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2009 DIGILAW 240 (JK)

JDA v. Ishwar Dass

2009-05-16

MUZAFFAR HUSSAIN ATTAR

body2009
1. Through this application the applicants seek condonation of delay in filing the appeal against the judgment and decree dated 28.1.2003 passed by the learned Additional District Judge, Jammu, whereby and whereunder the suit filed by the respondent-plaintiff has been decreed against the appellants-defendants for recovery of Rs. 1,30,525/- with interest at the rate of 9% per annum from the date of filing of the suit till its realization. The judgment and decree has been passed in ex parte. 2. The defendants-applicants in the application have stated that during the pendency of the suit they filed an application under Order 7 Rule 11(d) of the Code of Civil Procedure seeking rejection of the plaint for non-compliance of the mandate of Section 48 of J&K Development Act. The applicants have further stated that though they engaged the counsel in the case, but he did not inform the applicants about the proceedings of the case and they learnt about the passing of the impugned judgment and decree when the execution proceedings were filed and notice issued. The applicants have stated that the suit of plaintiff-non-applicant was not maintainable in law, so no decree could have been passed. It is further pleaded that the delay in filing the appeal is neither intentional nor deliberate. 3. The plaintiff-non-applicant has filed the objections controverting the averments made in the application. It is further stated that the defendants-applicants had filed the application seeking setting aside the ex parte proceedings. The said application was allowed by the learned trial court subject to payment of costs, but thereafter the applicants did not appear in the case and ultimately the trial court passed the decree and judgment. Heard learned counsel for the parties. 4. After arguing for a while, learned counsel for plaintiff-non-applicant conceded for allowing the application in view of the fact that the judgment and decree suffers from legal infirmities. Besides the concession given by the learned counsel for non-applicant for allowing the application, this Court is also satisfied that the grounds projected in the application do call for allowing the same. This application is, accordingly, allowed and the delay caused in filing the appeal is condoned. CIA No.30/2007 5. Admit. Issue notice. Mr. K. N. Spolia, Advocate, accepts notice on behalf of respondent. With the consent of learned counsel for the parties, this appeal is taken up for final disposal. 6. This application is, accordingly, allowed and the delay caused in filing the appeal is condoned. CIA No.30/2007 5. Admit. Issue notice. Mr. K. N. Spolia, Advocate, accepts notice on behalf of respondent. With the consent of learned counsel for the parties, this appeal is taken up for final disposal. 6. The respondent-plaintiff instituted a suit for recovery of Rs.1,30,525/- against the appellants-defendants, which suit was tried and decided by the learned Additional District Judge, Jammu. In the suit the respondent-plaintiff claimed the above-stated amount as compensation on the ground that his property was allegedly demolished by the appellants. The appellants-defendants after appearing before the learned trial court chose to remain absent and, accordingly, the ex parte proceedings were initiated against them. Thereafter the appellants-defendants made an application seeking setting aside of the exparte proceedings, which application was allowed by the learned trial court subject to payment of costs. 7. An application under Order 7 Rule 11(d) CPC was also filed on behalf of the appellants-defendants before the learned trial court praying therein that the suit of the respondent-plaintiff be dismissed and plaint rejected. However, the appellants thereafter did not appear before the learned trial court and the learned trial court dismissed the said application filed by the appellants-defendants in default vide order dated 26.11.2001. The learned trial court thereafter proceeded on the application filed by the counsel for respondent-defendant in terms of Section 35(B) of Code of Civil Procedure. This section provides for imposing costs for causing delay in the trial of the case. The learned trial court ultimately passed the impugned judgment and decree by having recourse to Order 8 Rule 11 of CPC. Heard learned counsel for the parties. 8. The learned trial court is under a statutory obligation to consider as to whether the suit is maintainable or suffers from some legal infirmity. This duty is cast upon the learned trial court and it is to be discharged even when no motion is filed by a party for seeking rejection of the plaint. Order 7 Rule 11 of CPC casts a statutory obligation on the learned trial court to find out as to whether the suit is competent or is hit by any statutory bar. Before arriving at a conclusion, the learned trial court is to give an opportunity of hearing to the plaintiff. Order 7 Rule 11 of CPC casts a statutory obligation on the learned trial court to find out as to whether the suit is competent or is hit by any statutory bar. Before arriving at a conclusion, the learned trial court is to give an opportunity of hearing to the plaintiff. In this case though an application under Order 7 Rule 11 CPC was filed, but the same was dismissed in default. The learned trial court has failed to exercise jurisdiction in considering as to whether the suit of respondent-defendant was competent or would suffer dismissal because of the statutory bar. 9. Section 35-B of the Code of Civil Procedure would be attracted only when a party to the suit is adopting dilatory tactics to frustrate the early disposal of the case. In this case the appellants-defendants had absented and the trial court was not disabled to proceed with the case. The trial court had assumed a situation which was not in existence in the case and has passed the judgment and decree which it could not pass in the facts of this case. The trial court was duty bound to record the evidence of plaintiff in exparte and thereafter to consider its impact on the case. It was the further duty of the trial court to find out as to whether the case for passing of a decree was made out even in exparte by the respondent-plaintiff. The learned trial court however has adopted a procedure by misapplying the provisions of law and has passed the judgment and decree which cannot be countenanced in law in the fact situation of the case. 10. Faced with this situation, the learned counsel for respondent-plaintiff fairly admitted that the judgment and decree passed by the learned trial Judge is illegal and requires to be set aside. 11. In view of the above, the appeal is allowed and the impugned judgment and decree is set aside. The parties through their counsel are directed to appear before the trial court on 5th June 2009. The trial court will proceed in the matter in accordance with law. 12. Registry is directed to send a copy of this order to the learned trial court forthwith. Disposed of along with connected CMP.