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2017 DIGILAW 142 (MP)

Sushila v. Rajesh Kumar Pandey

2017-01-30

ROHIT ARYA

body2017
ORDER : Rohit Arya, J. In this civil revision under section 115 CPC, petitioner/defendant has approached this Court taking exception to the order dated 03/03/2016 passed by III Additional District Judge, Gwalior in Misc. Appeal No.145/2015 confirming the order dated 24/08/2015 passed by the trial Court in civil miscellaneous case No.18/2013. The application filed by the petitioner under Order 9, Rule 13 CPC for setting aside ex-parte decree has been rejected in a suit filed for declaration, injunction and recovery of possession. It needs to be mentioned that the plaintiff and the defendant are real brother and sister. 2. Upon perusal of the orders impugned, it appears that the defendant committed defaults through her counsel in appearance before the trial Court on certain dates as a result the trial Court had proceeded ex-parte. However, adopting the benevolent attitude, the trial Court acceded to the prayer of the defendant seeking set aside the ex-parte proceedings on an application filed under Order 9, Rule 7 CPC though subject to payment of cost. Though defendant filed written statement on 16/04/2012 but due to absence of the defendant and her counsel on 26/11/2012, the case has been again fixed for 27/11/2012. On 27/11/2012, the ex-parte evidence of the plaintiff was recorded and the case was fixed for arguments on 30/11/2012. However, on 27/11/2012 at about 5.00 pm the advocate, Shri Avadesh Sharma for defendant appeared and prayed for setting aside the ex-parte proceedings by filing application under Order 9, Rule 7 CPC. The same was allowed subject to payment of cost and thereafter the case was fixed for cross-examination of the plaintiff's witnesses on 23/07/2013. However, due to the unfortunate incident of accident of daughter, Ms.Shivangi Sharma of the counsel, Shri Satish Chandra Sharma, the counsel could not appear to complete the cross examination as a result the trial Court closed the case and thereafter passed the ex-parte order on 07/08/2013. 3. Learned counsel for the petitioner/defendant contends that the suit was filed on 29/12/2011 and within four months, written statement was filed by the defendant. Thereafter, the defendant did not remain absent deliberately to avoid hearing of the suit. In fact, the defendant engaged Sarva Shri Avadesh Sharma and Satish Chandra Sharma to participate in the proceedings of the suit. 3. Learned counsel for the petitioner/defendant contends that the suit was filed on 29/12/2011 and within four months, written statement was filed by the defendant. Thereafter, the defendant did not remain absent deliberately to avoid hearing of the suit. In fact, the defendant engaged Sarva Shri Avadesh Sharma and Satish Chandra Sharma to participate in the proceedings of the suit. Non-appearance of the advocates had led to proceed ex-parte which were duly considered and trial Court on earlier occasion had set aside the ex-parte order though, defendant had to pay cost, each time. Defendant was not averse to cross-examine the plaintiff's witnesses, however, as the defendant was out of station on 23/07/2013 and since the daughter of the counsel had met with an accident, the non-appearance of the defendant and that of the advocates, Sarva Shri Avadesh Sharma and Satish Chandra Sharma for obvious reasons, the trial Court ought not to have taken exception to the non-appearance of the counsels on that date resulting into passing the ex-parte judgment and decree. It is submitted that not even a year passed by since the time the suit was filed and, therefore, the trial Court ought not to have adopted the hyper technical strict view in the matter of completion of hearing of the suit. After all, the procedural laws are meant to do complete justice between the parties and not to cause any prejudice to either party in any manner whatsoever. Moreover, the application seeking ex-parte judgment and decree was filed well within time and, therefore, the bona fide of the defendant/petitioner in the matter of defending the suit could not have been taken exception to. With the aforesaid submissions, learned counsel prays for setting aside the ex-parte judgment and decree though on such terms and conditions which this Court may deem fit and proper. 4. Learned counsel for the respondent/plaintiff contends that the petitioner is a habitual defaulter and number of defaults have been committed in appearance before the Court either by the defendant herself or her advocates. Such repeated recurrence of defaults in appearance before the Court had led to ex-parte proceedings. Under these circumstances, the trial Court had no option than to proceed ex-parte against the petitioner having defaulted repeatedly in the matter of completion of the cross-examination of the plaintiff's witnesses. Such repeated recurrence of defaults in appearance before the Court had led to ex-parte proceedings. Under these circumstances, the trial Court had no option than to proceed ex-parte against the petitioner having defaulted repeatedly in the matter of completion of the cross-examination of the plaintiff's witnesses. Trial Court has been benevolent on many occasions and since the petitioner intended to test the patience of the Court and remained absent to delay the proceedings, hence, no interference is warranted in the order passed by the trial Court while rejecting the application under Order 9, Rule 13 CPC. With the aforesaid submissions, learned counsel submits that the orders impugned does not warrant interference in exercise of the revisional jurisdiction by this Court under section 115 CPC. 5. Heard. 6. Upon perusal of the orders impugned, ex-facie, there is no illegality in the proceedings before the trial Court, however, this Court cannot lose sight of the fact that the procedural laws are handmaid laws to do justice between parties and is not mistress of the judicial process. True it is, that for defaults on the part of the defendant in appearance before the Court, the same has been compensated by payment of cost, in the past. On the fateful day, the defendant was out of station and due to accident of daughter of Shri Satish Chandra Sharma, the counsels Sarva Shri Avadesh Sharma and Satish Chandra Sharma could not appear before the Court. As such, non-appearance should not have been viewed so seriously so as to cause prejudice to the petitioner having been proceeded ex-parte resulting into passing ex-parte judgment and decree. The trial Court could have compensated the respondent/plaintiff with payment of suitable cost to ensure paramount object of doing substantive justice between the parties. That having not been done, this Court considers it expedient to set aside the ex-parte decree and permit the petitioner to participate in the proceedings, however, on payment of cost to the respondent/plaintiff. 7. Consequently, the impugned orders passed by the Courts below dismissing the application filed under Order 9, Rule 13 CPC are set aside with the following directions: (i) the parties shall appear before the trial Court on 08/02/2017. (ii) Petitioner shall deposit the cost of Rs.5,000/- (Rupees five thousand only) with the respondent on the said date. 7. Consequently, the impugned orders passed by the Courts below dismissing the application filed under Order 9, Rule 13 CPC are set aside with the following directions: (i) the parties shall appear before the trial Court on 08/02/2017. (ii) Petitioner shall deposit the cost of Rs.5,000/- (Rupees five thousand only) with the respondent on the said date. (iii) Petitioner shall pay the total amount of mesne profits accrued as on date, on such term and conditions the trial Court deems fit and proper in the matter of instalments for which the petitioner shall file an application on the same date. (iv) As the suit is of the year 2012 and due to nonparticipation of the defendant, the proceedings have been lingered on, therefore, the petitioner shall not seek unwarranted adjournment and ensure full cooperation in compliance of the suit proceedings of the suit and (v) Trial Court shall endeavour to decide the suit as early as possible within 09 (nine) months. 8. Registry is directed to transmit the original record to the trial Court, forthwith. 9. With the aforesaid directions, civil revision stands allowed and disposed of.