Research › Search › Judgment

Chhattisgarh High Court · body

2008 DIGILAW 277 (CHH)

Devraj @ Dev Rai v. Uma Devi

2008-09-26

D.R.DESHMUKH

body2008
ORDER (Passed on this 26th day of September, 2008) The appellant/defendant has preferred this miscellaneous appeal against the order dated 14-12-2004 passed in Miscellaneous Civil Case No.03/2004 whereby the 2nd Additional District Judge, (F.T.C.), Mungeli has rejected the applications under Order 9 Rule 13 C.P.C. and under Section 5 of the Limitation Act for setting aside the ex parte judgment and decree dated 22- 04-2002 passed in Civil Suit No.8-A/1999 and for condonation of delay in filing the application under Order 9 Rule 13 C.P.C. (2) It is not disputed in this appeal that a suit for specific performance of contract was filed by the respondent/plaintiff against the appellant/defendant before the 2nd Additional District Judge, (F.T.C.), Mungeli in which the appellant/defendant was served with the summons and was being represented by counsel till 29-01-2001. It is also not in dispute that on 29- 01-2001 upon pleading no instructions by the counsel for the appellant/defendant, the Court proceeded ex- parte against the appellant/defendant. Ex parte judgment and decree was passed on 22-04-2002. Applications under Order 9 Rule 13 C.P.C. and Section 5 of the Limitation Act were filed on 25-06-2002 by the appellant/defendant in the Court below wherein it was mentioned by the appellant/defendant that after engaging counsel to defend him in the suit, on account of a draught he had left for Kanpur for earning his livelihood. On returning from Kanpur on 23-04-2002, he learnt that ex parte judgment and decree was passed against him in Civil Suit No.08-A/1999 on 22-04-2002, and thereafter, he promptly applied for certified copy of the said judgment and decree on 24-04-2002. It was delivered to him on 07-05-2002 and thereafter from 14-05-2002 due to summer vacation in the Courts and till 24-06-2002, the presiding judge being on leave, application under Order 9 Rule 13 C.P.C. could not be filed. On these premises, it was prayed that the delay in filing the application under Order 9 Rule 13 C.P.C. be condoned. (3) The respondent/plaintiff resisted both the applications by filing reply and specifically denied that the appellant/defendant was prevented by sufficient cause from appearing on 29-01-2001. (4) The appellant/defendant examined himself as A.W.1 and witnesses Sadhram, A.W.2 and Shivbagas, A.W.3. in support of the application under Order 9 Rule 13 C.P.C. The respondent/plaintiff examined herself as N.A.W.1 and Banshidas, N.A.W.2. (3) The respondent/plaintiff resisted both the applications by filing reply and specifically denied that the appellant/defendant was prevented by sufficient cause from appearing on 29-01-2001. (4) The appellant/defendant examined himself as A.W.1 and witnesses Sadhram, A.W.2 and Shivbagas, A.W.3. in support of the application under Order 9 Rule 13 C.P.C. The respondent/plaintiff examined herself as N.A.W.1 and Banshidas, N.A.W.2. (5) The learned 2nd Additional District Judge, (F.T.C.), Mungeli on consideration of the applications filed under Order 9 Rule 13 C.P.C. and under Section 5 of the Limitation Act as also the evidence led by the parties, held that the appellant/defendant had failed to show sufficient cause for his non-appearance on 29- 01-2001 as also for the delay in filing the application under Order 9 Rule 13 C.P.C. It took into consideration several subsequent events that took place in the suit and observed in para 12 of the impugned order as under:- **;fn ;g eku Hkh fy;k tk, fd vkosnd dekus&[kkus ckgj x;k Fkk] rc Hkh blds iwoZ og izdj.k esa mifLFkr gks pqdk Fkk vkSj viuh vksj ls iSjoh djus gsrq vf/koDrk Hkh fu;qDr fd;k Fkk A vr% mls vf/koDrk ds ek/;e ls izdj.k dh izxfr ds ckjs esa tkudkjh fey ldrh Fkh A vkosnd dh iRuh xzke gFkuhdyk esa Fkh vkSj blds ckn Hkh vkosnd us izdj.k esa mifLFkr gksus ds ckn dk;Zokgh esa tku&cw>dj fcuk fdlh mfpr ,oa i;kZIr dkj.k ds Hkkx ugha fy;k Fkk] blds ckn Hkh vkosnd ds vf/koDrk us yxHkx ,d o"kZ rd vusd isf'k;ksa esa vkosnd dh vksj ls mifLFkfr nsdj izdj.k tokcnkok gsrq le; ekaxdj c<+krs jgs vkSj var esa vkosnd ds mifLFkr ughsa gksus ls ,oa mldh tkudkjh ugha gksus ij U;k;ky; esa lwpuk nsdj viuh mifLFkfr nsuk can fd, FksA bl izdkj vkosnd dk O;ogkj izdj.k esa xSj&ftEesnkjkuk jgk gS vkSj og tku&cw>dj izdj.k dh iSjoh esa Hkkx ugha fy;k Fkk A vr% vc dsoy izdj.k ds yacudky esa thus [kkus dkuiqj ,m0iz0+ tkus dh ckr cksydj ,oa ogka ls ykSVdj vkus ds ckn Hkh fu/kkZfjr le;kof/k] ,di{kh; fu.kZ; ,oa vkKfIr fnukad 22-4-02 ds ,d ekg ds Hkhrj ;g vkosnu is'k ugha fd;k Fkk A** (6) Submissions of Smt. Renu Kochar, learned counsel for the appellant/defendant and Shri Utkarsh Verma, learned counsel for the respondent/plaintiff were heard. Record is perused. (7) Order 9 Rule 13 C.P.C. reads as under:- ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE Rule 13. Record is perused. (7) Order 9 Rule 13 C.P.C. reads as under:- ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE Rule 13. Setting aside decree ex parte against defendants.- 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 thinks 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 irregularity 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. Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree. (8) Since it is not disputed in this appeal that the summons issued by the Court was duly served on the defendant, the appellant/defendant was required to show that he was prevented by sufficient cause from appearing when the suit was called on for hearing. In other words, the appellant/defendant was required to show sufficient cause for his non-appearance on 29-01- 2001. (9) Article 123 of the Limitation Act, 1963 reads as under:- Description of Period of Time from which appeal limitatio period begins to n run. To set aside a Thirty The date of the decree passed days. decree or where ex parte or to the summons or re-hear an notice was not appeal decreed duly served, when or heard ex the applicant had parte. To set aside a Thirty The date of the decree passed days. decree or where ex parte or to the summons or re-hear an notice was not appeal decreed duly served, when or heard ex the applicant had parte. knowledge of the decree. A plain reading of Article 123 of the Limitation Act, 1963, leaves no room for any doubt that where the summons or notice was duly served on the defendant, period of 30 days for making an application for setting aside the ex parte judgment and decree commences from the date of the decree. Thus in the facts and under the circumstances of the case, the parameters for deciding the applications under Order 9 Rule 13 C.P.C. and under Section 5 of the Limitation Act were different. In the application under Order 9 Rule 13 C.P.C., the appellant/defendant was required to show sufficient cause for non-appearance on 29-01-2001 whereas in the application under Section 5 of the Limitation Act for condonation of delay in filing the said application under Order 9 Rule 13 C.P.C., he was required to show that he was prevented by sufficient cause from filing the application under Order 9 Rule 13 C.P.C. within 30 days from the date of the decree i.e.,22-04-2002. (10) An application under Order 9 Rule 13 C.P.C. could be filed by the appellant/defendant only after passing of the ex parte judgment and decree on 22-04-2002 and not before. So far as the application under Section 5 of the Limitation Act is concerned, the appellant/defendant had, immediately after passing of the ex parte judgment and decree on 22-04-2002, applied for certified copy on 24-04-2002 and obtained certified copy of the ex parte judgment and decree on 07-05-2002. It was stated by the appellant/defendant that since the Court was on vacation from 14-05-2002 and till 24-06- 2002, the presiding judge was on leave, applications under Order 9 Rule 13 C.P.C. and Section 5 of the Limitation Act could be filed by him on 26-06-2002. It was stated by the appellant/defendant that since the Court was on vacation from 14-05-2002 and till 24-06- 2002, the presiding judge was on leave, applications under Order 9 Rule 13 C.P.C. and Section 5 of the Limitation Act could be filed by him on 26-06-2002. It is no doubt true that in the intervening period from 07- 05-2002, i.e., the date of receipt of certified copy of the ex parte judgment and decree and the date on which the Court was on summer vacation, an appeal could have been filed, yet it is well settled that while considering the application under Section 5 of the Limitation Act, a liberal view and pragmatic approach has to be adopted by the Court. If such approach was adopted, it would appear that the application under Section 5 of the Limitation Act ought to have been allowed by the Court below by condoning the delay in filing the application under Order 9 Rule 13 C.P.C. (11) The only question that now requires consideration is whether the appellant/defendant has been able to show that he was prevented by any sufficient cause from appearing before the Court on 29-01-2001 when the suit was called on for hearing. Admittedly, on 29-01-2001, counsel for the appellant/defendant No.1 who was representing the appellant/defendant on all hearings was present before the Court. A perusal of the order sheets in Civil Suit No.8-A/1999 show that the appellant/defendant had appeared in person only on 14- 01-2000 after service of summons on him, and thereafter, the appellant/defendant had never appeared in person and was always represented by counsel Shri Shailendra Kumar Shukla. The appellant/defendant had stated on oath that due to a draught he had left for Kanpur during the pendency of the suit for earning his livelihood after engaging counsel to defend him. In support of this, the appellant/defendant examined Sadhram, A.W.2 and Shivbagas, A.W.3 who had also testified that in the year 2000, the appellant had left for Kanpur for earning his livelihood and had stayed there for almost a year and half. This testimony is wholly unrebutted in cross-examination. It appears that instead of focusing on sufficiency or otherwise of the cause for non-appearance on 29-01-2001, the learned 2nd Additional District Judge, F.T.C., Mungeli was influenced by subsequent conduct of the defendant in the suit. This testimony is wholly unrebutted in cross-examination. It appears that instead of focusing on sufficiency or otherwise of the cause for non-appearance on 29-01-2001, the learned 2nd Additional District Judge, F.T.C., Mungeli was influenced by subsequent conduct of the defendant in the suit. As stated earlier for setting aside the ex parte judgment and decree, the defendant was only required to satisfy the Court that he was prevented by any sufficient cause from appearing on 29- 01-2001 when the suit was called on for hearing. If he was prevented by sufficient cause from appearing before the Court on 29-01-2001, his subsequent conduct in the suit would not, in any manner disentitle him from succeeding in the application under Order 9 Rule 13 C.P.C. Once the Court proceeded ex parte against the appellant/defendant any delay thereafter in pronouncing judgment on 22-04-2002 was wholly attributable to the respondent/plaintiff and not to the appellant/defendant against whom the Court had proceeded ex parte. The Court ought to have considered that the appellant/defendant would not have gained anything by deliberately absenting himself in the suit and in suffering an ex parte decree against him. In the facts and circumstances of the case, I am of the considered opinion that the appellant/defendant had succeeded in showing sufficient cause for his non-appearance on 29- 01-2001 before the learned 2nd Additional District Judge, F.T.C., Mungeli in Civil Suit No.8-A/1999. The learned 2nd Additional District Judge, F.T.C., Mungeli thus erred in rejecting the application under Order 9 Rule 13 C.P.C. (12) It is also pertinent to note that counsel engaged by the appellant/defendant to defend him in the Civil Suit No.8-A/1999 was regularly appearing on behalf of the appellant/defendant from 14-01-2000 on all hearings and pleaded no instructions on behalf of the appellant/defendant all of a sudden on 29-01-2001. Counsel was under a duty to inform the appellant/defendant before doing so. The Court ought to have, before proceeding ex parte, ascertained from the counsel whether he had informed the appellant/defendant that he would be pleading no instructions on his behalf. A counsel who has been engaged to defend a party in the suit is under a professional obligation to represent the client before the Court and should not withdraw from the suit unless he has sent prior information to the client in this regard. A counsel who has been engaged to defend a party in the suit is under a professional obligation to represent the client before the Court and should not withdraw from the suit unless he has sent prior information to the client in this regard. The Court should also ascertain this fact from the counsel and record it in the order-sheet before permitting the counsel to withdraw on the ground that he has no instructions. In other words, the Court may permit the counsel to withdraw only after ascertaining from the counsel that he has informed the defendant that he would be pleading no instructions on his behalf. (13) In the result, the appeal is allowed. The impugned order dated 14-12-2004 is set aside. The application under Order 9 Rule 13 C.P.C. as also the application under Section 5 of the Limitation Act are allowed subject to deposit of proportionate cost of Rs.5,000/- payable by the appellant/defendant to the respondent/plaintiff in the Court below within 30 days from today. Parties are directed to appear before the learned 2nd Additional District Judge, F.T.C., Mungeli on 21-11-2008.