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Allahabad High Court · body

2013 DIGILAW 2089 (ALL)

Sant Raji v. Ganga Ram

2013-08-12

RITU RAJ AWASTHI

body2013
JUDGMENT Ritu Raj Awasthi, J. Heard learned counsel for appellants and perused the records. 2. No one has put in appearance on behalf of respondents in spite of sufficient service. 3. The First Appeal From Order arises against the judgment and award dated 19.7.1991 passed in Civil Misc.Case No. 46 of 1990 (Chauti & others Vs. Ganga Ram & others). 4. Learned counsel for appellants submits that a suit for possession was filed by the present respondents which was dismissed vide judgment and order dated 31.1.1982. The first appeal against the said judgment was filed by the respondents which was registered as Civil Appeal No. 427 of 1982 (Lal Bihari & others Vs. Somai & others). The present appellants being? respondents in the said first appeal had put in appearance before the first appellate court. 5. It is submitted that the said appeal was dismissed in default on 30.5.1988. Thereafter an application was moved under Order 41, Rule 19 C.P.C. which was allowed vide order dated 24.9.1988. 6. It is further submitted that after the appeal was re-admitted the notice was required to be issued to the present appellants-respondents, however no such notice was issued or served. Learned Court below, however had proceeded to decide the said appeal and vide order dated 17.3.1990, the appeal was allowed ex parte. 7. The present appellants after coming to know about the said fact had moved an application under Order 41, Rule 21 C.P.C. for recall of the order dated 17.3.1990 and re-hearing of the appeal. The learned Court below, however in a most illegal manner had rejected the said application vide impugned order dated 19.7.1991. The present First Appeal From Order has been filed against the said order dated 19.7.1991. 8. It is also submitted that the Division Bench of this Court in the case of Long Life Carpet Industries Vs. Smt. Kesar Jahan, LCD 1988 (6) 604 has held that in case the suit has been dismissed in absence of both the parties, after restoration of suit the defendants have a right, and entitled to notice of hearing of the suit. 9. It is further submitted that in such matters a lenient view is required to be taken by the Court as has been held by the Apex Court in the case of Ramji Dass and others Vs. Mohan Singh, ARC 1978? 9. It is further submitted that in such matters a lenient view is required to be taken by the Court as has been held by the Apex Court in the case of Ramji Dass and others Vs. Mohan Singh, ARC 1978? 496, wherein it has been said that discretion of the Court should be exercised in favour of hearing and not to shut out the hearing.? 10. I have considered the submissions made learned counsel for? appellants and gone through the records. 11. The learned Court below while deciding the application moved under Order 41, Rule 21 C.P.C. has observed that on 19.8.1987 the appellants (present respondents)? were present along with their counsel, however no one had appeared on behalf of the respondents (present appellants), as such, the appeal is being listed for hearing ex parte. It was since then that the appeal was being listed for ex parte hearing and on 13.3.1990 it was heard ex parte. 12. It is also observed by the learned court below that it appears from the record that the appeal was restored on 1.10.1988 in pursuance of the order dated 24.9.1988. The appeal was in fact dismissed in default on 29.5.1988 and before that it was being listed for ex parte hearing. 13. The learned Court below has come to the conclusion that since the appeal was being listed for ex parte hearing, as such, notice to the present appellants (respondents before the first appellate court) was not necessary while restoring the case. The application, as such, moved under Order 41 Rule 21 C.P.C. is liable to be rejected. 14. In the case of Long Life Carpet Industries (Supra), the Court had taken the view that the defendants are entitled to get notice of hearing of suit after the suit was restored considering the fact that the defendants were duly represented in the suit and they were appearing before the Court concerned. The relevant paragraphs 3 and 4 of the judgment on reproduction read as under: "3. The sole point for consideration in this case is whether the learned Civil Judge was right in holding that it was not necessary to serve notices on the defendants on the date of hearing of the case after restoration. The dismissal under Order 9, Rule 3 CPC was in absence of both the parties. The sole point for consideration in this case is whether the learned Civil Judge was right in holding that it was not necessary to serve notices on the defendants on the date of hearing of the case after restoration. The dismissal under Order 9, Rule 3 CPC was in absence of both the parties. Thereafter when the application for restoration was made by the plaintiff under Order 9, Rule 4 CPC, at that stage the defendants may not claim issue of notice to them as of right but when the Court restored the suit to file on 22.12.1986 on application filed by the plaintiff and fixed another date of hearing in the suit, in fact, in absence of any notice being issued to the defendants of the date fixed in the case after restoration they could have no means of knowledge about the date fixed in the case or that even the application for restoration has been allowed. When the defendant-appellants came to know on inquiry on 22.10.1986 that the suit had been dismissed under Order 9, Rule 3 for default, they could not anticipate when an application for restoration would be made and allowed. If such an application has been moved and allowed, it appears to be very inequitable that the defendants should not have notice of the date fixed for hearing. It has been held in the case of Mool Chand V. Ganga Sahai, (AIR 1933 All. 522) that when the plaintiff is allowed second chance by having the application for restoration granted, it appears to very inequitable that the defendants should not have any notice of the date fixed for hearing and that the defendant is, as of right, entitled to notice of hearing of the suit. The same view has been taken in Ramchandra Ramaji Khatik V. Sahadeo Koshti, (AIR 1945 Nag. 185) that it is but equitable to hold that the Court should fix the case after hearing the parties and give notice of hearing to the other side and that it does not stand to reason that even after the Court restores a suit to its original number and fixes another date of hearing the defendant should not be given notice of the hearing of the suit. We are in respectful agreement with the view taken in the cases referred to above. 4. We are in respectful agreement with the view taken in the cases referred to above. 4. The learned counsel for the respondent has placed reliance on a case Babu Vs. Dewan Singh and others, AIR 1952 All 749 where it has been held that where a suit is dismissed under Order 9, Rule 3 and is restored under Rule 4, the latter rules does not lay down that before the suit is restored a notice should be given to the defendant and the Court commits no illegality in giving no notice to the defendant of the date fixed for recording ex parte evidence. With great respect we feel that the view taken in Babu Vs. L. Dewan Singh (supra) is too technical view as this view in some cases may result in passing a decree against the defendant behind his back without being afforded any opportunity of hearing to him. It is not conceivable that after the application for restoration moved by the plaintiff was allowed under Order 9, Rule 4 CPC and the Court fixed another date for hearing the defendant could not possibly come to know of the date fixed by the Court for hearing unless he was given notice of the date fixed in the case. This would practically amount to passing of a decree against a party without giving him any opportunity of hearing which is against all canons of justice and equity." 15. In the present case the present appellants (respondents before the learned Court below) had surrendered their rights to contest as the Court below vide order dated 19.8.1987 had proceeded to hear the appeal ex parte.? The appeal was being listed for ex parte hearing when it was dismissed in default and subsequently restored. 16. As such, I am of the view that the law laid down by the Division Bench in the case of Long Life Carpet Industries (Supra) is not applicable in the facts and circumstances of the present case. 17. So far as the judgment of the Apex Court in the case of Ramji Dass and others (Supra) is concerned, it is only the opinion of the Court in the facts and circumstances of that particular case and no law has been laid down by the Apex Court. 17. So far as the judgment of the Apex Court in the case of Ramji Dass and others (Supra) is concerned, it is only the opinion of the Court in the facts and circumstances of that particular case and no law has been laid down by the Apex Court. It will depend on the facts and circumstances of each individual case as to whether some lenient view is required to be taken for providing opportunity of hearing to the parties or not. However no law can be said to be applicable to say that the appellants-respondents had a right of notice and re-hearing in a matter which was being proceeded ex parte when it was dismissed in default and thereafter restored. The position would be that the case would be restored to the same position at which it was at the time of dismiss in default. 18. In the present case, the appeal was being listed for ex parte hearing, as such I am of the considered view that the application moved under Order 41, Rule 21 C.P.C. was rightly rejected by the Court below. 19. There is no infirmity or illegality in the order impugned. 20. The appeal being devoid of merits is dismissed. 21.The interim order, if any, stands vacated.