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Gujarat High Court · body

2009 DIGILAW 205 (GUJ)

Meena Patel v. Harsh Ajay Banker

2009-03-26

M.S.SHAH

body2009
Judgment Mohit S. Shah, J.—This petition under Articles 226 and 227 of the Constitution is directed against the order dated 10.1.2006 passed by the learned Additional Senior Civil Judge, Ahmedabad (Rural) rejecting Misc. Civil Application No. 56 of 2005 for setting aide the ex-parte decree passed by the same Court in Summary Special Civil Suit No. 65 of 2004. 2. The respondent herein [hereinafter referred to as “the plaintiff”] filed Summary Special Civil Suit No. 65 of 2004 against the present petitioners [hereinafter referred to as “the defendants”] for recovery of Rs. 3,82,586-29 ps., which according to the plaintiff, was the amount outstanding towards construction of the house of the defendants. The total bills submitted by the plaintiff were for Rs. 8,97,586-29 ps., against which the defendants had paid Rs. 5,20,000/- and, therefore, the plaintiff filed the suit for recovering the balance amount of Rs. 3,77,586-29 ps. The plaintiff also claimed a further sum of Rs. 5,000/- as notice charges. 3. Since the suit was filed as a summary suit, the defendants were required to enter their appearance within ten days from the date of service of summons. On 23.12.2004, the defendants entered their appearance indicating in the note of appearance that the defendants were served on 14.12.2004 and, therefore, the appearance was entered within ten days from the date of service of summons. The plaintiff, however, filed application Exh,. 9 on 0.03.2005 contending that the summons was served upon the defendants on 7.12.2004, but the defendants had not filed their appearance within ten days from the date of service of summons, but they had filed their appearance on 27.12.2004. Hence, the appearance of the defendants could not be taken cognizance of and the defendants be treated as absent and ex-prate decree be passed against the defendants. The application appears to be been entertained and the learned trial Judge passed the following order:— “Fix for hearing Sd/-. 5.4.05" 4. It is the case of the petitioners herein (original defendants) that the said application was not served upon the defendants and the learned Advocate for the original plaintiff does not dispute the said assertion. The learned trial Court by order dated 25.04.2005 allowed application Exh. 9 and held that the summons was served on the defendants on 7.12.2004 and not on 14.12.2004 as stated in the note of appearance filed by the defendants. The learned trial Court by order dated 25.04.2005 allowed application Exh. 9 and held that the summons was served on the defendants on 7.12.2004 and not on 14.12.2004 as stated in the note of appearance filed by the defendants. In the circumstances, the defendants were required to enter their appearance by 17.12.2004. There was thus delay of 6 days in the appearance having been filed by the defendants, for which an application for condonation of delay ought to have been filed, but no such application was made, but the summons was stated to have been served on 14.12.2004. 5. After the aforesaid order dated 25.04.2005, the plaintiff filed affidavit dated 21.9.2005 praying for passing an ex-parte decree against the defendants as the defendants had not appeared before the Court within the stipulated time limit of ten days from the date of service of summons in the suit. The plaintiff, therefore, prayed for a decree for a sum of Rs. 3,82,586/-. There is no dispute about the fact that the said affidavit dated 21.09.2005 (Exh. 10) was also not served upon the defendants, but the Court simply made an endorsement “recorded” on the said affidavit. 6. The learned trial Court thereafter passed judgment and decree dated 30.9.2005 on the basis of the documentary evidence produced by the plaintiff and directed the defendants to pay the plaintiff Rs. 3,82,586-29 ps. with interest @ 6% from the date of the suit till the date of payment. Thereafter the present petitioners i.e. original defendants filed application being Misc. Civil Application No. 56 of 2005 on 23.12.2005 for setting aside the decree on the ground that the defendants were not served with application Exh. 9 or affidavit Exh. 10, that the defendants were prosecuting Case No. 513 of 2004 before the Consumers Disputes Redressal Forum, Ahmedabad City which was allowed by judgment dated 23.08.2005 wherein the Consumer Forum held that the plaintiff had not carried out the construction work as per the contract and, therefore, the plaintiff herein was directed to carry out the remaining incomplete work within two months. The Consumer Forum also directed the plaintiff herein to pay the complainants (i.e. the defendants herein) Rs. 1000/- for mental agony and further Rs. 1000/- as costs to each of the complainants. The Consumer Forum also directed the plaintiff herein to pay the complainants (i.e. the defendants herein) Rs. 1000/- for mental agony and further Rs. 1000/- as costs to each of the complainants. It was further submitted by the defendants in their application that after the defendants had remained in touch with their learned Advocate who had informed the defendants that as and when required, the defendants would be called by him. After the above judgment was rendered by the Consumer Forum on 23.8.2005, the defendants had also delivered a copy thereof to their learned Advocate as the subject of the complaint before the Consumer Forum was intimately connected with the subject matter of the suit giving rise to the present petition. 7. The learned Trial Judge, however, dismissed the said application by the impugned judgment dated 10.01.2006. Hence, the petitioners filed the present petition on 11.01.2006. 8. At the hearing of this petition, Mr TS Nanavati, learned Counsel for the petitioner has submitted that even if there was any delay, delay in filing the appearance in the summary suit was only of six days. The provisions of Sub-rule (7) of Rule 3 of Order 37 CPC empower the Court to excuse the delay on the part of the defendant in entering an appearance for sufficient cause. It is submitted that apart from the fact that the Court could have given an opportunity to the defendants to show such sufficient cause, at least the defendants were required to be served with application Exh. 9 and affidavit Exh. 10 which were filed in March, 2005 and September 2005 respectively. The very fact that the defendants were prosecuting Case No. 513 of 2004 before the Ahmedabad City Consumer Disputes Redressal Forum and the said case was allowed in favour of the present defendants is sufficient to show that the defendants had never acquiesced in the plaintiff’s claim and were always interested in contesting the suit and the summons for judgment. It is submitted that a copy of the summons for judgment was required to be served upon the defendants and their presence could not have been ignored merely on the ground that there was delay of six days in filing the appearance in the summary suit. It is submitted that a copy of the summons for judgment was required to be served upon the defendants and their presence could not have been ignored merely on the ground that there was delay of six days in filing the appearance in the summary suit. It is further submitted that it was only when the defendants were faced with the execution proceedings and the defendants were coerced into giving three post dated cheques of Rs. 1.33 lacs and cash amount of Rs. 15,000/- on 17.12.2005 that the defendants came to learn about an ex-parte decree having been passed against them and, therefore, they made inquiries and immediately thereafter on 28.12.2005 they filed the Civil Misc. Application for setting aside the ex-parte decree. 9. On the other hand, Mr Deliwala, learned Advocate for the respondent - plaintiff has supported the order of the Trial Court and submitted that in absence of any application for condonation of delay under Sub-rule (7) of Rule 3 of Order 37, the plaintiff, the plaintiff’s advocate as well as the Trial Court were justified in ignoring the appearance of the defendants beyond the stipulated period of ten days. It is also contended that the petitioners have an alternative remedy of filing an appeal against the ex-parte decree. 10. Having heard the learned advocates for the parties, the Court finds it quite shocking that when the trial Court had noted that the defendants had appeared in the suit on 23.12.2004, instead of appearing on 17.12.2004 (as summons was shown to have been served on 07.12.2004), the Trial Court did not require the plaintiff to give a copy of application Exh. 9 submitted on 05.03.2005 and a copy of affidavit Exh. 10 on 21.09.2005 and straightaway passed orders against the defendants by passing an ex-parte decree on 30.9.2005. The defendants had mentioned in their note of appearance that the summons was served on 14.12.2004 and they were filing the note of appearance within ten days. Even if this statement in the note of appearance did not seem to be accurate, at least the trial Court was required to ask the plaintiff to serve a copy of application Exh. 9 and affidavit Exh. 10 upon the defendants and then the trial Court was required to give the defendants an opportunity of hearing before passing any ex-parte order. 9 and affidavit Exh. 10 upon the defendants and then the trial Court was required to give the defendants an opportunity of hearing before passing any ex-parte order. The course adopted by the Trial Court is quite shocking, to say the least. The trial Court was not at all justified in passing an ex-parte decree. Even though the appearance was filed by the defendants on 23.12.2004 and even after noting that the defendants had appeared in the suit on 23.12.2004, without giving any opportunity of hearing to the defendants the Trial Court passed the ex-parte decree on 30.9.3005. 11. The contention raised on behalf of the respondent - plaintiff that the petitioners have an alternative remedy cannot be accepted because the manner in which the ex-parte decree was obtained by the respondent - plaintiff speaks volumes and this Court will not be loath to exercise its extraordinary discretionary writ jurisdiction in such gross cases. 12. In view of the above discussion, this petition is allowed in the following terms :- (A) The impugned order dated 10.01.2006 of the Trial Court is set aside. Civil Misc. Application No. 56 of 2005 filed by the present petitioners is allowed. The decree dated 14.11.2005 is set aside and Summary Special Civil Suit No. 65 of 2004 is restored to the file of the learned Senior Civil Judge, Ahmedabad (Rural). (B) In the facts and circumstances of the case, the delay of six days in filing the appearance in the Summary Special Civil Suit No. 65 of 2004 is condoned, subject to the condition that the petitioners herein (defendants in the suit) shall pay a sum of Rs. 1,000/- to the plaintiff within one month from today. Thereafter the suit shall proceed from the stage of the plaintiff serving a summons for judgment upon the defendants in accordance with law. Rule is made absolute to the aforesaid extent. Direct Service is permitted.