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2012 DIGILAW 497 (JK)

Gh. Mohammad Beigh & Ors. v. Mst. Gashi & Ors.

2012-08-13

MOHAMMAD YAQOOB MIR

body2012
1. Suit titled Mst. Gasi & ors Vs. Ghulam Mohammad Beigh & ors. is pending on the file of learned 3rd Additional Munsiff, Srinagar. Petitioners (hereinafter referred to as the defendants) have remained absent during the course of the suit proceedings so have been proceeded in ex-parte vide order dated 05.02.2011. Application filed for setting aside ex-parte proceedings has been dismissed. Aggrieved thereof, petitioners had filed appeal which has been decided by learned 2nd Additional District Judge, Srinagar vide order dated 08.06.2012 (wrongly shown to have been announced on 8.8.2012) by holding that appeal against said order is not maintainable. 2. The order is not also revisable in view of amended Section 115 of the Code of Civil Procedure that is why the petitioner has chosen to file this writ petition so as to invoke powers under Section 104 of the State Constitution read with Article 227 of the Constitution of India. 3. Learned counsel for the defendants projected that in case ex- parte proceedings are not set aside, defendants will be subjected to injustice. 4. No doubt defendants had failed to appear before the trial court but default in appearance is explained in the application by stating that the defendants had engaged an advocate who had to appear, they had no knowledge about non-appearance of their counsel. 5. Cause for non-appearance on the appointed dates of hearing must be cogent but same is to be liberally construed so as to advance cause of justice. Pedantic approach in construing the expression “sufficient cause” shall not be in-keeping with the interests of justice. Supervisory power has to be exercised so as to advance cause of justice and also to see that the Courts function within their limits. 6. Power of revision exercisable under Section 115 of CPC after amendment to the proviso has undergone drastic change i.e. only such orders can be examined in revision which are final in its operation or, order, if would have been in favour of the revisionist would result in termination of the suit proceedings. 6. Power of revision exercisable under Section 115 of CPC after amendment to the proviso has undergone drastic change i.e. only such orders can be examined in revision which are final in its operation or, order, if would have been in favour of the revisionist would result in termination of the suit proceedings. This position has been clearly settled by the Hon’ble Apex Court in the judgment captioned Surya Dev Rai vs. Ram Chander Rai & ors, reported in (2003) 6 SCC 675 , wherein it has also been made clear that supervisory powers of the High Court by amendment in Civil Procedure Code have not been taken away but for exercise of such power an exceptional case has to be set up so as to undo the injustice. 7. Perusal of the interim orders recorded by the trial court would suggest that the suit has been instituted on 24th March, 2008, written statement has been filed on 10th July, 2008. From 6.9.2008 till 6th May, 2010, for the reasons reflected in the interim orders, there have been no effective proceedings. Then on 6th May, 2010 preliminary statements of the parties have been recorded, then again no effective proceedings and then on 5th February, 2011 defendants have been proceeded in ex-parte. Then again no effective proceedings except dismissal of application for setting aside ex-parte proceedings which would suggest that after the defendants have been proceeded in ex- parte, even a single witness has not been produced by the respondents (plaintiffs). In the given set of circumstances to deprive the defendants from contesting the suit will cause miscarriage of justice. 8. The trial court is expected to exercise complete control over the proceedings. It is a sad affair that from 24th March, 2008 till 2nd July, 2012 the trial of the suit has not progressed the way it should have progressed. It is a case where supervisory power has to be exercised. The order rejecting application for setting aside ex-parte proceedings, in the aforesaid background, is not sustainable, as such, set aside. Ex- parte proceedings as against defendants initiated vide order dated 05.02.2011 are set aside. 9. Since preliminary statements of the parties have been recorded, the trial court shall proceed in the matter strictly in accordance with the procedure prescribed under Code of Civil Procedure and to ensure expeditious trial of the suit. Ex- parte proceedings as against defendants initiated vide order dated 05.02.2011 are set aside. 9. Since preliminary statements of the parties have been recorded, the trial court shall proceed in the matter strictly in accordance with the procedure prescribed under Code of Civil Procedure and to ensure expeditious trial of the suit. Setting aside of the ex-parte proceedings as against defendants shall be subjected to deposit of Rs.5000(five thousand) as costs payable to the respondents (plaintiffs). The amount of costs shall be deposited by or before next date which is fixed as 22nd August, 2012 before the trial court. In default, trial court order impugned shall remain in operation. The parties shall ensure their presence before the trial court on the date fixed. 10. Registry shall ensure that copy of the order along with trial court record reaches the trial court well before the date fixed. 11. Disposed of as above along with connected CMP. 12. Detention records, as produced, be returned to the learned counsel for the respondents.