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2015 DIGILAW 1306 (JHR)

Nand Kishore Sah v. Lalan Sah

2015-10-15

SHREE CHANDRASHEKHAR

body2015
JUDGMENT : Aggrieved by order dated 17.04.2012 in Civil Miscellaneous Appeal No. 5 of 2012, the present writ petition has been filed. 2. The petitioner was plaintiff in Title (Declaration) Suit No. 9 of 2002. In the suit one Lalan Sah was defendant no. 12. The defendant nos. 1 to 4, 6 and 8 to 13 filed a common written statement. After the plaintiff's evidence was closed, the defendants failed to adduce evidence though, several opportunities were granted by the trial court. Finally, the defendants' evidence was closed vide order dated 03.06.2011. The trial court decreed the suit vide judgment and order dated 26.07.2011. The decree was sealed and signed on 03.08.2011. The defendant no. 12 preferred Title Appeal No. 37 of 2011 against the judgment and order passed in Title (Declaration) Suit No. 9 of 2002 however, he filed an application for withdrawing the appeal. The said application was allowed on 25.11.2011 and thereafter, the defendant no. 12 (respondent no. 1 herein) filed a petition under Order IX Rule 13 CPC for setting aside judgment and order dated 26.07.2011 and decree dated 03.08.2011. The said application was registered as Miscellaneous Case No. 6 of 2011. The Miscellaneous Case was dismissed on 13.07.2012, against which the respondent no. 1 filed Civil Miscellaneous Appeal No. 5 of 2012. The appeal preferred by respondent no. 1 has been allowed vide order dated 17.04.2012. Aggrieved, the petitioner has approached this Court. 3. Heard the learned counsel for the parties. 4. Mr. K. P. Deo, the learned counsel for the petitioner submits that the defendant no. 12 along with other defendants filed written statement and cross-examined the plaintiff's witnesses. The trial court granted sufficient opportunity to the defendants for adducing evidence however, the contesting defendants failed to adduce evidence and consequently, defendants' evidence was closed on 03.06.2011 and therefore, it cannot be contended that judgment and order dated 26.07.2011 is an ex-parte order. It is contended that the defendants who contested the suit which was decreed “on contest” against the defendant nos. 1 to 4, 6 and 8 to 13, cannot maintain application under Order IX Rule 13 CPC. 5. It is contended that the defendants who contested the suit which was decreed “on contest” against the defendant nos. 1 to 4, 6 and 8 to 13, cannot maintain application under Order IX Rule 13 CPC. 5. Relying on decision in “Lalit Chandra Das and others vs. Sushil Chandra Guha and another” AIR 1980 Calcutta 148 and decision in “Satya Narayan Sah vs. Brij Gopal Mundra” AIR 1991 Patna 60, it is empathetically contended that the judgment in Title (Declaration) Suit No. 9 of 2002 is not exparte judgment and therefore, Miscellaneous Case No. 6 of 2011 was not maintainable. 6. As against the above, the learned counsel for the respondent no. 1 refers to paragraph no. 7 in the judgment in Title (Declaration) Suit No. 9 of 2002 and submits that the judgment in the suit is an exparte order. It is not on the merits of the matter. The defendant no. 12 (respondent no. 1 herein) has taken a specific plea that due to illness he could not prosecute the case and thus, the finding recorded by the trial court that the Miscellaneous Case is not maintainable is patently erroneous. The appellate court has rightly considered the plea taken by the respondent no. 1 and remanded the matter for a fresh consideration on merits. 7. I have carefully considered the submissions made on behalf of the parties and perused the documents on record. 8. In Title (Declaration) Suit No. 9 of 2002, the respondent no. 1 was defendant no. 12. As noticed above, a common written statement was filed by the defendants except, defendant nos. 5, 14 and 15 in which the defendants did not accept the genealogy described in the plaint. The defendants also disputed the assertion of jointness with Sital Prasad Sah. It was contended that Sital Prasad Sah was separate from Ram Prasad Sah and Govind Prasad Sah prior to Mc. Pherson Settlement. Other assertions in the plaint were also disputed by the defendants. It was specifically averred that Sital Prasad Sah was the ancestor of these defendants who purchased the entire Jote of mouza Sukhbadia in auction sale on 23.08.1922 in Certificate Case No. 272 of 1920 from the court of Deputy Commissioner, Deoghar. The learned counsel for the petitioner has given a description of the examination of the plaintiff's witnesses asserting that P.W. 1 was cross-examined by the defendant no. The learned counsel for the petitioner has given a description of the examination of the plaintiff's witnesses asserting that P.W. 1 was cross-examined by the defendant no. 12 on 09.11.2009; P.W. 2 was cross-examined on 25.12.2009; P.W. 3 was cross-examined on 27.01.2010; P.W. 4 was also cross-examined on 09.02.2010; P.W. 5 was cross-examined on 09.04.2010 and P.W. 6 was cross-examined on 23.07.2010 as well as on 25.08.2010. The trial court fixed as many as 13 dates for defendants' evidence however, the defendants could not produce any witness and consequently, vide order dated 03.06.2011 defendants evidence was closed and the case was fixed for hearing. It has been pleaded on behalf of the plaintiff that defendant no. 12 never challenged order dated 03.06.2011 and the suit was decreed “on contest” against defendant nos. 1 to 4, 6 and 8 to 13. The trial court while discussing the evidence led on behalf of the parties has observed as under : “In the instant suit only one side of coin is before this court because contesting defendant have not adduced any evidence either documentary or oral who are defendant nos. 1 to 4, 6 and 8 to 13, they have simply filed their W.S., so, the pleadings in absence of proof or evidence is not considerable at all. Thus, only the case of plaintiff is before this court supported with evidence.” 9. Order IX Rule 13 CPC provides that, “In any case in which a decree is passed exparte against a defendant, he may apply to the court by which decree was passed for an order to set it aside”. What can be said to be exparte decree is amply reflected in Rule 13 itself. It provides that if the defendant satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called for hearing, the Court shall make an order setting aside decree as against him. There thus, cannot be doubt that in the case where either summons was not duly served or where a party could not appear on the date fixed, the decree passed would be an exparte decree. There thus, cannot be doubt that in the case where either summons was not duly served or where a party could not appear on the date fixed, the decree passed would be an exparte decree. There may be a case in which the defendant after leading evidence fails to appear however, the trial court renders its judgment without considering the evidence produced by the defendant, such judgment and order would also be ex-parte order. 10. In the application dated 28.11.2011 the defendant no. 12 has asserted that he was the main Pairvikar in Title Suit No. 9 of 2002. He is an old person suffering from several ailments, and he could not attend the court proceedings, subsequently. He further asserted that he was bedridden from 22.11.2010 to 7.8.2011, and he was restrained from attending the court due to his long illness. 11. Order XVII Rule 2 provides that, on the date fixed for hearing of the suit or any other date to which the hearing was adjourned, if a party fails to produce evidence the trial court may proceed in the manner prescribed under Order IX CPC. 12. In “B. Janakiramaiah Chetty vs. A.K. Parthasarthi and Ors”, (2003) 5 SCC 641 , a suit was filed against police officials claiming damages on the allegation that the plaintiff, a businessman was subjected to torture by the defendants. A written statement was filed and after the evidence on behalf of the parties was closed, the matter was posted for arguments. In the meantime, applications for adducing additional evidence were filed however, in the meantime, suit was called for final hearing and in absence of the defendants, a decree was passed. The application under Order IX Rule 13 C.P.C. filed by the defendants for setting aside the decree and order was resisted by the plaintiff asserting that Order IX Rule 13 C.P.C. was not applicable because the matter was decided on merits and the decree was not exparte. The stand taken by the plaintiff was rejected by the Hon'ble Supreme Court observing as under: “12. This clearly has imprints of an ex parte adjudication and not of a decision on merits. There is not even any indication as to what evidence was evaluated and/or whether the merits were tested. 13. The matter can be looked at from another angle. This clearly has imprints of an ex parte adjudication and not of a decision on merits. There is not even any indication as to what evidence was evaluated and/or whether the merits were tested. 13. The matter can be looked at from another angle. In the absence of any indication as regards merits of the case, preferring an appeal will be really inconsequential. It is more so when no definite ground of appeal can be pressed into service, except making generalized challenges. It certainly cannot be the legislative intent.” 13. In the present case the suit was instituted for declaration that land in J.B. No. 23 in mouza Sukhbadia recorded in the name of Sital Prasad Sah during the Gantzer's Survey, was null and void, inoperative and illegal. The plaintiff claimed that the parties are governed by Mitakshara School of Law. It was asserted that Mul Raiyat for the said land was Ram Prasad Sah, the grandfather of the plaintiff. After his death one of his two sons Shivdas Sah was appointed as Mul Raiyat of Sukhbadia. The said Shivdas Sah exercised Mul raiyat powers by enjoying Jote along with his brother Shiv Nandan Sah and Sital Prasad Sah jointly. However, Sital Prasad Sah by playing fraud during the Mc. Pherson Settlement got his name entered in the parcha of J.B. No. 24. The plaintiff pleaded that though, the name of Sital Prasad Sah does not appear in the Mc. Pherson Settlement, he in collusion with the manager of Rohini Estate put the entire land in J.B. No. 24 for auction. The defendant nos. 14 & 15 supported the claim of the plaintiff however, they also claimed right, title and interest over the suit property being the descendants of Ram Govind Sah. The defendant nos. 1 to 4, 6 and 8 to 13 disputed the claim regarding jointness with Sital Prasad Sah and it was claimed that the said Sital Prasad Sah separated from Ram Prasad Sah and Govind Prasad Sah prior to Mc. Pherson Settlement. These defendants claimed that their ancestor namely, Sital Prasad Sah purchased the entire Jote of mouza Sukhbadia in auction sale dated 23.08.1922 in Certificate Case No. 272 of 1920 from the Court of Deputy Commissioner, Deoghar and possession was delivered to him. Pherson Settlement. These defendants claimed that their ancestor namely, Sital Prasad Sah purchased the entire Jote of mouza Sukhbadia in auction sale dated 23.08.1922 in Certificate Case No. 272 of 1920 from the Court of Deputy Commissioner, Deoghar and possession was delivered to him. These defendants further contended that in the Gantzer's Survey Settlement name of Sital Prasad Sah is recorded which is a conclusive proof and after lapse of 72 years entry of Gantzer Survey Settlement cannot be challenged. The judgment and order dated 26.07.2011 in Title (Declaration) Suit No. 09 of 2002 nowhere discuss the plea taken by the defendant no. 12 in the written statement. In paragraph no. 7 of the judgment in Title (Declaration) Suit No. 9 of 2002, the trial court has observed that in the present suit only one side of the story is before the court because the contesting defendants did not adduce evidence, either documentary or oral. The plea taken by the defendant no.12 that due to his illness he could not produce witness and thus, could not contest the suit, whether true or false can be adjudicated only in the proceeding of Miscellaneous Case No. 6 of 2011. Merely because judgment dated 30.07.2011 records that the order is “on contest” against the defendant nos. 1 to 4, 6 and 8 to 13, it does not preclude the defendant no. 12 to contend that the decree is an exparte decree. The trial court merely observing that the decree has been passed “on contest” against the defendant nos. 1 to 4, 6 and 8 to 13, held that the petition under Order IX Rule 13 CPC is not maintainable. Without examining the nature of order passed in the suit, the Miscellaneous Case could not have been held not maintainable. I find that order dated 13.07.2012 suffers from serious infirmity in law. The appellate court has rightly interfered with the said order and remanded the matter for fresh consideration. 14. The decisions relied upon by the learned counsel for the petitioners are not applicable in the present case. In “Lalit Chandra Das and others Vs. Sushil Chandra Guha and another”, AIR 1980 Calcutta 148, the decision of Full Bench of Allahabad High Court in “Seth Munnalal Vs. Seth Jai Prakash”, AIR 1970 All 257 and Madhya Pradesh High Court in “Rama Rao and others Vs. In “Lalit Chandra Das and others Vs. Sushil Chandra Guha and another”, AIR 1980 Calcutta 148, the decision of Full Bench of Allahabad High Court in “Seth Munnalal Vs. Seth Jai Prakash”, AIR 1970 All 257 and Madhya Pradesh High Court in “Rama Rao and others Vs. Shantibai and others”, AIR 1977 MP 222 were cited to contend that Rule 2 of Order XVII C.P.C. does not empower the court to dispose of the suit on merits rather, the court can proceed under Order IX C.P.C. and dismiss the suit under Order IX Rule 8 C.P.C. In “Satya Narayan Sah Vs. Brij Gopal Mundra”, AIR 1991 Patna 60, it was held that Order IX Rule 13 C.P.C. has no application in a case where decree passed was not an exparte decree. In “Gauri Shanker Konodia Vs. Durga Prasanna Majumdar”, 1992 (1) PLJR 696 , this Court held that where no evidence or no substantial evidence on behalf of the defendant has been recorded and the court proceeds to hear the suit, application under Order IX Rule 13 C.P.C. is maintainable. 15. In the result, the writ petition is dismissed.