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2003 DIGILAW 1022 (ALL)

Baikuntha Nath Gupta v. Janki Devi

2003-04-30

RAKESH TIWARI

body2003
JUDGMENT : Rakesh Tiwari, J. Heard the learned Counsel for the parties and perused the records. 2. Defendant-Petitioner has filed the present writ petition against the judgment and order dated 20.9.1999, passed by the District Judge, Varanasi, dismissing Misc. Civil Appeal No. 154 of 1999 arising out of the judgment dated 2.8.1999 passed by Civil Judge, Varanasi in Civil Misc. Case No. 122 of 1999 rejecting the restoration application of the Petitioner under Order IX, Rule 13, Code of CPC filed in Suit No. 203 of 1972, Chhangur Ram v. Kedar Nath, for setting aside the ex-parte decree dated 24.3.1999. 3. The case of the Petitioner is that Suit No. 203 of 1972 was filed for partition on 25.8.1972 by the father of Respondent Nos. 2 to 5, i.e., Chhangur Ram. The partition was sought in respect of House No. C.K.-64/121 in which the Plaintiff has claimed one-half share. It has been submitted by the counsel for the Petitioner that the statement and cross-examination of Plaintiff witnesses were going on. The Petitioner, who is a heart patient, was attending the case on each date. On 2.2.1999 he felt pain in chest and headache. He was carried to S.S.P.G. Hospital, where he was examined by Dr. S.A. Ansari who advised him to take complete bed rest. He states that the Plaintiff was cross-examined, but it could not be finished, hence the Court fixed 3.2.1999. Since he was ill, he could not attend on 3.2.1999. He submitted medical prescriptions of Hospital, medical certificate of the doctor, and medical examination reports in the trial court, which are unrebutted. They are not denied by the Plaintiff-Respondents and that both the courts below have failed to discuss these documents filing of which is not denied in the counter-affidavit. 4. Learned Counsel for the Petitioner has further submitted that no application has been filed or moved by the Plaintiff-Respondent for examination of the concerned doctor and as such ex-parte decree was wrongly passed. He also states that the lower appellate court has wrongly placed reliance on the case of Sudha Devi Vs. M.P. Narayanan and Others, AIR 1988 SC 1381 . In that case, the final evidence was given through affidavit for passing of decree, whereas the restoration application was decided on the basis of affidavit, as per amended Rule 9 of Order XIX, Code of CPC. M.P. Narayanan and Others, AIR 1988 SC 1381 . In that case, the final evidence was given through affidavit for passing of decree, whereas the restoration application was decided on the basis of affidavit, as per amended Rule 9 of Order XIX, Code of CPC. It is submitted that the previous conduct of a party should not be sole criteria in deciding restoration application and has placed reliance in Rajendra Prakash and Ors. v. Gauri Shankar and Ors. 1990 RD 505 (DB). It is also stated that under similar facts and circumstances, the Hon'ble Supreme Court in G.P. Srivastava Vs. Shri R.K. Raizada and Others, AIR 2000 SC 1221 , has held that for setting aside ex-parte degree within statutory period, the Courts have wide discretion and thus, expression must be construed as on clastic expression. Paragraphs 6 and 7 of the judgment are as under: 6. The trial court did not accept the pleas raised by the Appellant and found that the absence of the Appellant or his counsel in the Court on 10.3.1983 was not for a just and sufficient cause. The filing of the medical certificate was not disputed but the same was not relied on as it was found to have been obtained from a private doctor and not from a Government doctor. The High Court also did not accept the contentions of the Appellant and noticing his previous conduct rejected the revision petition refusing to set aside the ex-parte decree passed against him. 7. Under Order IX, Rule 13, Code of CPC an ex-parte decree passed against a Defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the Defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Unless sufficient cause is shown for non-appearance of the Defendant in the case on the date of hearing, the Court has no power to set aside an ex-parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13, Code of CPC has to be construed as an clastic expression for which no hard and fast guidelines can be prescribed. Sufficient cause for the purpose of Order IX, Rule 13, Code of CPC has to be construed as an clastic expression for which no hard and fast guidelines can be prescribed. The Courts have an wide discretion in deciding the sufficient cause keeping in view the particular facts and circumstances of each case. The "sufficient cause" for non-appearance refers on the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the Defendant on the date fixed for hearing when ex-parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the Defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. 5. In that case, a medical certificate of a private practitioner was filed. Sufficient cause for non-appearance held refers to the date on which the absence was made a ground for proceeding ex-parte. The Apex Court further held that it cannot be stretched to cover circumstances occurring prior to that date and he cannot be penalized for any previous negligence which has been overlooked and condoned earlier. 6. The case of the Respondents is that the suit was filed on 25.8.1972, which was decreed ex-parte, but thereafter restored in Misc. Case No. 48 of 1974. 7. An application was filed under Order IX, Rule 13, Code of CPC which was allowed on 27.5.1995, but the Defendant did not cross-examine P.W. 2. 8. The Plaintiff-Respondent filed Writ Petition No. 7673 of 1993 in which the Division Bench of this Court vide order dated 2.3.1998 directed the trial court to decide the suit within 16 months, which is as under: Heard counsel for the Petitioner. Petition is disposed of finally with the direction that Suit No. 203 of 1972 be decided by the Court concerned within 16 months of production of a certified copy of this order in accordance with law. Learned Counsel for the Petitioner states that there is no stay of proceedings by any Court. Dated: 2.3.1998 Sd. Petition is disposed of finally with the direction that Suit No. 203 of 1972 be decided by the Court concerned within 16 months of production of a certified copy of this order in accordance with law. Learned Counsel for the Petitioner states that there is no stay of proceedings by any Court. Dated: 2.3.1998 Sd. M. Katju Sd. A. Chakravarti. 9. Again P.W. 2 was not cross-examined and the evidence was closed by the Court on 20.1.1999. Again the cross-examination of P.W. 2 was closed on 3.2.1999 and thereafter ex-parte arguments were heard on 22.2.1999 and the suit was decreed ex-parte on third time on 24.3.1999. 10. Another application was moved by the Petitioner under Order IX, Rule 13, Code of CPC On 22.4.1999, which was dismissed by the trial court vide order dated 2.8.1999. An appeal was filed on 16.9.1999 to which the Defendant had filed objection. 11. The plea of the Plaintiff-Respondent in respect of earlier occasion when the ex-parte decree passed and had been set aside, cannot form basis to reject the restoration application of the Petitioner. As such the impugned orders are liable to be set aside. Both the parties are co-sharers, ends of justice would be met, if a time bound order is passed giving last opportunity to permit the Petitioner to appear and to give his statement and allow the Plaintiff-Respondent to cross-examine before the trial court. 12. From the facts stated above, it appears that despite the order of this Court, the Petitioner-Defendant adopted dilatory tactics. The case has been decreed ex-parte and then restored and is pending for the last 22 years. 13. From the conduct of the Petitioner, it is clear that non-appearance is deliberate. The litigation between the parties has to be decided expeditiously and cannot be kept pending. I, therefore, think that one more opportunity may be given to the Defendant. However, the trial court is directed to decide the case within three months from the date a certified copy of the order is produced before it by taking up the case on day-to-day basis. 14. I, therefore, think that one more opportunity may be given to the Defendant. However, the trial court is directed to decide the case within three months from the date a certified copy of the order is produced before it by taking up the case on day-to-day basis. 14. In view of the facts stated above, the writ petition is allowed and the impugned orders dated 2.8.1999 and 20.9.1999 and the ex-parte decree passed in Original Suit No. 203 of 1972 are quashed and the case is remanded back to the trial court to decide Suit No. 203 of 1972 expeditiously preferably within a period of three months from the date a certified copy of this order is produced before it by taking up the case on day-to-day basis. The interim order dated 11.11.2002 is vacated. No order as to costs.