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2006 DIGILAW 759 (MP)

Mukesh Singh v. Geetabai

2006-05-20

NISHITH KUMAR MODY

body2006
ORDER 1. Being aggrieved by the order dated 17.1.2005 passed by Second Additional District Judge (Fast Track), Mungaoli, district Guna in Civil Appeal No. 2/2004 whereby the order dated 31.7.2001 passed by Civil Judge, Class I, Mungaoli, in MJC No. 117/1987 was confirmed and the application filed by petitioners for setting aside ex parte decree dated 3.11.1987 passed in Civil Suit No. 345-A/1983 was dismissed, the present revision has been filed. 2. Short facts of the case are that a civil suit was filed by respondent No. 1 for specific performance and in that suit itself it was prayed that the sale-deed dated 6.9.1983 executed in favour of Gangaram, predecessor in title of petitioners No.1 and 2 be declared as null and void. In the suit, deceased Gangaram and Pahalwan Singh, petitioner No.3 were not impleaded as party. Upon the application filed by deceased Gangaram and petitioner No.3 Pahalwan Singh under Order 1 Rule 10, CPC, they were impleaded as party-defendants and vide order dated 16.4.1987 upon non-filing of the written statement, case proceeded ex parte against them and vide order dated 3.11.1987 ex parte decree was passed against Gangaram and Pahalwan Singh. Thereafter, an application was filed on 23.11.1987 by Gangaram and Pahalwan Singh under Order 9 Rule 13, CPC wherein it was alleged that deceased Gangaram was patient of T.B. and petitioner No.3, Pahalwan Singh was out of station in connection with treatment of Gangaram, hence Gangaram and Pahalwansingh, petitioner No.3 could not remain present before the Court and the case was decreed ex parte. It was prayed that the 31 ex parte decree be set aside. 3. The application was contested by respondents. After holding an enquiry the learned trial Court dismissed the application vide order dated 31.7.2001 against which a miscellaneous appeal was filed which was also dismissed by the impugned order. 4. Learned counsel for the petitioners submits that the learned Courts below have committed error in dismissing the application filed by the petitioners. It is submitted that deceased Gangaram was T.B. patient and remained sick for a period of more than eight years. Petitioner No.3 Pahalwan Singh was the caretaker of deceased Gangaram. It is also submitted that the ex parte decree was passed 3 on 3.11.1987 and the application for setting aside the ex parte decree was filed within the prescribed period of limitation i.e. on 23.11.1987. Petitioner No.3 Pahalwan Singh was the caretaker of deceased Gangaram. It is also submitted that the ex parte decree was passed 3 on 3.11.1987 and the application for setting aside the ex parte decree was filed within the prescribed period of limitation i.e. on 23.11.1987. It is submitted that the learned Courts below committed error in not exercising the jurisdiction in favour of the petitioners while there was unrebutted oral testimony of the petitioners. Learned counsel submits that on account of treatment of Gangaram, the petitioner No.3 Pahalwan Singh remained out of station. It is also submitted that learned Courts below committed error in dismissing the application only on the ground that petitioners have failed to prove the medical record relating to sickness of deceased Gangaram. 5. Learned counsel placed reliance on a decision of this Court in the matter Benibai (Smt.) v. Smt. Champabai, reported in 1996 JLJ 436 = AIR 1996 MP 243 , wherein this Court has observed that no doubt it is true that an application under Order IX Rule 13, CPC could not be allowed on humanitarian grounds but the Courts cannot close their eyes to the realities of the life. The appellant who resides at a long distance; who is an old and infirm and sick lady as alleged, obviously is entitled to seek the benefit of the provisions of Order IX Rule 13 of the CPC. Further reliance was placed on a decision of the apex Court in the matter of Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani and another, reported in 1993 Supp. (3) SCC 256, wherein Advocate withdrew his appearance from the Court, the petitioners were not present before the Court. There was nothing on record to show as to whether the petitioners had the notice of hearing of the case on that date. In the circumstance, Hon'ble Supreme Court observed that in the interest of justice fresh notice for actual date of hearing ought to have been sent to the parties. 6. There was nothing on record to show as to whether the petitioners had the notice of hearing of the case on that date. In the circumstance, Hon'ble Supreme Court observed that in the interest of justice fresh notice for actual date of hearing ought to have been sent to the parties. 6. Further reliance was placed on a decision in the matter of Malkiat Singh and another v. Joginder Singh and others [ (1998) 2 SCC 206 ] wherein in a case where ex parte decree was passed without issuing any notice to the appellants who were not present when their counsel pleaded no instructions, Hon'ble the apex Court held that since the application for setting aside the decree was filed within four days, therefore, it cannot be said that the petitioners were at default. In this case, Hon'ble the apex Court has observed that admittedly the learned trial Court did not issue any notice to the appellants after their counsel reported "no instructions", should have, in the interest of justice allowed the application and proceeded in the case from the stage when the counsel stated "no instructions". It was further observed that in the facts and circumstances of the case it cannot be said that appellants were at default and they should not suffer. 7. Further reliance is placed on the decision in the matter of Uco Bank v. Iyengar Consultancy Services Pvt. Ltd. [1994 Supp. (2) SCC 399], wherein the application was filed for setting aside ex parte decree on account of information supplied by the counsel from time to time regarding pendency of the case. On coming to know of factual position, belatedly filing appeal through another counsel before the Division Bench of the High Court, it was held that it was fit case for setting aside ex parte decree. Further reliance was placed on a decision in the matter of G.P. Shrivastava v. R.K. Raizada and others, reported in AIR 2000 SC 1221 , wherein Hon'ble the apex Court held that medical certificate was obtained by appellant from a private doctor and not from a Government doctor, which cannot be a ground of rejecting the plea of sickness. Further reliance was placed on a decision in the matter of G.P. Shrivastava v. R.K. Raizada and others, reported in AIR 2000 SC 1221 , wherein Hon'ble the apex Court held that medical certificate was obtained by appellant from a private doctor and not from a Government doctor, which cannot be a ground of rejecting the plea of sickness. Since the application was filed within the statutory period therefore Hon'ble the apex Court observed that the trial Court and also the High Court have adopted a very narrow and technical approach in dealing with a matter pertaining to the eviction of the appellant despite the fact that he had put a reasonable defence. It was also observed by Hon'ble the 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. It was also observed that on account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. 8. In the present case the petitioners have submitted that deceased Gangaram was suffering from T.B. and petitioner No.3 Pahalwan Singh was looking after him. The application was filed within the prescribed period of limitation. Even if it is assumed that, petitioners were negligent then too the respondents could have been compensated by costs. 9. In view of this the revision is allowed. The impugned order dated 17.1.2005 passed by Second Additional District Judge (Fast Track), Mungaoli, district Guna, in Civil Appeal No. 2/04 and also the order dated 31.7.2001 passed by Civil Judge, Class I, Mungaoli, in MJC No.117/1987 are set aside and also the ex parte decree dated 3.11.1987 passed in Civil Suit No. 345-A/83 is set aside on payment of cost of Rs. 3,000/- (Rupees Three thousand only) with a direction to the parties to remain present before the trial Court on 18th of July 2006. It is also directed that the learned trial Court shall dispose of the suit at the earliest preferably within a period of six months.