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2013 DIGILAW 62 (JK)

Kapil Dev v. Raghubir Singh

2013-02-04

MANSOOR AHMAD MIR

body2013
1. Challenge in this appeal is order dated 27.10.2010 passed by Principal District Judge, Kathua whereby and whereunder applications filed by appellant (Kapil Dev-Judgment debtor) for setting aside exparte decree and judgment dated 16.04.2007 and for condonation of delay have been dismissed on the grounds taken in the appeal (for short, impugned order). Brief facts: 2. Respondents (Raghubir Singh and others-decree holders) filed civil suit for recovery of Rs.6.9 lacs with interest @ 12% per annum before District Judge, Kathua, which was decreed in exparte constraining appellant (Kapil Dev) to lay motion under Order 9 Rule 13 Code of Civil Procedure (for short, CPC) along with application for condonation of delay. 3. Plaintiffs-respondents resisted the condonation application by medium of objections, which came to be dismissed vide order dated 27.10.2010 and, consequently, petition under Order 9 Rule 13 CPC was also dismissed being time barred. 4. The moot question arises for consideration in this appeal is whether exparte proceedings were drawn rightly, correctly and legally against the appellant and whether exparte judgment and decree was legal one. In order to marshal out all these facts, it is necessary to examine the trial court records. 5. The suit for recovery was presented before the Court of District Judge, Kathua on 06.11.2004, the summon was issued for service upon appellant (Kapil Dev). Smt. Neelam Sharma, Advocate caused appearance on behalf of appellant on 16.12.2004. Copy of plaint was provided to her with a direction to file written statement and case was posted for hearing on 25.01.2005. As per records as many as ten adjournments were granted to the appellant to file written statement. Vide order dated 30.11.2005, exparte proceedings were drawn against the appellant and plaintiffs were asked to lead evidence. 6. The plaintiffs examined their witnesses right from 28.12.2005 till 09.04.2007, on which date, the evidence of plaintiffs was closed. File was posted for final arguments on 13.04.2007. Learned counsel for the plaintiffs addressed arguments and judgment and decree was made on 16.04.2007 in exparte. 7. Thereafter, appellant laid motions, one for condonation of delay and second for setting aside exparte judgment and decree dated 16.04.2007 under Order 9 Rule 13 CPC. Condonation application came to be dismissed on the ground that appellant failed to carve out sufficient cause for condoning delay. Accordingly, application under Order 9 Rule 13 CPC was also dismissed being time barred. 8. Condonation application came to be dismissed on the ground that appellant failed to carve out sufficient cause for condoning delay. Accordingly, application under Order 9 Rule 13 CPC was also dismissed being time barred. 8. I have gone through the requisite records perusal whereof reveals that learned counsel for the appellant, Smt. Neelam Sharma, caused appearance on behalf of the appellant and sought ten adjournments. Appellant has tried to explain that Neelam Sharma, Advocate was not engaged by him to contest the said suit and had no knowledge about the pendency of the suit and relief sought, but, the appellant has failed to examine the said Advocate as witness, who had sought ten adjournments on his behalf. 9. Process server was examined, who stated that he served summon upon defendant-appellant, which is exhibited at EXTP-3 which contains signature of the appellant that is marked as ‘A’. The said summon also disclosed title of the suit and the relief sought in the suit. It is also mentioned that it was served upon defendant-appellant on 24.11.2004. Appellant (Kapil Dev) has not been able to demolish statement of said Process Server. 10. In this view, I am fortified by the judgment of Apex Court in Sushil Kumar Sabharwal v Gurpreet Singh and others reported in AIR 2002 SC 2370 which has laid down the same principle. 11. The Apex Court in Parimal v. Veena alia Bharti reported in AIR 2011 SCW 1233 held as under:- “12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. 19. More so, it is nobody's case that respondent/wife made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Not a single document had been summoned from the post office. There cannot be a strait-jacket formula of universal application. 19. More so, it is nobody's case that respondent/wife made any attempt to establish that there had been a fraud or collusion between the appellant and the postman. Not a single document had been summoned from the post office. No attempt has been made by the respondent/wife to examine the postman. It is nobody's case that the “National Herald” daily newspaper published from Delhi did not have a wide circulation in Delhi or in the area where the respondent/wife was residing with her brother. In such a fact-situation, the impugned order of the High Court becomes liable to be set aside. 23. In view of the aforesaid statutory requirements, the High Court was duty bound to set aside at least the material findings on the issues, in spite of the fact that approach of the court while dealing with such an application under Order IX, Rule 13 CPC would be liberal and elastic rather than narrow and pedantic. However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte decree. The manner in which the language of the second proviso to Order IX, Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement. 24. The High Court has not set aside the material findings recorded by the trial Court in respect of service of summons by process server/registered post and substituted service. The High Court failed to discharge the obligation placed on the first appellate Court as none of the relevant aspects have been dealt with in proper perspective. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex-parte decree. More so, the High Court did not consider the grounds on which the trial Court had dismissed the application under Order IX, Rule 13 CPC filed by the respondent/wife. The appeal has been decided in a casual manner.” 12. The Apex Court in Office of the Chief Post Master General and others v. Living Media India Ltd. and another reported in AIR 2012 SCW 1812 has also laid down the same principle. 13. The appeal has been decided in a casual manner.” 12. The Apex Court in Office of the Chief Post Master General and others v. Living Media India Ltd. and another reported in AIR 2012 SCW 1812 has also laid down the same principle. 13. In the given circumstances, I am of the considered view that summon was duly served upon the appellant and he had knowledge of pendency of the suit. Appellant had engaged lawyer, namely, Neelam Sharma, who had sought ten adjournments on his behalf as discussed above, thus, had knowledge of pendency of the suit against him. 14. The appellant has not explained the delay. Trial Court has rightly dismissed the application for limitation and consequently dismissed the petition under Order 9 Rule 13 CPC being time barred. It is worthwhile to mention that appellant has not questioned exparte judgment and decree dated 16.04.2007, he has only prayed for setting aside order dated 27.10.2010 by which application for condonation of delay along with application under Order 9 Rule 13 CPC came to be dismissed. 15. Viewed thus, appeal fails and is dismissed as such along with connected CMA(s), if any. 16. Registry to send down the records along with copy of this order.