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2001 DIGILAW 38 (PAT)

Sheopujan Pandey v. Baij Nath Rai

2001-01-15

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This Miscellaneous appeal has been filed by Sheopujan Pandey who was defendant no. 4 in Title Suit No. 184 of 1982 seeking annulment of the order passed in Misc. Case No. 2 of 1992 under Order IX Rule 13 C.P.C. 2. The appellants case before this Court is that the aforesaid title suit was not ready for hearing on 20th February 1989 when the trial court passed an order for ex-parte hearing, firstly, because by an order dated 15th April, 1983, the court had directed the plaintiff-respondent here to take steps for appointment of a guardian ad litem since the natural guardian failed to appear in spite of notice. The order dated 12th May 1983 (Annexure-3) also showed and the plaintiff was still directed to take steps for appointment of an Advocate as the guardian ad litem of defendant no. 13 of the suit. So the suit was not ready for ex parte hearing on 20th December, 1989. Moreover, the appellant (defendant no. 4 of the suit) had already filed written statement which was not accepted because he was directed to pay cost of Rs. 70/-(seventy) but this was not condition precedent to the acceptance of W. S. Moreover, the order dated 4th December, 1989 was not shown to the Advocate Sri Indradeo Singh who had filed W. S., rather it was shown to the appellants lawyer Sri Indrasen Rai who was in-charge of the suit earlier on behalf of appellant (defendant no. 4). Moreover, the appellant had deposited the cost to the Bar Association for expenses to be met over holding of Lok Adalat. So there was no occasion to reject the W. S. by order dated 20th December 1989 (Annexure-2 Series). So when the lower court adjourned the suit on 20th December 1989 for ex parte hearing, this order was illegal because the suit could not be fixed for ex parte hearing, when already there was W. S., even though it was rejected. On this ground, the appellant has challenged the order passed in Misc. Case No. 2 of 1992 which was preferred under Order IX Rule 13 C.P.C. 3. On this ground, the appellant has challenged the order passed in Misc. Case No. 2 of 1992 which was preferred under Order IX Rule 13 C.P.C. 3. So far the first ground taken in this appeai about the non-ripening of the suit for hearing, I find that this plea was not taken in the application put in under Order IX Rule 13 C.P.C. and this fact was conceded to by the appellants lawyer during the course of argument. Moreover, it is apparent and admitted that the court had directed the appellant-respondent to take steps for appointment of ad litem guardian as back in the year 1983. So perhaps there might have been compliance of this order and that is why this plea was not taken in the petition under Order IX Rule 13 C.P.C. So the impugned order passed on 30th May 1992 in Misc Case No. 2. of 1992 cannot legitimately be assailed on this plea. 4. So far the question whether the court was justified in placing the suit for ex-parte hearing by order dated 20th December, 1989, it transpires on perusai of the ordersheet dated 4th December 1989 and 20th December 1989 (Annexure-2 Series) that payment of cost of Rs. 70/- was of course a condition precedent for acceptance of W. S. filed by the appellant-defendant. The order-sheet dated 4th December, 1989 reads like this: "YADI PRATIBADI AGAMI THITHI KO KHARCHA NAHIN DENGE TO UCHIT ADESH PARIT KARDIYA JAYEGA." This sentence in the aforesaid order clearly indicates that payment of cost of Rs. 70/- was made a condition for acceptance of W. S. The order dated 20th December 1989 further reads in Hindi language: "PRATIBADI DWARA GAT ADESH KA PALAN NAHIN KIYA GAYA. ISKE ADHIVAKTA KO BHI SUCHIT KIYA JA CHUKA HAI. ISKE BAD BHI UTTER SHUNYA HI HAI. AISI PARISTHITI MEN PRATIBADI DWARA UTTAR- PATRA PRASTABIT KARNE KE LIYE ANISHCHIT KAL TAK LAMBIT RAKHNA NYAY SANGAT PRATIT NAHIN HOTA." The order-sheet of this day further shows that there was no step on behalf of appellant-defendant. In the aforesaid circumstance, the court rejected the W. S. of the appellant and ajourned the suit to 25th January 1990 for ex-parte hearing. In the aforesaid circumstance, the court rejected the W. S. of the appellant and ajourned the suit to 25th January 1990 for ex-parte hearing. It was contended before me that the order- sheet dated 4th December 1989 was shown to Sri Indrasan Rai and not to Sri Indradeo Singh, Advocate who had filed W. S. under a fresh Vakaltnama and so the plaintiff was not aware of order relating to cost. But this contention is neither here nor there because the pleading in Misc. Case No. 2/92 and before this Court also is that the appellant had paid the cost to the Bar Association. Admittedly, therefore, the appellant was very much aware of the order relating to cost. So far the payment of cost itself is concerned, neither any receipt was produced in the court below during the course of hearing of Misc. Case No. 2 of 1992, nor any witness was examined to prove this payment of cost to the Bar Association. So there was no evidence relating to this payment of cost. Moreover when the appellant was directed to pay cost to the plaintiff-respondent by order dated 4th December 1989 (Annexure-2), I do not think the payment into the Bar (for which there is no evidence), would amount to compliance of the Courts order. So the rejection of W. S. by order dated 20th December 1989 was perfectly valid. 5 Now the next question for consideration is whether the court was justified in placing the suit for ex parte hearing on 20th December 1989. In this connection it was submitted before me that the Court should have fixed the suit for hearing instead of its ex-parte hearing, even though the W. S. was rejected. In this connection I am of the opinion that, of course, acceptance or rejection of a W. S. is irrelevant for placing the suit for ex- parte hearing. A suit is heard ex-parte in the absence of the contesting party. On 20th December, 1989, the order for rejection of W. S. was passed and on this day there was no step on behalf of appellant- defendant. A suit is heard ex-parte in the absence of the contesting party. On 20th December, 1989, the order for rejection of W. S. was passed and on this day there was no step on behalf of appellant- defendant. However, the court should, of course, have adjourned the suit for hearing instead of ex-parte hearing because still there was chance for the defendant- appellant to appear on the next date and contest the suit even without any W. S. However, the order-sheet dated 20th December 1989 shows that the Court did not right away "started hearing the suit ex-parte" rather it adjourned the suit to 25th January 1990. There was no pleading before the lower court in Misc. Case No. 2 of 1992 nor there is any case before this Court that the appellant-defendant appeared on any subsequent date to which the suit was adjourned for ex-parte hearing and so if the suit was heard ex-parte after 20th December 1989, any irregularity attaching to the order dated 20th December 1989 got regularised and validated. So far ex-parte hearing is concerned, the appellant defendant failed to appear personally or through his lawyer to contest the suit on dates to which the suit was adjourned for ex-parte hearing. 6. A third plea was raised before this Court that the suit was transferred from one court to the other and the appellant was not aware of this transfer and so also he was prevented from contesting the suit. In this connection I am of the opinion that if such a party appears in a suit, no fresh notice is to be issued from each and every transferee court. Notice of transfer is sent to the Bar and it is presumed that the parties have notice of the transfer. Moreover, the circumstances of the case indicate that the appellant- defendant was aware of the ex-parte hearing of the suit because he filed the Misc. Case under Order IX Rule 13 C. P.C. within time. So this ground taken by the appellant also will not entitle him to seek abrogation of the order dated 16th April, 1993. Moreover, the circumstances of the case indicate that the appellant- defendant was aware of the ex-parte hearing of the suit because he filed the Misc. Case under Order IX Rule 13 C. P.C. within time. So this ground taken by the appellant also will not entitle him to seek abrogation of the order dated 16th April, 1993. So far the change of Advocate is concerned, it is in Memorandum of appeal itself that earlier Sri Indrasan Rai was the Advocate appointed by the appellant to conduct the suit but he filed W. S. through Sri Indradeo Singh under proper Vakalatnama of Sri Indradeo Singh as also a Junior Lawyer Sri Kamla Kant Prasad Singh. Sri Indradeo Singh died and then Sri Indrasan Rai was again engaged to conduct the proceedings of Misc. Case No. 2 of 1992. From the aforesaid averments in the memo of appeal it is further apparent that besides Sri Indradeo Singh, there was one Sri Kamla Kant Prasad Singh also engaged on behalf of appellant in the lower court. So any of the lawyers of the appellants had full opportunity to appear when the suit was being heard ex-parte and participated in the hearing. 7. The aforesaid over all circumstances would indicate that the appellant was deliberately and intentionally avoiding the suit just to step in and prevent the conclusion of the suit by means one or the other and Misc. Case No. 2 of 1992 was a step in this direction. So when the lower court dismissed the Misc. application preferred under Order IX Rule 13 C.P.C., I do not think the Court passed any erroneous order either on material facts or on any legal aspect of the case. 8. In the result, I do not think this appeal has got any merit. It is accordingly dismissed.