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2016 DIGILAW 1019 (ORI)

Basant Kumari Mohanty v. Parbati Mohanty

2016-11-02

D.DASH

body2016
JUDGMENT : In this application under Article 227 of the Constitution of India, the petitioner seeks quashment of an order dated 27.10.2006 passed by the learned Civil Judge (Sr.Divn.), 1st Court, Cuttack in Misc. Case No. 107 of 2001 arising out of T.S. No. 409 of 1997 filed by the present petitioner as the plaintiff against the predecessor-in-interest of the opp. parties namely, Suryamani Mohanty arraigning him as the defendant in the matter of a petition under Order 9 Rule 13 of the Code of Civil Procedure. 2. Facts essential for the purpose are stated hereunder:- A. The petitioner as the plaintiff had filed the suit against the said Suryamani Mohanty arraigning him as the defendant who is the predecessor-in-interest of the opp. parties claiming the following reliefs:- (i) that the inclusion of the name of defendant no. 1 in the lease deed No. 4636 dated 5.8.81 inclusion of the name of defendant no. 1 in the Cuttack Municipal register jointly with defendant no. 1, inclusion of the name of defendant no. 1 as a cotenant with plaintiff in joint patadar Khata No. 1714 of Cantonment and Cuttack Town Khasmahal Patta now in Khewat No. 1 in the name of Govt. were fraudulent and result of deceptively false representations by defendant no. 1; (ii) that plaintiff’s interest has not been affected by those documents and she is the sole owner of the suit house and suit land and the defendant no. 1 has no right, title, interest nor possession of the said suit land and house; (iii) for permanent injunction restraining defendant no. 1 his friends relatives and agents to come upon the suit land and house; (iv) for costs of the suit to be paid by the defendant to the plaintiff; and (v) for any other relief or reliefs which by law, equity and justice the plaintiff may be found entitled to. B. In the said suit despite service of notice the defendant did not appear and thus he was set ex parte on 3.9.98. The suit then stood posted to 21.9.98, 19.12.98, 31.3.99, 1.5.99, 27.8.99, 13.10.99 and 18.12.99. The ex parte hearing being then taken up by examination of witnesses, finally the judgment was delivered on 14.3.2000. The defendant remained absent all through the period beginning from 3.8.98 to 14.3.2000. The suit then stood posted to 21.9.98, 19.12.98, 31.3.99, 1.5.99, 27.8.99, 13.10.99 and 18.12.99. The ex parte hearing being then taken up by examination of witnesses, finally the judgment was delivered on 14.3.2000. The defendant remained absent all through the period beginning from 3.8.98 to 14.3.2000. C. Thereafter it is said that coming to know about the said ex parte decree, a petition was filed by the original defendant under Order 9 Rule 13 of the Code for setting aside the ex parte decree in the year 2001. It is stated in the petition that when the original defendant had been to the office of the Tahasildar, Cuttack (S) to pay the annual rent, he could know about the ex parte decree and then making necessary inspection of the record, it was ascertained that the service of summon in the suit upon him had been manipulated and therefore he had no knowledge about the institution of the suit and for that reason, he could not take necessary steps and the decree has been passed ex parte behind his back. D. This petitioner objected to the said petition stating the grounds to be false, frivolous and denying the allegation with regard to manipulation in the matter of service of summon upon the original defendant. It is further stated that the original defendant had willfully and intentionally avoided to defend the suit. So it was stated that there was no sufficient cause for remaining absent as on the date of hearing. E. The trial court having recorded the evidence has gone to discuss the same. It has found the allegation with regard to manipulation in the matter of service of summon in the suit upon original defendant to have not been established, with further positive finding that it was so served upon the original defendant on 8.4.98. So it has taken the view that the original defendant having received the summon in the suit did not prefer to appear and contest. F. It may be stated here that the original defendant who had filed the petition under Order 9 Rule 13 of the Code having expired during the pendency of the proceeding i.e. Misc. Case No. 107 of 2001, these petitioners as his the L.Rs. have come to be substituted in his place later. F. It may be stated here that the original defendant who had filed the petition under Order 9 Rule 13 of the Code having expired during the pendency of the proceeding i.e. Misc. Case No. 107 of 2001, these petitioners as his the L.Rs. have come to be substituted in his place later. The trial court although has held the original defendant to be negligent in the matter and that according to him has resulted the ex parte judgment and decree, yet, taking a view that for his negligent act, the petitioners who are his legal representatives should not suffer and as the ex parte decree has taken away a valuable right, has gone to set aside ex parte decree. 3. Heard the learned counsel for the petitioner. None appears on behalf of the opp. parties. I have carefully read the entire order in question. 4. It is the settled law that in the proceeding under Order 9 Rule 13 of the Code, the defendant must satisfy the court that either the summon was not duly served upon him or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. In the present case, the trial court upon discussion of evidence has arrived at a factual finding that the summon in the suit was duly served upon the original defendant. So now the matter of examination remains confined to the existence of sufficient cause as on the date of hearing of the suit. It is true that the word “was prevented by any sufficient cause for appearing” must receive liberal construction in order to do complete justice between the parties. But at the same time, the rider remains that when no such negligence or inaction is attributed to the applicant. The word ‘sufficient cause’ is no doubt an elastic expression and no hard and fast guidelines could be given when the court have also the wide discretion in deciding the sufficient cause for the purpose of allowing or rejecting the application under Order 9 Rule 13 of the Code and the decision on the question must be the cumulative effect of various factors depending upon the circumstances of each case. The court in such proceeding is not to enter into the question whether the defendant has a strong case on merit or not. The court in such proceeding is not to enter into the question whether the defendant has a strong case on merit or not. It’s to remain confined in its examination whether the facts and circumstances as stated in the petition with the evidence let in for the purpose would constitute ‘sufficient cause’ for non-appearance to its satisfaction. 5. Its no more res integra that when the defendant dies after ex parte decree is made against him, his legal representatives can apply under Order 9 Rule 13 of the Code to set aside the same. The reason is that the legal representatives enjoy the same right and liability as the original defendant. Even where the defendant having applied under Order 9 Rule 13 of the Code when dies his legal representatives can come forward to pursue the petition as in this case in hand. However, even in that proceeding the question remains confined that whether the original defendant against whom the ex parte decree has been passed was prevented by sufficient reason from appearing on the date of hearing of the suit. But after holding the original defendant to have willfully avoided to take part in hearing and was negligent in the matter, it is not permissible to turn around and say that for the said negligent act of the original defendant, his legal representatives coming to prosecute the proceeding under Order 9 Rule 13 of the Code would not be allowed to suffer. This again violates the very fundamental principle that when a decree either passed ex parte or on contest binds the parties and the same if is sought to be set at naught it can only be so done in accordance with law but not on any such compassionate ground or examining the matter from a humanitarian angle. The sufficient cause to have prevented the defendant on the date of hearing has to be there to the satisfaction of the Court. It has to be shown that the defendant was neither negligent nor was in any way deliberate in said inaction. If these findings do not run in favour of original defendant, the legal representatives cannot get the relief of setting aside the ex parte decree passed against their predecessor in interest on the ground that for his negligent act, they should not made to suffer and their valuable right should not be taken away. If these findings do not run in favour of original defendant, the legal representatives cannot get the relief of setting aside the ex parte decree passed against their predecessor in interest on the ground that for his negligent act, they should not made to suffer and their valuable right should not be taken away. This aspect however may weigh in mind when the court considers the next question as regards the delay in filing the petition under Order 9 Rule 13 of the Code by those legal representatives having later derived the knowledge regarding the ex parte decree. 6. In the instant case, it has to be kept in mind that they claimed the right only through the original defendant and not any right independently. So if the predecessor-in-interest was prevented by sufficient cause and its stands to the satisfaction of the court, the legal representatives have to be favoured with an order of setting aside the ex parte decree giving them opportunity to contest the suit, subject of course upon condonation of delay if any as per law. On the other hand, if the original defendant is found to have not been prevented by sufficient cause or was negligent or such absence was a deliberate attempt on his part, the legal representatives have to share the same blame and cannot succeed in getting the ex parte decree set aside. Liberal view in the matter is no doubt to be taken but it has to be within the four corners of law and not contrary to the provision of law. Therefore, when the trial court has found that the original defendant was not prevented by sufficient cause from appearing on the date of hearing and to be negligent right from the initial stage of the case and to have not taken care to appear despite the opportunity with clear finding that the case projected in the petition as regards manipulation in the matter of service of summon has not been established in my considered view clearly a case is made out that the trial court in passing the order in question has acted contrary to the law and beyond the bounds of its authorities. In that view of the matter, it calls for interference in exercise of the power under Article 227 of the Constitution. The order dated 27.10.2006 passed by the learned Civil Judge (Sr. In that view of the matter, it calls for interference in exercise of the power under Article 227 of the Constitution. The order dated 27.10.2006 passed by the learned Civil Judge (Sr. Divn.), 1st Court, Cuttack in Misc. Case No. 107 of 2001 arising out of T.S. No. 409 of 1997 is thus liable to be quashed which is hereby done. 7. The writ application is accordingly disposed of. No order as to cost.