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2003 DIGILAW 513 (PNJ)

Baldev Singh v. Labh Singh

2003-04-08

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is directed against order dated 23.1.2002 allowing the application of the defendant-respondent filed under Order IX Rule 13 of the Code. The ex parte judgment and decree dated 15.12.1994 and the correction carried on 11.8.1994 have been set aside subject to payment of Rs. 1,000/- as costs. It has further been ordered that the main case would proceed further from the stage of filing of the written statement by the defendant-respondent. The principal reasons which weighed with the Civil Judge (Jr. Division), Patiala for allowing the application filed under Order IX Rule 13 of the Code are that; (a) the plaintiff-respondents have failed to furnish any affidavit in response to the reply to the application filed by the defendant-respondent rebutting his pleadings; (b) the averments made in the plaint i.e. in Civil Suit No. 4140 of 16.8.1993 by the plaintiff- petitioners are that the defendant-respondent dispossessed him in 1988 and the suit has been filed admittedly in 1993; (c) the copy of the plaint did not accompany the summons; and (d) the Process Server has not been examined by the plaintiff-petitioners to prove service of process. 2. Mr.Arun Palli, learned counsel for the plaintiff-petitioners has argued that a perusal of interlocutory order dated 7.12,1993 would show that the defendant-respondent was served on that date and the case was posted for hearing on 21.12.1993 for ex parte evidence of the plaintiff-petitioner. Thereafter, the case has been listed on four different dates but at no point of time the defendant-respondent had appeared. Learned counsel has also pointed out that the judgment and decree dated 15.2.1994 was eventually passed in favour of the plaintiff-petitioner and in order to get corrected some typographical and clerical mistakes in the aforementioned judgment and decree, an application was filed which was allowed on 11.8.1994 and even notice of that application was issued to the defendant-respondent. He has also made a reference to the statement of AW1 Hari Singh son of the defendant-respondent who has stated that he visited along with one Ram Asra to the Paiwari on 11.8.1994 where he acquired knowledge about the decree. According to the learned counsel, the whole version of the defendant-respondent as high-lighted in the impugned order would be exposed if the statement of Hari Singh AW 1 is takeninto consideration. According to the learned counsel, the whole version of the defendant-respondent as high-lighted in the impugned order would be exposed if the statement of Hari Singh AW 1 is takeninto consideration. 3. After hearing the learned counsel, I do not feel persuaded to take a view different than the one taken by the Civil Judge because the reasons given in support of the conclusion reached by the Civil Judge are full of force. Ordinarily, a person who is in possession of the suit land and is sought to be served, would not avoid service in a case of this nature because the suit could be effectively defended. Moreover, the other factors like non- examination of the Process Server, non-furnishing of the copy of the plaint with the summons and non-filing of the affidavit by the plaintiff-petitioners in support of the reply filed to the application of the defendant-respondent under Order IX Rule 13 of the Code are legally sustainable. It is well settled that the expression prevented by any sufficient cause from appearing" used in Order IX Rule 13 of the Code has to be liberally construed to "enable the Court to do complete Justice between the parties. Order IX Rule 13 of the Code reads as under :- "13. It is well settled that the expression prevented by any sufficient cause from appearing" used in Order IX Rule 13 of the Code has to be liberally construed to "enable the Court to do complete Justice between the parties. Order IX Rule 13 of the Code reads as under :- "13. Setting aside decree ex parte against defendant.- 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 minks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it 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 irregularly 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.]" 4. The provisions of Order IX Rule 13 of the Code came up for consideration of the Supreme Court in the case of G.P .Srivastaya v. R.K. Raizada and Ors., (2000)3 S.C.C. 54. Their Lordships of the Supreme Court opined for liberal construction of the aforementioned provisions and observed as under :- "Under Order 9 Rule 13 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. 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 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to 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 penalised 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. If the instant petition is examined in light of the principles enunciated by their Lordships of the Supreme Court in G.P. Srivastavas case (supra), then it becomes evident that there is sufficient cause preventing the defendant-respondent from appearing when the ex parte proceedings were undertaken on 7.12.1993. It is further evident that the relevant date for the purposes of deciding the absence of the defendant-respondent is 7.12.1993 when he was prevented from appearing in the Court, Therefore, the argument raised on behalf of the plaintiff-petitioner that the defendant-respondent failed to appear on subsequent dates would not merit acceptance. 6. It is further evident that the relevant date for the purposes of deciding the absence of the defendant-respondent is 7.12.1993 when he was prevented from appearing in the Court, Therefore, the argument raised on behalf of the plaintiff-petitioner that the defendant-respondent failed to appear on subsequent dates would not merit acceptance. 6. The other argument of learned counsel for the plaintiff-petitioners that the knowledge of the defendant-respondent should be presumed from 11.8.1994 and on that basis of the application filed on 13.12.1994 has to be considered beyond the period of 30 days provided by Article 123 of the Schedule appended to the Limitation Act, 1963 (for brevity, the Act)- The argument is based on the statement made by AW-1 Hari Singh who is son of the defendant- respondent. However, even this argument has failed to impress me because the averments made by the defendant-respondent in his application have not been effectively controverted by the plaintiff-petitioners by filing an affidavit in support of their reply. In the application the date of knowledge pleaded by the defendant-respondent is 11.12.1994 and the application has been filed on 13.12.1994 which is within a period of 30 days from the date of acquiring knowledge as is provided by Article 123 of the Schedule appended to the Act, Therefore, I do not find any force in the second submission of learned counsel for the plaintiff-petitioners. The revision petition is thus, without merit and is liable to be dismissed. For the reasons recorded above, this petition fails and the same is dismissed. However, it is made clear that any observation made in this order would not be treated as an expression of opinion on merits of the case.