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2009 DIGILAW 2427 (RAJ)

Prem Singh v. Rama Kishan

2009-11-21

GOPAL KRISHAN VYAS

body2009
JUDGMENT : Gopal Krishan Vyas, J. 1. In this miscellaneous appeal filed under Section 104, read with Order 43 Rule 1, Civil Procedure Code, the defendant appellant is challenging the impugned order dated 20.01.2009 passed by the Addl. District Judge No. 3, Jodhpur in Civil Misc. Application No. 95/07 and prayed that the application of the appellant filed under Order 9 Rule 13, read with Section 151, Civil Procedure Code for setting aside the ex-parte judgment and decree dated 11.06.2006 may be allowed. 2. As per facts of the case, a suit for mandatory and permanent injunction was preferred by respondent plaintiff before the District Judge, Jodhpur. In the said suit, after issuing notice by the trial Court, written statement was filed by the appellant-defendant and 2 later on, issues were framed and trial Court proceeded for the trial. On 12.11.2005, an application under Order 11 Rules 12 and 14, Civil Procedure Code was filed by the respondent- plaintiff for seeking direction to the appellant-defendant to place on record the original sale deed of his house. In pursuance of the order dated 11.11.2005, after taking two adjournments, on 27.05.2006, said document was placed before the Court as ordered by the trial Court. The matter was ordered to be fixed on 24.07.2006; but, on that date, due to non-appearance of counsel for the appellant-defendant, ex-parte order was passed against the appellant defendant and the learned trial Court proceeded to conduct the trial. Finally, after providing opportunity to lead evidence to the plaintiff, the learned trial Court decreed the suit vide judgment dated 11.09.2006 in absence of the appellant-defendant because ex-parte order was made due to non-appearance of the counsel for the appellant-defendant on 24.07.2006. Learned trial Court vide judgment dated 11.09.2006 decreed the suit and passed decree for permanent injunction and specifically the following order was passed: 3. The appellant-defendant filed application under Order 9 Rule 13, read with Section 151, Civil Procedure Code for setting aside the aforesaid ex-parte judgment and decree dated 11.09.2006. In the said application, after issuing notice, reply was filed by the plaintiff respondent to the application filed under Section 5, Limitation Act, so also, against the application filed under Order 9 Rule 13, Civil Procedure Code. 4. In the said application, after issuing notice, reply was filed by the plaintiff respondent to the application filed under Section 5, Limitation Act, so also, against the application filed under Order 9 Rule 13, Civil Procedure Code. 4. Before the learned trial Court, respondent-plaintiff specifically pleaded that delay in filing application under Order 9 Rule 13, Civil Procedure Code which is near about one year cannot be condoned on the ground that fact of passing the ex-parte order was well within the knowledge of the appellant defendant; but, without assigning any proper reason, the said application has been filed. It is also stated in the reply that due to non-appearance of his counsel, order to proceed ex-parte against the defendant was passed by the trial Court on 24.07.2006, in which, there is no illegality because ample opportunity prior to passing of this order was granted in presence of the counsel for the appellant-defendant; and, thereafter, nobody appeared before the trial Court till final adjudication on 11.09.2006 and, so also, no reasonable explanation has been given for the delay of one year in filing application under Order 9 Rule 13, Civil Procedure Code after lapse of one year on 06.10.2007. Learned trial Court after hearing both the parties refused to condone the delay and rejected the application under Order 9 Rule 13, Civil Procedure Code solely on the ground of limitation vide impugned order dated 20.01.2009. 5. While challenging the said order, learned counsel for the appellant vehemently argued that after filing the sale-deed as ordered by the trial Court on 27.05.2006, no information whatsoever was given by his counsel and counsel did not appear on the next date of hearing before the trial Court which is 24.06.2005 and, in absence of any information, passing of the final decree ex-parte did not come to the knowledge of the appellant and this fact was brought to the notice of the Court by way of filing application under Section 5, Limitation Act; but, the learned trial Court refused to accept the explanation of the appellant for the delay in filing the application after one year of passing of the ex-parte decree, therefore, the impugned order is illegal and deserves to be set aside. 6. 6. Further, it is argued by learned counsel for the appellant-defendant that on 24.05.2005 he was informed by his counsel that during further proceedings he was not required to attend the Court and he would be informed; but, unfortunately, the counsel remained absent and did not inform him and, finally, notice for execution was issued by the Court and reached appellant-defendant, then, it came to the notice of the appellant that there is ex-parte decree against him and all these facts have been narrated in the application filed under Order 9 Rule 13, Civil Procedure Code for setting aside the ex-parte decree dated 11.09.2006 but without application of mind and without giving cogent reasons, the learned trial Court rejected the application which is totally erroneous because no other facts than the facts narrated above have been submitted by counsel for the respondent-plaintiff before the trial Court. Only ground was raised that there is gross negligence of the defendant for his non-appearance before the Court, therefore, in this view of the matter, the learned trial Court ought to have considered important aspect of the matter that required document was produced before the trial Court on 04.05.2006 and, thereafter, his lawyer was to attend, for which, appellant should not suffer. 7. Per contra, Learned counsel for the respondent plaintiff vehemently argued that there is no error in declining to condone the delay in filing application under Order 9 Rule 13, Civil Procedure Code for setting aside the ex-parte decree because the application was filed after delay, for which, no reasonable explanation is given by the appellant-defendant except the reason that his counsel did not inform him, but, in fact, he was having knowledge of the ex-parte order or ex-parte decree but he has not chosen to approach the Court just to delay the matter, therefore, on the basis of the conduct of the appellant-defendant he is not entitled to seek any relief from this Court and order passed by the trial Court is perfectly in consonance with law and does not require to be interfered with. 8. I have considered the rival submissions advanced by both the parties and perused the material on record. 9. 8. I have considered the rival submissions advanced by both the parties and perused the material on record. 9. It is true that application for setting aside the ex-parte order or ex-parte decree should be filed within limitation; but, in the present case, admittedly, on 24.05.2006 document as ordered by the trial Court was produced for perusal of the Court and for adjudication, which is on record; but, on the next date of hearing i.e., 25.07.2006, the Court ordered to proceed ex-parte in the matter; meaning thereby, till 24.05.2006, the appellant-defendant was very much before the Court. 10. Upon perusal of the entire record, facts come out that application was filed after delay of one year for the reason that order for proceeding ex-parte was passed in the matter. In my opinion, merely on the basis of presumption, order for proceeding ex-parte against the defendant-appellant was passed, therefore, application filed under Order 9 Rule 13, Civil Procedure Code along with application under Section 5, Limitation Act was to be accepted. The learned trial Court proceeded in the matter in a very strict manner and passed ex-parte decree against the appellant-defendant. 11. Before the Court of law normally litigant should not be thrown out of hearing and is required to be given ample opportunity and, for the same, Courts are required to take lenient view. Of course, if the conduct is found to be contrary, Court may act strictly. In this view of the matter, while accepting the reasons for nonappearance before the Court in this case when ex-parte decree was passed, I am of the opinion, that order impugned dated 20.01.2009 does not deserve to survive. It is settled principle of law that for the lapse on the part of the counsel the litigant should not be made to suffer. 12. Consequently, this appeal is allowed. Order impugned dated 20.01.2009 is set aside and application filed by the appellant-defendant under Order 9 Rule 13, Civil Procedure Code is ordered to be allowed while accepting the application moved under Section 5, Limitation Act for condonation of delay in filing the application for setting aside ex-parte decree. As a result, ex-parte judgment and decree dated 11.06.2006 is set aside with cost of Rs. 2,000/-. The matter is remitted to the trial Court for deciding the suit itself within a period of six months in accordance with law. As a result, ex-parte judgment and decree dated 11.06.2006 is set aside with cost of Rs. 2,000/-. The matter is remitted to the trial Court for deciding the suit itself within a period of six months in accordance with law. Both the parties shall remain present before the trial Court on 15.12.2009.