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Allahabad High Court · body

2012 DIGILAW 2066 (ALL)

Sant Ram and Others v. 1st A. D. J. and Others

2012-09-07

SANJAY MISRA

body2012
Sanjay Misra, J.;— Heard Sri Tripathi B.G. Bhai, learned counsel for the petitioners and Sri P.N. Singh, learned counsel for the private-respondents. Counter and rejoinder affidavits have been exchanged between the parties. This writ petition is directed against the order dated 12.03.1999 passed in Misc. Civil Appeal No.45 of 1994 by the First Additional District Judge, Siddharth Nagar, whereby the Appellate Court has allowed an application under Order 9 Rule 13 CPC filed by the defendant-respondent in Original Suit No.145 of 1992 and remitted the matter back to the Trial Court to decide the suit after hearing the parties. According to Sri Tripathi B.G. Bhai, the Trial Court by the order dated 26.02.1993 had decreed the suit of the petitioner under Order 8 Rule 10 CPC for cancellation of the sale deed dated 28.05.1987. Against the said order the defendant-respondent filed an application under Order 9 Rule 13 CPC for recall of the order but the Trial Court vide its order dated 28.09.1994 rejected the application. According to Sri Tripathi B.G. Bhai, the order of the Trial Court rejecting the application under Order 9 Rule 13 CPC is quite clear where it has been held that the Original Suit No.145 of 1992 had proceeded under Order 8 Rule 10 CPC for failure of the defendant-respondent of filing written statement in spite of several opportunities and, therefore, it could not be held that the judgment dated 26.02.1993 was an ex-parte judgment. He states that the defendant-respondent had filed an application for adjournment being application No.17-Ga which was rejected and after hearing the plaintiff the Trial Court had passed the judgment. According to him, the application under Order 9 Rule 13 CPC was not maintainable against the judgment and decree passed under Order 8 Rule 10 CPC. According to Sri Tripathi B.G. Bhai, the Lower Appellate Court has illegally allowed the appeal filed by the respondent without recording any finding with respect to the ingredients of the Order 9 Rule 13 CPC that the summons were not served or that the defendant-respondent was prevented by sufficient cause from appearing in the case. He states that in the absence of finding on these two ingredients of Order 9 Rule 13 CPC the Appellate Court could not have set aside the order passed by the Trial Court and allowed the restoration application and restored the suit. He states that in the absence of finding on these two ingredients of Order 9 Rule 13 CPC the Appellate Court could not have set aside the order passed by the Trial Court and allowed the restoration application and restored the suit. In support of his submission he has placed reliance on the decision in the case of Jhabarmal Panda Vs. Bhagawati Prasad Kedia, reported in 1990-AIR (Gau)-0-35, Innovation Apartments Flat Owners Association, Secundrabad Vs. Annovation Associates, Secundrabad, reported in 1991-AIR (AP)-0-69, Satya Narayan Sah Vs. Brij Gopal Mundra, reported in AIR 1991 Patna 60 and Om Prakash Gupta Vs. Union of India and another reported in AIR 2000 SCC 3585. He, therefore, argues that the impugned order passed by the Appellate Court requires to be set aside. Sri P.N. Singh, learned counsel for the respondent has filed supplementary affidavit annexing thereto the order-sheet of the Trial Court. He has contested the submission of learned counsel for the petitioner and states that the order dated 08.09.1992 was passed by the Trial Court for proceeding under Order 8 Rule 10 CPC and on that date the next date fixed was 04.11.1992. He refers to the order-sheet to say that on 04.11.1992 the defendant respondent filed an application No.15-Ga for adjournment. The said application was allowed by the Trial Court specifically noting that earlier an order had been passed for proceeding under Order 8 Rule 10 CPC but the application was allowed and 18.12.1992 was fixed for filing written statement. He states that in the said order dated 04.11.1992 the Trial Court specifically recorded that in case the written statement is not filed by 18.12.1992 the matter will proceed under Order 8 Rule 10 CPC. He then refers to the order dated 18.12.1992 and states that the order dated 18.12.1992 clearly states that another adjournment Application No.16-Ga filed by the defendant-respondent for adjournment was allowed. According to him, after the matter was disposed of on 16-Ga which had been allowed for adjournment the Trial Court has recorded that subsequently the counsel for the plaintiff put pressure on the Trial Court for rejecting the application 16-Ga and the Trial Court after recording such circumstance rejected the application 16-Ga which it had allowed earlier in the day and fixed 26.02.1993 for hearing the suit. Sri P.N. Singh has emphasized on the order dated 18.12.1992 and submits that once the adjournment application 16-Ga of the defendant-respondent was allowed the Trial Court could not retract its order behind the back of the counsel for the defendant on the pressure of the counsel for the plaintiff and reject such application. He states that on the very same date the defendant upon coming to know about the contrary orders passed behind his back moved an application 17-Ga which the Trial Court ordered to be fixed on the date fixed which was 26.02.1993. Learned counsel for the defendant- respondent has submitted that on 26.02.1993 the Trial Court proceeded under Order 8 Rule 10 CPC and decreed the suit. According to him, the said order was ex-parte against the petitioner and, therefore, the petitioners application under Order 9 Rule 13 CPC was maintainable. According to Sri P.N. Singh, the judgment dated 26.02.1993 passed by the Trial Court decreeing the suit is not on the basis of any proof of the averments made in the plaint and without any evidence and without requiring the plaintiff to prove his case the decree has been passed which is quite illegal. He has placed reliance on a decision in the case of Akttaryar Khan (Supra) reported in AIR 1994 Allahabad 193. He has also placed reliance on a decision in the case of Gujrat Co-operative Oil Seeds Growers Federation Vs. Smt. Ramesh Kamta Jain, reported in AIR 1994 Delhi 367 in support of his submission. When this writ petition was entertained on 04.05.1999 the following order was passed by this Court. "Heard Sri Tripathi, B.G. Bhai, learned counsel for the plaintiff-petitioners. The petitioners filed Suit No.145 of 1992. It was decreed on 26.02.1993. Against the said order defendant-respondents moved an application, which was registered as Case No.37 of 1993, under Order IX Rule 13 CPC for setting aside the decree dated 26.02.1993 treating it to be an exparte. This application was rejected by the trial court. Against the order of trial court, the defendant filed a Misc. Appeal No.45 of 1994, which has been allowed by appellate court by order dated 12.03.1999 setting aside the decree and restored the suit to its original number. This application was rejected by the trial court. Against the order of trial court, the defendant filed a Misc. Appeal No.45 of 1994, which has been allowed by appellate court by order dated 12.03.1999 setting aside the decree and restored the suit to its original number. The moot point for consideration is whether the decree dated 26.02.1993 which was passed under Order VIII Rule 10 CPC could be set aside by invoking the provisions under Order IX Rule 13 CPC. The controversy which has been raised in this petition requires scrutiny by this Court. Issue notice to the defendant respondent Nos.2 to 4, who may file counter affidavit within six weeks. List thereafter. In the meantime further proceedings in Suit No.145 of 1992 shall not take place". From the submission of learned counsel for the parties as also from the order dated 04.05.1999, it appears that the rival submissions of the parties are on the issue whether the decree dated 26.02.1993 passed under Order 8 Rule 10 CPC could be set aside by invoking the provisions of Order 9 Rule 13 CPC. Before coming on the aforesaid issue raised by the counsel in this writ petition it would be necessary to find out whether the ingredients of the Order 9 Rule 13 CPC were made out by the defendant-respondent in his application for recall of the decree which the defendant-respondent claims was an ex-parte decree. The two main ingredients are that there should be a finding that the summons were not served on the defendant and the second that the defendant was prevented by sufficient cause from appearing in the case. It appears from the record that the suit was filed on 23.03.1992 and the defendant put in appearance and filed an application 14-Ga for being supplied a copy of the plaint. That application was allowed on 10.08.1992 and the matter was fixed for 08.09.1992. On 08.09.1992 the Trial Court passed an order that the defendant-respondent has not filed his written statement and, therefore, the suit has to proceed under Order 8 Rule 10 CPC. It fixed 04.11.1992 as the next date. On 04.11.1992 which was the third date the defendant made an application 15-Ga for time to file written statement. The Trial Court allowed that application and granted time till 18.12.1992. On 18.12.1992 the defendant-respondent filed another application 16-Ga to be given further time to file written statement. It fixed 04.11.1992 as the next date. On 04.11.1992 which was the third date the defendant made an application 15-Ga for time to file written statement. The Trial Court allowed that application and granted time till 18.12.1992. On 18.12.1992 the defendant-respondent filed another application 16-Ga to be given further time to file written statement. That application was allowed on 18.12.1992 by the following order:- @ Hindi @ It is here that the suit proceeded after the Trial Court passed another order on 18.12.1992 on the very same order-sheet which is quoted hereunder:- @ Hindi @ From the aforesaid two orders both dated 18.12.1992 and both passed on the order-sheet it appears that the defendant-respondent's adjournment application 16-Ga was allowed by the Trial Court and subsequently on the same day on the pressure exercised upon the Trial Court by counsel for the plaintiff the Trial Court directed the suit to proceed under Order 8 Rule 10 CPC and fixed 26.02.1993 for hearing. On the very same date the defendant-respondent upon coming to know about the said order moved an application 17-Ga which was directed by the Trial Court to be put up on the date fixed. All these three orders were passed on 18.12.1992 and the date fixed was 26.02.1993. On 26.02.1993 the suit was decreed. The Appellate Court considered this aspect of the matter and has recorded a finding in its order that the Trial Court first accepted the adjournment application No.16-Ga filed by the defendant-respondent and thereafter on the pressure exercised by the counsel for the plaintiff it recalled its order of granting time and fixed the matter for 26.02.1993 on which date it decreed the suit. The finding of the Lower Appellate Court is that the recall order was passed after the application for adjournment of the defendant-respondent had been accepted. The contention of the defendant-respondent is that it was passed behind his back after his application for adjournment has been accepted and he states that when an adjournment application is allowed by the Court and the matter has been adjourned for the day then if such order is to be recalled at the instance of the other parties the adjournment seeker has to be noticed and heard before the order is recalled behind his back. From the record it appears that the order dated 18.12.1992 was passed allowing the adjournment application of the defendant-respondent and after the defendant-respondent went away then on the very same date the Trial Court under pressure of the counsel for the plaintiff petitioner recalled its order of adjournment and fixed a date for final hearing behind the back of the defendant. Clearly, the aforesaid circumstances indicate that the defendant- respondent was deprived of hearing and no notice was given to him before the order passed on his adjournment application was recalled which both were done on the very same date. There is nothing on record of this writ petition to indicate that the subsequent order passed on 18.12.1992 was passed in presence of counsel for the defendant-respondent or the defendant-respondent himself. As such that order was clearly ex-parte. On 26.02.1993 the Trial Court in pursuance of the second part of the earlier order dated 18.12.1992 proceeded to decree the suit ex-parte. A perusal of the ex-parte order also indicates that the averments in the plaint have been recited in short and nowhere it has been recorded by the Trial Court that the plaint averments have been proved by the plaintiff petitioner. As such the said ex-parte judgment is also erroneous and not in accordance with law which has been set aside by the First Appellate Court. In the event a defendant does not file a written statement or does not put in appearance and the matter proceeds ex-parte against him the Trial Court is normally required give reasons for accepting the uncontroverted plaint averments either if they have been proved by the plaintiff or otherwise. However, under Order 8 Rule 10 CPC the provisions is totally different. This provision provides that when a party from whom a written statement is required, fails to present the same within time permitted or fixed by the Court, the Court shall pronounced judgment against him. Therefore, while considering this aspect of the matter it has to be seen whether proceeding drawn up for proceeding under Order 8 Rule 10 CPC was for failure of the defendant to file written statement in spite of time repeatedly granted to him. The facts of this case indicates that time was granted to the defendant-respondent to file written statement on 08.09.1992 and on 04.11.1992. The facts of this case indicates that time was granted to the defendant-respondent to file written statement on 08.09.1992 and on 04.11.1992. On 18.12.1992 further time was allowed to him on his application 16-Ga but subsequently the order allowing the application for adjournment and time was recalled by the Trial Court on the very same day behind the back of the defendant-respondent. The said conduct of the Trial Court appears to be quite arbitrary and not in accordance with law. He could not recall his order of granting adjournment by allowing the application 16 Ga on the same date behind the back of the defendant-respondent. He could have considered the submission of the plaintiff for recalling the order granting time only in the presence of the defendant-respondent or his counsel. In fact what the Trial Court has written in the order is that under acute pressure of the plaintiff's counsel he is recalling the order. Clearly, recall of the order granting time to the defendant on the very same date behind his back was an ex-parte order. He could not pass an ex-parte order on pressure of the plaintiffs counsel behind the back of the defendant-respondent when on the very same date he had allowed the adjournment application of the defendant-respondent. As such, the proceedings have been conducted ex-parte against the defendant-respondent due to an order passed behind his back and was the reason which prevented him from appearing in the suit. The ingredients under Order 9 Rule 13 CPC are clearly made out in this case. Learned counsel for the petitioner has relied upon a decision in the case of Jhabarmal Panda Vs Bhagwati Prasad Kedia AIR 1990 (Gauhati) 35 and refers to paragraph 8 therein. This decision is clearly not of any help to him since it relates to maintainability of an appeal against an order passed under Order 8 Rule 10 CPC. He has also referred to a decision in the case of Innovation Apartments Flat Owners Association, Secundrabad Vs Annovation Associates, Secundarabad AIR 1991 AP 65. This decision is actually against the submission made by learned counsel for the petitioner-plaintiff. He has also referred to a decision in the case of Innovation Apartments Flat Owners Association, Secundrabad Vs Annovation Associates, Secundarabad AIR 1991 AP 65. This decision is actually against the submission made by learned counsel for the petitioner-plaintiff. Paragraphs 6 and 7 of the judgment are quite clear in the view taken by a learned Single Judge of the High Court of Andhra Pradesh and are quoted here under:- "The decision reported in Kuvarp Industries, Bangalore Vs State Bank of Mysore, AIR 1985 Kant 77 is a case where after granting 8 adjournments the Court adjourned the suit finally for filing written statement to a certain date. On that date, the defendants did not file the written statement and when their lawyer wanted to file application for better particulars, the Court did not permit him to do so and posted the suit later on, on the same date, for filing written statement; later when no written statement was filed and the defendants were absent when called, the Court set them exparte and judgment and decree were passed under O.8, R. 10, C.P.C. On the said particulars it is observed as follows (Paras 7 and 10) :- "Therefore, the insertion of the word 'decree' in R. 10 now, in my opinion, is meant to give an alternate relief to the party under O.9, R. 13, C.P.C., instead of driving him to a Regular Appeal which would involve a lot of expense and energy and the decision of which matter may take unnecessarily longer time. ".........Therefore, in the result, I find that the judgment and decree contemplated under O.8, R. 10, C.P.C. amount to an ex parte judgment and ex parte decree and thus attract O.9, R. 13, C.P.C. Also." "Apart from these two decisions, no other decision on this point is brought to my notice. As rightly observed in those two decisions and as can be seen from the wording of R. 13 of O.9, C.P.C. The provisions of O.9, R. 13 can be invoked in any case in which a decree is passed ex parte and the question whether the ex parte decree was passed in view of non-filing of the written statement or otherwise is of no consequence. The objective in doing so is to avoid driving the parties to file a regular appeal involving a lot of expenditure and waste of time. The objective in doing so is to avoid driving the parties to file a regular appeal involving a lot of expenditure and waste of time. Thus I find that this is a case squarely coming within the four corners of O.9, R. 13, C.P.C. Accordingly I find this point in favour of the appellant." The Patna High Court in the case of Satya Narayan Sah Vs Brij Gopal Mundra AIR 1991 Patna 60 however held that when a decree is passed under Order 8 Rule 10 CPC then an application under Order 9 Rule 13 CPC would not be maintainble. In Om Prakash Gupta Vs Union of India and Another AIR 2000 SC 3585 the Hon'ble Supreme Court was considering a case where inspite of time granted the defendant did not file any written statement for more than two years and when further adjournment was refused by the Trial Court the High Court passed an order dated 12.01.1999 allowing further time. The Supreme Court set aside the order of the High Court and allowed the application under Order 8 Rule 10 CPC. The respondent has placed reliance on a Division Bench judgment of the Delhi High Court in Gujrat Cooperative Oil Seed Growers Federation Vs Smt. Ramesh Kanta Jain AIR 1994 Delhi 367 where it was held that an application under Order 9 Rule 13 CPC would be maintainable against an order passed under Order 8 Rule 10 CPC. The respondent has relied upon a decision of this court in the case of Akttaryar Khan Vs Azahar Yar Khan AIR 1994 Allahabad 193. This was a case where the court held that where the defendant was not granted time to file written statement and he was only permitted to file written statement then the provisions of Order 8 Rule 10 CPC did not apply and hence the application under Order 9 Rule 13 CPC was maintainable against the exparte decree. The facts and circumstances of the case in hand undoubtedly indicate that on 18.12.1992 the defendant-respondent was granted time to file written statement. On the same date when he went away due to the adjournment of the case the Court passed a further order recalling its earlier order granting adjournment. The facts and circumstances of the case in hand undoubtedly indicate that on 18.12.1992 the defendant-respondent was granted time to file written statement. On the same date when he went away due to the adjournment of the case the Court passed a further order recalling its earlier order granting adjournment. This further order was passed behind the back of the defendant-respondent hence it was an order to proceed under Order 8 Rule 10 CPC although the defendant-respondent's application for adjournment was allowed on the same day. Clearly, the trial court had acted illegally. He could not recall an order without notice to the defendant-respondent. By allowing the adjournment application the trial court had adjourned the suit for the day. It could not proceed with the suit on that very day. The defendant-respondent was under a bonafide belief that the case has been adjourned. Even his application 17-Ga was not dealt with by the trial court and it decreed the suit on 26.02.1993 under Order 8 Rule 10 CPC. Therefore both the ingredients of Order 9 Rule 13 CPC were made out and the application was maintainable. The appellate court has rightly allowed the appeal of the defendant-respondent. This is not a case of simplicitor failure of the defendant-respondent to file written statement within the time fixed because the case was adjourned on 18.12.1992 and once it was adjourned it could not have proceeded under Order 8 Rule 10 CPC to pronounce judgment against the defendant-respondent. The judgment dated 26.02.1993 was therefore an ex-parte judgment not covered under a judgment under Order 8 Rule 10 CPC. In view of the aforesaid circumstances, the Appellate Court has rightly allowed the appeal filed by the defendant-respondent and there is no error therein. The writ petition has no merit. It is accordingly dismissed. No order as to costs. _____________