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Jharkhand High Court · body

2009 DIGILAW 853 (JHR)

Sri Anand Kumar Jaiswal v. Sarju Prasad Singh

2009-05-28

D.G.R.PATNAIK

body2009
ORDER JUDGMENT: Challenge in this writ application is to the order dated 05.01.2008 (Annexure7) passed by the learned Additional Munsif, Hazaribagh in Eviction Suit No. 09 of 2003, whereby the prayer of the respondent no. 3 under Order 9 Rule 7 of the Code of Civil Procedure for setting aside the ex-parte order, was allowed. 2. The petitioner / plaintiff filed a suit for eviction of the defendants, all sons of Late Mussadi Singh, from the suit premises under the provisions of Bihar Building (Lease, Rent and Eviction) Control Act, 1982. 3. While the defendant no. 2 appeared and filed his written statement, the defendants 1 and 3 refused to receive summons issued through Registered Post. Thereafter, notice was published in the local newspaper. When in spite of newspaper publication, the defendants 1 and 3 did not appear, the court by order dated 23.12.2003, fixed the suit for ex-parte hearing against the defendant nos. 1 and 3. 4. The petitioner / plaintiff thereafter filed a petition under section 15 of the Rent Control Act for directing the defendants to deposit arrears as well as current rent. 5. By order dated 05.10.2005, the contesting defendant no. 2 was directed by the court below to deposit arrears as well as current rent. 6. Against the aforesaid order, the defendant no. 2 preferred a writ application vide W.P.(C) No. 6692 of 2005. The writ application was disposed of with modification in the order of the court below dated 05.10.2005 to the extent that the order for depositing arrears as well as the current rent, shall be applicable not only to the defendant no. 2, but also to the defendant no. 3 and both of them shall be jointly liable for payment of arrears as well as current and future rent. While disposing of the writ application, this court had also directed the defendant no. 2 to serve a copy of the order on the defendant no. 3 and to obtain a receipt in writing of such service. 7. In stead of depositing the rent, the defendant no. 2 filed a petition on 22.6.2006 stating that the defendant no. 3 is not sharing his liability for payment of rent and had prayed for splitting his liability. Upon his prayer being rejected by the learned court below, the defendant no. 7. In stead of depositing the rent, the defendant no. 2 filed a petition on 22.6.2006 stating that the defendant no. 3 is not sharing his liability for payment of rent and had prayed for splitting his liability. Upon his prayer being rejected by the learned court below, the defendant no. 2 filed a writ petition being W.P.(C) No. 6005 of 2006 before this court which was dismissed. 8. Consequent upon the failure of the defendant no. 2 to deposit rent, by order dated 15.09.2007 passed by the trial court, defence of the defendants was struck off. 9. Almost, three months later i.e. on 11.12.2007, the defendant no. 3 made his entry in the suit by filing a petition purported to be under Order 9 Rule 7 of the CPC, praying for allowing him to contest the suit by filing his written statement after setting aside the ex-parte order. 10. The petitioner / plaintiff offered his contest on the ground that the defendant no. 3 being an Advocate’s Clerk of the Civil Court, Hazaribagh, was all along aware of the institution and pendency of the suit against him and had intentionally failed to appear in the suit in spite of such knowledge.. 11. The learned Munsif by its impugned order, allowed the petition of the defendant no. 3 by recording its observations as follows:-“5. It is manifest that the Hon’ble High Court vide order passed in W.P.(C) No. 6692/05 directed the defendant no. 2 as well as the plaintiff to communicate the order of the Hon’ble Court to the defendant no. 3 and obtain a receipt in writing but neither the defendant no. 2 nor the plaintiff has obtained and filed any such receipt in writing by the defendant no. 3. But the defendant no. 2 who is own brother of the defendant no. 3 and said to be residing jointly in the suit premises, had filed a petition on 22.6.06 that he had informed the defendant no. 3 about the order of the hon’ble court but the defendant no. 3 was not ready to share liabilities with the defendant no. 2. Further more the perusal of record clearly shows that the defendant no. 3 has refused to receive summons sent through registered post and in spite of this fact paper publication was done by the plaintiff but again the defendant no. 3 was not ready to share liabilities with the defendant no. 2. Further more the perusal of record clearly shows that the defendant no. 3 has refused to receive summons sent through registered post and in spite of this fact paper publication was done by the plaintiff but again the defendant no. 3 did not appear so certainly the defendant no. 3 had got knowledge of the suit but he did not appear at the proper time. But now the defendant no. 3 has appeared and desires to contest the suit, so, in my considered opinion, in order to deliver substantial justice between the parties on the merit of the suit after hearing both parties, a chance should be given to the defendant no. 3 to contest the suit. I am also of the view that harassment if any caused to the plaintiff by the act of the defendant no. 3 can be compensated in terms of money but if the defendant no. 3 is left unheard it may cause serious prejudice to him. In the result, I allow the petition dated 11.12.07 filed on behalf of the defendant no. 3 subject to payment of a cost of Rs. 1000/-(Rupees one thousand only) by the defendant no. 3 to the plaintiff. The order dated 23.12.03 is set aside in respect of the defendant no. 3 only and the defendant no. 3 is allowed to contest the suit by filing his written statement. The defendant no. 3 is also allowed to deposit arrear and current rent as well as future rent in compliance of the order of the Hon’ble Court. 3 Put up on 2.1.08 for compliance of the order”. 12. Admittedly, the order of ex-parte hearing against the defendant nos. 2 and 3 was passed in the suit on 23.12.2003 after the trial court was satisfied that the notice on the defendants was duly served by way of substituted service. The defendant no. 3 filed his appearance for the first time on 11.12.2007 i.e. after about four years from the date of ex-parte order. The only ground advanced by him for his failure to appear in the suit on the date of hearing, was that the summon was not served upon him. Learned Court below has recorded its observations that in its opinion, the defendant no. The only ground advanced by him for his failure to appear in the suit on the date of hearing, was that the summon was not served upon him. Learned Court below has recorded its observations that in its opinion, the defendant no. 3 had prior knowledge about the suit, but he did not appear in the suit on the date when the case was fixed. The impugned order indicates that the learned Munsif did not accept the grounds stated by the defendant no. 3 as a valid, satisfactory and good ground. Yet, the learned Munsif has allowed the prayer of the defendant no. 3 to allow him to contest the suit in order to deliver “substantial justice to the parties”. 13. Learned counsel for the petitioner would argue that the learned court below having itself accepted that the ground pleaded by the defendant no. 3 was incorrect and misleading in as much as, summon was duly served upon the defendant no. 3, yet despite knowledge of the date of hearing, he had not appeared, the learned court below could not have thereafter, allowed the prayer of the defendant no. 3 to contest the suit. 14. The provision of Order 9 Rule 7 of the CPC offers a very wide discretion upon the learned Trial Court. Rule 7 cannot be read to mean that defendant cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared. He cannot be stopped from participating in the proceeding simply because he did not appear in the first or some other hearing. He will have to show good cause for his previous absence, only if he desires to be relegated back to the position in which he would have been put if he had appeared at the previous hearings, so that the proceedings in his absence could be reopened. Thus, Rule-7 invests the court with the widest possible discretion to accept a written statement even where a defendant who was declared ex parte for previous absence, assigns good cause. In other words, where the defendant wants to be relegated back to the position in which he would have been put if he had appeared at the previous hearings, he has to assign “good cause”. In other words, where the defendant wants to be relegated back to the position in which he would have been put if he had appeared at the previous hearings, he has to assign “good cause”. Where the defendant fails to assign good cause or the reasons assigned are not accepted by the court, the discretion vested in the court becomes narrow. The court would not then be bound to accept the written statement in absence of reasonable and acceptable explanation offered by the defendants. The conduct of the defendants is a relevant factor to be taken into account for considering his application for setting aside the ex parte order. The act of the parties in filing an application for setting aside the ex parte order belatedly, would show that he is only interested in dragging the proceeding, and such conduct should not be allowed by the court. 15. As it appears from the facts of the case, during the period of almost four years of the absence of the defendant no. 3 after the date of ex parte order passed against him, substantial developments had taken place in the suit. Significant amongst these developments is the order striking of the defence of the contesting defendant on his failure to comply with the order passed by the court for depositing the arrears as well as current monthly rents. Setting aside the ex parte order after four years and allowing the defaulting defendant to file his written statement and contest the suit amounts to relegating him back to the position in which he would have been put if he had appeared at the time at the previous hearings. This would amount to reopening of the proceedings and create an anomalous situation vis-à-vis the defendant no. 2 against whom the order striking of defence was passed and the same continues to stand and to whom the benefits of extending the period for depositing the arrears as well as current rent was refused by the trial court.. 16. In such view of the matter, instead of giving substantial justice, the court would deny to the plaintiff the benefits which had accrued to him legally on account of the lapses of the defendants. 17. In the light of the above discussions, the impugned order, in my opinion, is perverse and without application of judicial mind and cannot be sustained. In such view of the matter, instead of giving substantial justice, the court would deny to the plaintiff the benefits which had accrued to him legally on account of the lapses of the defendants. 17. In the light of the above discussions, the impugned order, in my opinion, is perverse and without application of judicial mind and cannot be sustained. Accordingly, the impugned order dated 05.01.2008 (Annexure-7) passed by the learned Additional Munsif, Hazaribagh in Eviction Suit No. 09 of 2003, is hereby set aside. However, the defendant no. 3 shall be allowed to take part in the proceedings from the stage already reached. The learned court below may, in its discretion, pronounce judgment under Order 8 Rule 5(2) of the CPC, allowing the defendant no. 3 just to submit his argument on the plaint.