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2003 DIGILAW 299 (MP)

Jahur Bi v. Altaf Hussain

2003-02-19

S.K.KULSHRESTHA

body2003
JUDGMENT This appeal has been filed under order 43 rule 1 (d) of the CPC. against the order dated 12th July, 2002 of the 10th ADJ, Bhopal in MJC No. 15/2001 by which learned Judge has rejected the application of the appellant under order 9 rule 13 of the CPC as also the application under section 5 of the Limitation Act. The respondent had filed the civil suit No. 116-A/2000 before the Add!. Dist. Judge, Bhopal against the appellants for possession and mesne profits in which 18.1.2001 was fixed for defendant's evidence. Since the defendants (appellants) did not appear nor their counsel appeared on that date, the case was proceeded ex-parte and on 1.2.2001 the judgment was pronounced. On learning about the ex-parte decree the appellants filed the application under order 9 rule 13 of the CPC on 18.4.200 I and later. on 28.9.2001, an application was filed under section 5 of the Limitation Act to seek condo-nation of delay in filing the application under order 9 rule 13. Both these applications have been disposed by the trial Court by the impugned order. Learned counsel for the appellant has submitted that the appellant Abdul Aziz was 80 years old and an infirm person under medical treatment and it was not possible for him to keep himself abreast of the proceedings and he was therefore dependant on his counsel and other relations. He has further submitted that the appellant had engaged Shri Vijay Gupta, Advocate but Shri Vijay Gupta expired and thereafter the matter was not properly handled by the other advocates who appeared from his office with the result the appellant suffered an ex-parte decree and therefore the judgment and decree passed ex-parte deserve to be set aside. Reference has also been made to the decision of the Supreme Court in Raymond Services Pvt. Ltd. v. S. Kapoor [AIR 2001, Supreme Court 207]. Learned counsel for the respondents, per-contra, has submitted that there was no cause, much less sufficient, for setting aside the ex-parte decree. The evidence on record indicates that the defendants were aware of the proceedings in the case and therefore it was on account of their willful abstinence that the case proceeded ex-parte against them and no case was made out for setting aside the ex-parte decree. The evidence on record indicates that the defendants were aware of the proceedings in the case and therefore it was on account of their willful abstinence that the case proceeded ex-parte against them and no case was made out for setting aside the ex-parte decree. The short question that arises for consideration in this appeal is as to whether there was sufficient cause for setting aside the ex-parte decree passed by the Trial Court on 1.2.2001 in the civil suit. The grounds urged by the appellants for setting aside the ex-parte decree are -(A) That, the appellant Abdul Aziz is 80 years old and is an infirm person unable to himself to manage his affairs; (B) That, Abdul Aziz was under treatment and therefore prevented from attending the proceedings of the case. (C) That, Advocate Shri V. Gupta who had been engaged in the case had expired during the pendency of the suit. (D) That the junior advocates of the Advocate Shri Vijay Gupta, after the death of Shri V. Gupta had informed them that the matter was pending in the High Court and it was not necessary for them to attend the hearing of the case. The applicant Abdul Aziz examined himself and also examined Abdul Azim, Ifketar Ahmed, Mukteyaruddin, Abdul Aziz, Dr. RK. Bhargav and Dr. RK. Jain to prove the case of the appellants while non-applicants examined 2 witnesses in rebuttal. It has not been disputed that age of Abdul Aziz is about 80 years and it has also come in evidence that he was under treatment of Dr. RK. Bhargav (A W-6) and Dr. RK. Jain (A W-7) Dr. R.K. Bhargav has deposed that Abdul Aziz was a patient of hyper-tension and he had suffered a heart attack and was suffering from pain in the joints. He has also exhibited the certificates issued by him in this behalf. Dr. RK. Jain, eye-specialist, has referred to the Diabetic Retino Pathy of Abdul Aziz and exhibited his certificate P-36. Therefore, there is no room for doubt that Abdul Aziz being old and infirm was unable to look after his affairs himself and had to depend on others. A W -2 Abdul Arif has stated that Shri Vijay Gupta was their counsel but he expired in the year 1999 and therefore his son Shri Ajay Gupta started looking after their case. A W -2 Abdul Arif has stated that Shri Vijay Gupta was their counsel but he expired in the year 1999 and therefore his son Shri Ajay Gupta started looking after their case. Whenever he enquired about the case, Shri Ajay Gupta informed him that the matter was in the High Court. It was only when he learnt from Mukteyaruddin and Ifketar Naqvi that there was an ex parte decree that he took steps for obtaining certificate copy and filed the application under order 9 rule 13. Ifketar Ahmed and Mukteyaruddin corroborate the version of Abdul Arif. A W 5 Abdul Azim has also stated that whenever Shri Vijay Gupta was approached, he stated that the matter was in the 'High Court and it was not necessary for them to contact him till the pendency of the matter in the High Court. He has also stated that on learning from Ifketar and M. Hussain that matter was decided ex parte steps were taken by them. . While, as contended by the learned counsel for the respondents, it is true that Abdul Arif was taking prominent part in the case for 17 years, ~here is nothing to disbelieve Abdul Arif on the point that whenever he approached his counsel Shri Vijay Gupta he was informed that he need not approach the counsel in connection with the matter pending in the Trial Court as the matter was pending in the High Court. Same is the statement of A W 5 Abdul Azim. There is no suggestion that there was ever any default on the part of the appellant in appearance in the case during its long pendency before the Trial Court and since the defendants were diligently participating and contesting the case, there does not appear any reason to disbelieve that it was on account of the legal advice that it was not necessary for them to appear as the matter was pending in the High Court that the defendants had not appeared. The application for setting aside the ex parte decree has been filed on 18.4.2001. The application under section 5 of the Limitation Act has been filed on 28.9.2001. The application for setting aside the ex parte decree has been filed on 18.4.2001. The application under section 5 of the Limitation Act has been filed on 28.9.2001. The contention of the appellants is that they acquired knowledge with regard to the ex parte decree on 9.4.2001 from Ifketar Ahmed and Mukteyaruddin and immediately thereafter steps were taken to obtain the certified copy and to file the application under order 9 rule 13. Evidence has been led to substantiate the above contention. In view of the fact that delay has been satisfactorily explained, the same deserves to be condoned in the interest of justice. Accordingly, the delay in filing the application under order 9 rule 13 is condoned. Since there was sufficient cause for the absence of the appellants (defendants) on 18.1.2001 in the case, the order to proceed the ex parte and the ex parte judgment and decree passed against them deserve to be set aside. Accordingly, the judgment and decree dated 1.2.2001 are both set aside and consequently the order dated 18.1.2001, directing to proceed ex parte against the defendant is also set aside subject to the payment of cost of Rs. 3000/- by the defendants to the plaintiffs. The parties are directed to appear before the trial Court on 31st March, 2003. On that date, the defendant shall pay cost to the plaintiff Jailing which the ex parte decree shall stand. There shall be no order as to the cost of this appeal.