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Madhya Pradesh High Court · body

2005 DIGILAW 69 (MP)

Anil v. Somita Tar Product

2005-01-12

N.K.MODY

body2005
ORDER 1. Being aggrieved by the Order dated 27.3.2004 passed by 10th Additional Disctict Judge, Bhopal, in MJC No. 3/03, whereby 'the application filed under Order 9 Rule 13, CPC, for setting aside ex parte judgment and decree dated 21.7.96 passed in CS No. 1B/92 has been dismissed, the present appeal has been filed. 2. Short facts of the case are that respondent No.1 filed a suit against respondents No.2, 3 and also against the appellant for realization of Rs. 2,99,491=50 paise. Respondent No.2 is the company, and appellant and respondent No.3 were the employees of the company at the relevant time. The case was proceeded ex parte on 14.11.1995, as the counsel for respondent No.2 pleaded no instructions in the matter and ultimately on 31.7.1996, a decree was passed against respondents No.2, 3 and appellant. 3. On 24.1.2002, the appellant moved an application under order IX Rule 13, CPC, alleging that on 14.1.2002 the brother of the appellant came to know that the Court has issued to warrant for attachment of the property of the appellant. Thereafter, upon enquiry, the appellant came to know that an ex-parte decree has been passed in favour of respondent No.1 and against respondent No.2 alongwith the appellant and respondent No.3. It was alleged that the appellant was working as Managing Director of respondent No.2 Company, from where he has resigned with effect from 30.9.1989 which was duly accepted by respondent No.2 Company on that very day. It was further submitted that the appellant was not liable for any amount because the appellant• was the employee of the company. It was further submitted that it was the respondent No.2 Company who engaged a lawyer who was appearing on behalf of respondent No.2 and since appellant and respondent No.3 were also the party, therefore, the same advocate was watching the interests of appellant and respondent No.2 Company. 4. Learned counsel for the appellant; further submits that learned trial Court was very much impressed that after making the appearance in the civil suit by the appellant. the case was proceeded ex parte and the application for setting aside the ex parte decree was filed after a lapse of four years. Learned counsel further submits that Court below has not at all taken into consideration that the appellant was impleaded party to the suit because the appellant was employee of respondent No.2. the case was proceeded ex parte and the application for setting aside the ex parte decree was filed after a lapse of four years. Learned counsel further submits that Court below has not at all taken into consideration that the appellant was impleaded party to the suit because the appellant was employee of respondent No.2. Appellant has no interest in the properties of respondent No.2. He further submits that since the appellant resigned from the service of respondent No.2, therefore, appellant could not appear before the Court below because there was no personal case against the appellant. Learned counsel further submits that the learned counsel who was appearing on behalf of respondent No.2 Company also committed negligence in pleading no instructions without contacting the appellant as the counsel was also watching the interest of the appellant. Reliance was placed on (2000) 3 SCC 54 [G.P Shrivastava v. R.K. Raizada & others), wherein the Hon'ble Supreme Court has observed that 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 0 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 circumstance 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. It was also observed by the Hon'ble apex Court that even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the trial court. 5. It was also observed by the Hon'ble apex Court that even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the trial court. 5. Learned counsel further placed reliance on a decision reported in 1906 JLJ 436 = AIR 1996 MP 243 [Smt. Benibai v. Smt. Champai} wherein this Court has taken the view that the counsel pleadings no instructions and the Court is also not taking necessary steps to ensure that counsel had sufficient reason not to appear for party who engaged him or to plead no instructions ex parte decree is liable to be set aside on this ground alone. 6. Learned counsel for the appellant further placed reliance on 1998(2) SCC 206 [Malkiat Singh & Another v. Joginder Singh & Ors,] wherein the Hon'ble apex Court has dealt with a case in which the counsel for the party pleaded no instructions and has observed as under: "There is no denying the fact that the appellants had engaged a counse1 to defend them in the civil suit. The counsel for the appellants pleaded "no instructions" but the Court did not issue any notice to the appellants, who were admittedly not present on the date when their counsel reported no instructions in the Court. It is nobody's case that the counsel informed them after he had reported no instructions to the Court. 7. In this fact situation, the trial Court, which had admittedly not issued any notice to the appellants after their counsel had reported no instructions, should have, in the interest of justice, allowed that application and proceeded in the case from the stage when the counsel reported no instructions. The appellants cannot, in the facts and circumstances of the case be said to be at fault and they should not suffer." Further reliance has been placed on AIR 2001 SC 2497 [M.K. Prasad v. P.Arumugam] wherein the Hon'ble Supreme Court has observed as under: "9. In the instant case the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application tiled under S. 5 of the Limitation Act accompanied by his own affidavit. In the instant case the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application tiled under S. 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not on the whole, Warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the propel1y, concededly to be valuable. While deciding the application for setting aside the ex-parte decree the Court should have kept in mind the judgement impugned the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex-parte decree. To avoid further delay we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well." 7. Shri Shekhar Sharma, learned counsel for respondent No.1 submits that appellant was not the employee of respondent No.2 Company, but was whole and sole as he was the Managing Director at the relevant time. It was submitted that learned trial Coul1 has rightly rejected the application for setting aside the ex-parte decree. It was further submitted that partial decretal amount has already been deposited with the executing Court and the house of the appellant has also been attached by the executing Court for recovering the balance amount. 8. It was submitted that learned trial Coul1 has rightly rejected the application for setting aside the ex-parte decree. It was further submitted that partial decretal amount has already been deposited with the executing Court and the house of the appellant has also been attached by the executing Court for recovering the balance amount. 8. In view of the fact that the appellant has resigned from the post of Managing Director of the respondent No.2 Company and counsel of the appellant repol1ed no instructions without giving intimation to appellant and also keeping in view the aforesaid position of law, the impugned order dated 27.3.2004 passed in MJC 3/03 by the Court below, and consequently ex-parte decree dated 31.7.1996 in CS I-B/92 so far as it is against the appellant, is set aside subject to payment of costs of Rs. 5,000/-. The parties are directed to appear in person before the Court below for the trial of the suit on 21.2.2005. The proceedings of execution case so far as it relates to appellant shall remain stayed till disposal of the suit. The money recovered shall be kept in a nationalized bank so that it can earn interest. Suit be disposed of within a period of nine months. No order as to costs. .....................