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2015 DIGILAW 180 (ALL)

Shanti Devi v. Adarsh Bal Niketan Through Manager

2015-01-28

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. A suit for permanent injunction was filed in the year 1972, wherein a joint written statement was filed disputing the claim of plaintiff for grant of injunction. The suit was decreed ex-parte on 25th February, 1982. An application for restoration under Order 9 Rule 13 of CPC by the defendants was allowed on 19th October, 1985. Thereafter, the suit was dismissed in default on 30th April, 1986. An application for restoration was filed after service of notice upon the counsel appearing for the defendants, who made an endorsement that the case file has already been taken by the client from him about two years back, and therefore, notices be issued in the matter. This endorsement by the lawyer appearing for the defendants was treated to be sufficient service of notice upon the defendants, and the restoration was allowed, whereafter suit was also decreed ex-parte on 5th January, 1988. Having come to know about passing of the ex-parte decree, the defendants filed an application for setting aside the ex-parte decree under Order 9 Rule 13 CPC alongwith an application to condone the delay. This application alongwith delay condonation application was rejected. A misc. appeal was also preferred against it, which too met the same fate. Aggrieved by two orders rejecting the delay condonation application, the defendants petitioners have filed the present writ petition. 2. Learned counsel for the petitioners submits that once the lawyer appearing for the defendants had made an endorsement upon the restoration application that the litigant has already withdrawn the file from him, as such, he had no authority in the matter to appear on behalf of the defendants, thereafter service of notice of the restoration application upon the counsel could not have been treated to be sufficient service of notice upon the defendants, and consequently, the only course open for the court concerned was to issue fresh notices to the defendants. It is submitted that since no notice was issued to the petitioners, the restoration application was allowed ex-parte, whereafter, the suit was also decreed ex-parte. The defendants had no knowledge of the proceedings, and the application to condone the delay, and for setting aside the decree has been filed, after they have come to know of it. It is submitted that since no notice was issued to the petitioners, the restoration application was allowed ex-parte, whereafter, the suit was also decreed ex-parte. The defendants had no knowledge of the proceedings, and the application to condone the delay, and for setting aside the decree has been filed, after they have come to know of it. He submits that there was a procedural defect in restoration being allowed, and the suit being decreed ex-parte, which was attributed to the court proceedings itself, and therefore, once this aspect has been highlighted before the courts below, the application ought to have been allowed. 3. Learned counsel for the respondent, on the other hand, submits that statement that the file had been withdrawn from the counsel was factually incorrect, as it has been observed by the court concerned that the same counsel had appeared in the proceedings about six months earlier, and therefore, his statement that file has been withdrawn about two years back, cannot be believed, and the court concerned has rightly disbelieved the same. 4. Having considered the respective submissions, this Court finds that the suit had been dismissed in default on 30.4.1986, and an application for restoration of it was moved on 15.9.1987, which was almost after an expiry of more than one year, and the counsel, who appeared for the defendants, clearly made an endorsement that case file has already been withdrawn by the client from him. Once such a statement was made by the counsel, it amounted to a fact being brought to the notice of the Court that the defendants were not represented by the counsel concerned, and therefore, service of notice upon the defendants could not have been treated to be sufficient. Since the defendants were not represented through the counsel concerned, therefore, not only the restoration matter proceeded ex-parte but also the suit itself was decreed in the absence of defendants on 5.1.1988. 5. The argument advanced by the learned counsel for the respondent that note incorporated by the lawyer that file has been withdrawn about two years back was not found credible, as he had appeared about six months back is of no consequence, as on the date when the restoration application was served upon the counsel concerned, he had no instructions in the matter, which fact had been clearly stated by him. In such circumstances, the court concerned ought to have issued notices to the defendants, and as the same was not done, all consequential proceedings were bad in law. 6. The defendants have filed an application for setting aside the ex-parte decree along with an application for condonation of delay explaining the circumstances under which they had no knowledge of the proceedings, and consequently, they could not appear earlier. The application, however, has been rejected by the courts below by taking an erroneous view of the matter, which has resulted in failure of justice for the defendants petitioners, as even without service of notice upon them, the proceedings have been concluded against them. 7. In the facts and circumstances of the present case, this Court is satisfied that once the defendants had not been served with the restoration application, and the proceedings against them had continued without service of notice, all consequential proceedings are legally unsustainable, and the courts below have erred in rejecting the application for condonation of delay, which has been sufficiently explained. 8. The writ petition is, consequently, allowed, and the orders impugned dated 23.9.2014 and 4.12.2010, rejecting the application under Order 9 Rule 13 of CPC, alongwith delay condonation application, are set aside. The proceedings are restored to the court for afresh consideration and disposal, in accordance with the observations made above. 9. Sri L.K. Dwivedi, learned counsel appearing for the respondent no.1, lastly, submits that as the suit property belongs to an educational institution, therefore, it would be appropriate that the property itself be protected, while the matter is to be examined by the courts below afresh. Sri D.S.P. Singh, learned counsel for the petitioners also contends that they have no objection to the protection of the property. In such circumstances, it is provided that till the matter is adjudicated afresh by the courts below, the parties to the proceedings shall maintain status quo with regard to nature and possession of the suit property, as it exists today. 10. Considering the fact that the proceedings have been dragged since long back, and the suit is of the year 1972, the court below is directed to expedite the proceedings and to conclude the same, in accordance with law, at the earliest possible, without granting any unnecessary adjournment to either of the parties, by fixing short dates.