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2017 DIGILAW 2829 (ALL)

Beena v. Savita

2017-12-05

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard Sri K.K. Tiwari, learned counsel for the petitioners and Sri Kartikeya Saran, learned counsel appearing for the landlord-respondent. 2. Supplementary affidavit filed today is taken on record. 3. Present petition has been filed for quashing the judgment and order dated 2.5.2009 passed in SCC Suit No. 7 of 1982 (Munshi Ram vs. Jai Ram Das) and judgment and order dated 26.10.2013 passed by Small Causes Court, Jhansi in Misc. Case No. 28 of 2010 as well as order dated 26.8.2017 passed in Revision No. 118 of 2013 (Smt. Beena and others vs. Smt. Savita and others). 4. SCC Suit No. 7 of 1982 (Munshi Ram vs. Jai Ram Das) filed by the landlord-respondent for rent and eviction against the tenants-petitioners was decreed ex-parte vide judgment and order dated 2.5.2009. Subsequently, the application filed by the petitioner under Order 9 Rule 13 CPC was rejected against which revision was filed that too was also rejected. 5. Submission of learned counsel for the petitioners is that the petitioner was never aware about the dismissal of the suit and the date fixed in the suit and after disposal of one revision the file was returned to the trial court on 3.7.2008 and thereafter he was not given any notice and ultimately vide order dated 11.9.2008 the suit was directed to be proceeded against the petitioners ex-parte on 2.5.2009. The petitioner came to know about the ex-parte judgment when he received notice of execution case fixing 16.5.2010 and it is only thereafter the petitioner came to know about the same and as such, the application under Order 9 Rule 13 CPC read with Section 151 CPC was filed. The aforesaid application was rejected by the trial court noticing that after revision no. 163 of 2005 was dismissed by the lower revisional court vide order dated 13.3.2008 and the matter was send back to the trial court to be decided within six months, the file was received on 3.7.2008 and the petitioner did not appear after 6.8.2008, therefore, the suit proceeded ex-parte. Submission of learned counsel for the petitioners is that the petitioner was not aware of the order dated 6.8.2008 and the counsel was not present on 6.8.2008. Certified copy of the order-sheet has been placed before this Court by means of supplementary affidavit today. Submission of learned counsel for the petitioners is that the petitioner was not aware of the order dated 6.8.2008 and the counsel was not present on 6.8.2008. Certified copy of the order-sheet has been placed before this Court by means of supplementary affidavit today. Submission is that the writ petition was filed by the petitioner before this Court being Writ Petition No. 10310 of 1984 which was allowed vide judgment dated 13.8.2004, whereby the petitioner was extended benefit of Section 20(4) of the Act 13 of 1972 and since the petitioner did not have knowledge of the date fixed 11.8.2008, therefore, under such circumstances in absence of knowledge of the date fixed by the trial court he could not appear, hence the application is liable to be allowed. It has been submitted that on 6.8.2008 the counsel for the petitioner was not present before the court and thereafter inspite of the order of the trial court dated 11.8.2008 he was not informed. 6. Per contra, learned counsel for the respondent has submitted that the petitioner had full knowledge of the date fixed i.e. 11.8.2008 and submitted that counsel for the petitioner was present on 6.8.2008 before the trial court as has been categorically noted by the court while deciding application under Order 9 Rule 13 CPC. A perusal of the certified copy of the order-sheet that has been filed today also indicates that his counsel was present and under such circumstances no interference is warranted and the petition is devoid of merits and is liable to be dismissed. 7. Advancing the arguments, attention was drawn to proviso added by this Court in Order 9 Rule 13 CPC, which provides that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the court is satisfied that the defendant knew, or but for his wilful conduct would have know, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. 8. I have consider the submissions and have perused the record. 9. A perusal of the application filed under Order 9 Rule 13 CPC and the affidavit filed in support thereof clearly indicates that there is a deliberately omission of the order dated 6.8.2008. 8. I have consider the submissions and have perused the record. 9. A perusal of the application filed under Order 9 Rule 13 CPC and the affidavit filed in support thereof clearly indicates that there is a deliberately omission of the order dated 6.8.2008. Although other dates have been mentioned but this date has been conveniently omitted, apparently for the reason that counsel for the petitioner was present on the date. It is only in the revision challenging the order rejecting the application a ground has been taken that his counsel was not present, however, the record speaks otherwise. It is also pertinent to note that Revision No. 163 of 2005 was filed by the original tenant himself, which was decided on 3.3.2008 and the trial court was directed to decide the suit, if possible, within six months, therefore, the petitioner was very much aware of the fact that the file has been sent back to the trial court for its final disposal. The file was received by the trial court on 3.7.2008 and this date was within the knowledge of the tenant, which has been mentioned in paragraph 5 of the affidavit filed in support of the application under Order 9 Rule 13 CPC. After this on 6.8.2008 the counsel for the defendant was present before the court and thereafter, next date fixed was 11.8.2008. 10. In such view of the matter, the petitioner was not only aware of the fact that the file was send to the trial court, which was received by the trial court on 3.7.2008 but he was also aware of the next date i.e. on 6.8.2008 on which date his counsel was present but thereafter he failed to appear before the court. A glance over the ex-parte order dated 2.5.2009 also indicates that the defendant never came forward to lead evidence, whereas he was afforded several opportunities to cross-examine the plaintiff witness. 11. The proviso to Order 9 Rule 13 CPC has been consciously added by this Court so that the defendant may not take undue benefit of Order 9 Rule 13 CPC that the irregularity in the service of summons would not be of any consequence if the court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. In the present case, as the record reflects the counsel for the petitioner was present on 6.8.2008 no such challenge regarding presence of the counsel has been given in the application filed under Order 9 Rule 13 CPC, although the same was raised in the revision and it was also orally submitted before this Court. The record clearly reflects otherwise. The omission on part of the tenant or his counsel to know the next date fixed in the case clearly appears to wilful in nature and therefore, I am not inclined to place any reliance on such assertion. 12. Consequently, the cause shown for absence does not appear to be sufficient and for this reason I do not find any legal infirmity or jurisdictional error in the orders impugned herein. 13. Present petition is devoid of merit and is accordingly dismissed.