alterum partem the Supreme Court had given a chance to the Defendant to defend the case. Incidentally, observance about the ex parte decree that was passed cannot in my opinion considered as the law laid down on the point. It is no doubt true that in certain Small Causes Court certain provisions have been made. Incidentally, observance about the ex parte decree that was passed cannot in my opinion considered as the law laid down on the point. It is no doubt true that in certain Small Causes Court certain provisions have been made. In fact, such a provision is now been incorporated in the code by virtue of the intended amendment of 1999. It is necessary to place on record that it is also available on record. Order 9, Rule 6 contemplates two types of circumstances. Order 9, Rule 6 reads as follows: 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: (a) When summons duly served-If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte; (b) When summons not duly served-If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the Defendant; (c) When summons served, but not in due time-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 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. Clause (a) contemplates that if the summons are duly served, the Court may make an order that the suit be heard ex-parte. If the summons are not served, then fresh summons be issued. Clause (a) contemplates that the Court may make an order that the suit be heard ex-parte. The evidence of the Plaintiff may be taken then and there and judgment may be pronounced as those under Order 8, Rule 5(2). Now without evidence, the Court may also pronounce judgment after February 1, 1977. Clause (a) contemplates that the Court may make an order that the suit be heard ex-parte. The evidence of the Plaintiff may be taken then and there and judgment may be pronounced as those under Order 8, Rule 5(2). Now without evidence, the Court may also pronounce judgment after February 1, 1977. Order 8, Rule 5(2) reads as follows: Where the Defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. 11. It is significant to note that under Order 8, Rule 10, the Court is called upon to pronounce the judgment against the Defendant. Order 8, Rule 10 reads as follows: Procedure when party fails to present written statement called for by Court.-Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. 12. So, considering the change in law by Act 104 of 1976, Order 8, Rule 10 must be borne in mind i) whenever the Defendant remains ex-parte, and the Court is satisfied that with all reading of the plaint does not call for any action under Order 7, Rule 11, a decree must follow and the Court is not entitled nor empowered to go into the facts of the case. Even on the question of limitation, as it is always held that limitation is the question of law and only the Court must take the allegation made in the plaint for the purpose of saving limitation and the Court cannot go into the reasonableness or unreasonableness of such allegation. Of course if prima facie the suit is barred by limitation and no explanation is forthcoming in the plaint to save limitation, then the Court can act under Order 7, Rule 11(d) read with Section 3(1) of the Limitation Act. Of course if prima facie the suit is barred by limitation and no explanation is forthcoming in the plaint to save limitation, then the Court can act under Order 7, Rule 11(d) read with Section 3(1) of the Limitation Act. It is the duty of the Court especially Small Causes Court to pass the decree the minute the Defendant is ex parte without going into other aspects of the case. 13. I find this has not been followed not only in the above case but also in number of cases disposed of by the subordinate judiciary. If this case admittedly 21 instalments have been paid and even if one instalment is not taken into consideration, the payment of other 20 instalment certainly saves limitation and the suit is filed within three years on the payment of the last instalment. Therefore, the question of limitation does not arise. The finding contra rendered by the Court below is therefore set aside and the suit is decreed with costs. In the result, this Civil Revision Petition is allowed with costs. 14. Office is directed to take copies of the judgment and circulate the same among subordinate Courts.