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2009 DIGILAW 2203 (ALL)

HINDU MAHILA VIDHYALAYA v. RAJEEV DAVE

2009-05-11

SANJAY MISRA

body2009
JUDGMENT SANJAY MISRA, J.--Heard Mrs. Rama Goel Bansal learned Counsel for the revisionist and Sri Rishi Chaddha, learned Counsel for the plaintiff-opposite party. This revision has been received as a fresh case by nomination and with the consent of learned Counsels is being decided today itself. 2. The defendant-revisionist has challenged the order dated 16.4.2009 passed in S.C.C. Suit No. 26/2003 by the Additional District Judge, Court No. 12, Allahabad under section 25 of the Provincial Small Causes Courts Act. By the impugned order, the application 26 (ga) filed by the defendant-revisionist has been rejected. The revisionist had filed the application for recall of the order dated 28.2.2004 whereby the case was directed to proceed ex-parte against the defendant he having not filed any written statement. The order indicates that the summons were issued were served by tite process server which bore the signature, date and seal of the revisionist-institution acknowledging receipt of the summons on 9.10.2003. The Court below has rejected the application of the defendant holding therein that once summons were served, no sufficient reason has been shown by the defendant-revisionist for non-appearance before the Court when the order dated 28.2.2004 was passed for proceeding ex parte against him. It has also been recorded that no affidavit has been filed by the clerk who is alleged to have signed the summons in acknowledgment nor the Counsel for the revisionist has filed any affidavit to indicate that the revisionist had no knowledge about the pendency of the S.C.C. Suit No. 26/2003 and it was he who informed the revisionist abut the proceedings. The Court has therefore affirmed the order dated 28.2.2004 and directed that the proceedings of the suit should proceed ex parte against the defendant. 3. Learned Counsel for the defendant-revisionist has placed reliance upon a decision of Hon'ble Apex Court in the case of C.P. Srivastava v. R.K. Raizada and others1, to contend that the discretion is normally exercised in favour of the defendant provided his absence was not mala fide or intentional. She has also placed reliance upon a decision of Hon'ble Apex Court in the case of Sangram Singh v. Election Tribunal, Kotah,2 to state that the provisions of Code or Civil Procedure are procedural in nature and it is to facilitate justice and further its end and not a penal enactment for punishment and penalties. She has also placed reliance upon a decision of Hon'ble Apex Court in the case of Sangram Singh v. Election Tribunal, Kotah,2 to state that the provisions of Code or Civil Procedure are procedural in nature and it is to facilitate justice and further its end and not a penal enactment for punishment and penalties. She states that the Hon'ble Apex Court has clearly held in Paragraph 39 as under:-- 1. 2000 (39) ALR 110 (SC)=2000 (1) ARC 542. 2. AIR 1955 SC 425 . "(39) A much weightier consideration is that the plaintiff may be gravely prejudiced in a given case because, as the learned Rajasthan Judges point out, and as O'Sullivan, J. thought, when a case proceeds "ex parte", the plaintiff does not adduce as much evidence as he would have if it has been contested. He contends himself with leading just enough to establish a 'prima facie' case. Therefore, if he is suddenly confronted with a contest after he has closed his case and the defendant then comes forward with an army of witnesses he would be taken by surprise and gravely prejudiced. That objection is, however, easily met by the wide discretion that is vested in the Court. If it has reason to believe that the defendant has by his conduct misled the plaintiff into doing what these learned Judges' apprehend, then it might be a sound exercise of discretion to shut out cross-examination and the adduction of evidence on the defendant's part, and to allow him only to argue at the stage when arguments are heard. On the other hand, cases may occur when the plaintiff is not, and ought not to be, misled. If these consideration are to weigh, then surely the sounder rule is to leave the Court with an unfettered discretion so that it can take every circumstance into consideration and do what seems best suited to meet the ends of justice in the case before it." 4. On the aforesaid basis, the contention is that in the present case when there was a clear denial in the affidavit filed by the Manager regarding non-receipt of summons, it was the plaintiff who had to prove that the summons had been served in the office of the revisionist and for the said purpose, he was required to examine the process server and other requirements for discharge his burden of proof. 5. 5. Sri Rishi Chaddha, learned Counsel for the plaintiff-opposite party has on the other hand contended that the impugned order clearly records service of summons by acknowledgments on the revisionist on 9.10.2003 and even thereafter, the revisionist did not appear till 18.5.2007 although another proceeding under section 21 (8) of U.P. Act No. 13 of 1972 was already pending before the Appellate Court wherein, the revisionist had obtained an interim order regarding enhanced rent on the ground that the plaintiff-respondent is likely to file a suit for default in payment of rent and arrears of rent upon the enhanced amount against the revisionist. He therefore states that the defendant-revisionist was fully aware about the pendency of this suit and was intentionally not appearing before the Court. He has supported the impugned order and was stated that the suit is liable to proceed ex-parte. 6. Having considered the submissions of learned Counsel for the parties, it is not disputed that written statement has not been filed and the ex parte proceedings are at the first stage of the suit. According to the revisionist, the summons were never served and the revisionist had no knowledge about the pendency of the suit. On the other hand, the impugned order clearly records that there is signature, date and seal of the revisionist acknowledging the receipt of the summons. This finding has been disputed by the revisionist by saying that the signature and seal of the revisionist-institution is forged. Upon such a denial made on affidavit by the revisionisf, the service of summons was required to be proved in accordance with law and reliance upon the signature and seal of the revisionist which was denied by the revisionist and said to be forged could not have been relied by the Court below blindly unless such service was proved on the revisionist by the plaintiff-opposite party. Therefore, while considering the stage of the proceedings which is now proceeding ex parte, it will be seen that no prejudice will be caused to the plaintiff who has not yet led his complete evidence as is quite apparent from the order dated 22.4.2009 (order sheet) of the Trial Court. The plaintiff has amended his plaint and the Court has fixed a date for evidence and arguments of the plaintiff. The plaintiff has amended his plaint and the Court has fixed a date for evidence and arguments of the plaintiff. Consequently, as held in the case of Sangram Singh (supra) by the Hon'ble Apex Court, if there is no prejudice being caused to the plaintiff, the Courts have to take a liberal view with respect to a defendant who has been shut out from the proceedings of the suit particularly when the plaintiff has not closed his evidence and shall have full opportunity to contest any evidence led by the defendant and also lead his own evidence. 7. In view of the aforesaid circumstances, it would be appropriate that the defendant should be afforded an opportunity to contest the suit particularly when the service of summons have not been proved in accordance with law but the Court below has blindly perused the summons, the signature, date and seal of acknowledgment on it and has not considered the objection of the revisionist alleging it to be a forged signature of the clerk and forged seal of the institution. Clearly the impugned order is not in accordance with law and has caused substantial injustice to the defendant. 8. In view of the aforesaid circumstances, the impugned order dated 16.4.2009 passed in Suit No. 26/2003 by the Additional District Judge, Court No. 12, Allahabad is set aside. The Application No. 26 (ga) is allowed. The order dated 28.2.2004 whereby the case was directed to proceed ex parte is also set aside. This revision stands allowed as above. 9. Sri Rishi Chaddha has then stated that the defendant-revisionist has not deposited the rent of the premises in question since 1.1.1998 when it had been enhanced. He states that the Appellate Court where the appeal in proceedings under section 21 (8) of U.P. Act No. 13 of 1972 are pending had passed an interim order requiring the revisionist to deposit half of the enhanced rent. According to him, even that amount has not been deposited and the interim order of the Appellate Court has automatically been vacated. According to him, the revisionist is liable to deposit the enhanced rent before the Court below in order to mitigate the hardship of the plaintiff-opposite party who is entitled to the rent. 10. According to him, even that amount has not been deposited and the interim order of the Appellate Court has automatically been vacated. According to him, the revisionist is liable to deposit the enhanced rent before the Court below in order to mitigate the hardship of the plaintiff-opposite party who is entitled to the rent. 10. In view of the aforesaid circumstances, it is provided that the defendant-revisionist should deposit the entire rent as enhanced w.e.f. 30.9.2000 till date before the Trial Court within a period of four months from today and continue to deposit the rent by the 7th of the succeeding month when it falls due which shall be subject to the decision of the Appellate Court in proceedings under section 21 (8) of U.P. Act No. 13 of 1972. It is made clear that this direction to deposit the enhanced rent shall not in any manner influence the Appellate Court to take a decision on merits is proceedings arising under section 21 (8) of U.P. Act No. 13 of 1972. Any amount of rent already deposited before the Trial Court may be given adjustment. In the event of default, all legal and factual pleas regarding deposit of rent on or before the first date of hearing shall be open to the plaintiff. 11. No order is passed as to costs. Revision Allowed.