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2017 DIGILAW 579 (HP)

Des Raj v. Satish Chand

2017-05-24

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. Both these petitions are being disposed of by a common judgment as common issue is involved in the same. Brief facts necessary for adjudication of these two petitions are that the respondent herein filed a civil suit for declaration i.e. C.S. No. 50/2002 titled as Satish Kumar vs. Des Raj against the present petitioner in the Court of learned Civil Judge (Sr. Division), Nurpur, District Kangra (H.P.). Petitioner had filed cross objections in the said suit. He was proceeded ex-parte by the learned Trial Court on 02.09.2009 and the counter claim was dismissed in default on the said date and thereafter the suit so filed by the present respondent was decreed ex-parte in his favour and against the petitioner on 11.09.2009. 2. Petitioner filed an application under Order 9 Rule 7 CPC before the learned Trial Court for setting-aside the order, vide which his counter claim was dismissed due to non appearance on 02.09.2009 i.e. counter claim No. 67/2002 and he also filed separate application under order 9 Rule 13 CPC for setting-aside ex-parte judgment and decree dated 11.9.2009 passed in C.S. No. 50/2002 by the learned Trial Court. 3. Both these applications so filed by the present petitioner were dismissed by the learned Trial Court vide separate orders dated 08.08.2014 by holding that the petitioner had failed to show sufficient cause for his non appearance in the Court on 02.09.2009 and for setting aside ex-pate judgment and decree dated 11.09.2009. 4. Feeling aggrieved, the orders so passed by the learned Trial Court were assailed by way of two appeals by the petitioner before the learned Appellate Court, which were dismissed by the learned Appellate Court i.e. Court of learned Addl. District Judge (I), Kangra at Dharamshala, Circuit Court at Nurpur, vide separate orders dated 08.12.2016. While dismissing the appeals so filed by the present petitioner, against the orders passed by the learned Trial Court dated 08.08.2014, it was held by the learned Appellate Court that the petitioner had miserably failed to satisfy as to what prevented him from appearing in the Court on 02.09.2009 and the explanation, which was given by the petitioner that he had gone to Rajasthan on the relevant date and that he was feeling sick and, as such, he could not inform his counsel about his illness, could not be proved on record by the present petitioner. 5. 5. Feeling aggrieved by the orders, vide which the applications filed by the present petitioner under order 9 Rule 7 CPC and under order 9 Rule 13 CPC and were dismissed by the learned Trial Court as well as by the orders, vide which the appeals so filed by the present petitioner against the above mentioned orders, were dismissed by the learned Appellate Court, he filed these two petitions. 6. Vide CMPMO No. 60/2017, the petitioner has assailed the order dated 08.08.2014 passed by the learned Trial Court in CMA No. 231/2009 vide which his application filed under order 9 Rule 13 CPC was dismissed and the order dated 08.12.2016 passed by the learned Addl. District Judge (I), Kangra at Dharamshala, Circuit Court at Nurpur in CMA No. 2- N/XIV/14, vide which his appeal filed against the said order was dismissed. 7. Vide CMPMO No. 67/2017, the petitioner has assailed the order dated 08.08.2014 passed by the learned Trial Court in CMA No. 224/2009 vide which his application filed under order 9 Rule 7 CPC was dismissed and the order dated 08.12.2016 passed by the learned Addl. District Judge (I), Kangra at Dharamshala, Circuit Court at Nurpur in CMA No. 9- N/XIV/15, vide which his appeal filed against the said order was dismissed. 8. I have heard learned counsel for the parties. 9. It is a matter of record that the petitioner herein was proceeded against ex-parte by the learned Trial Court on 02.09.2009 and on the same date, the counter claim was also dismissed in default. It is also a matter of record that thereafter an ex-parte judgment and decree was passed by the learned Trial Court on 11.09.2009. It is also a matter of record that the present petitioner filed applications under order 9 Rule 7 CPC and under order 9 Rule 13 CPC before the learned Trial Court on 29.9.2009 and 7.10.2009 respectively. In other words, the applications, which were filed by the petitioner for recalling the orders, vide which his counter claim was dismissed in default and ex-parte judgment and decree was passed against him, were filed within reasonable time and within limitation. 10. In other words, the applications, which were filed by the petitioner for recalling the orders, vide which his counter claim was dismissed in default and ex-parte judgment and decree was passed against him, were filed within reasonable time and within limitation. 10. Despite this, the learned Trial Court dismissed both the applications so filed by the petitioner by holding that the petitioner had not substantiated as to what was sufficient cause on account of which, he did not put in appearance in the Court on 02.09.2009. The orders so passed by the learned Trial Court were upheld by the learned Appellate Court. In my considered view, while dismissing the applications and appeals so filed by the present petitioner, both the learned Courts erred in not appreciating that the procedure is hand maiden of justice and it would have been in the larger interest of justice, had the applications so filed by the present petitioner for setting aside the ex-parte judgment and decree and for setting aside the order of dismissal of his counter claim in default, been recalled and thereafter the suit had been heard on merit. Undoubtedly, it weighed with both the learned Courts below that the petitioner could not furnish sufficient cause for his not being present in the Court on 02.09.2009, but keeping in view the fact that the applications for recalling the dismissal of counter claim as well as for setting aside the ex-parte judgment and decree were filed by the petitioner within 30 days of passing of the said orders, learned Courts erred in not appreciating that the present respondent could have been compensated by the learned Courts below monetarily. But, both the learned Courts below treaded a hyper technical path and dismissed the applications so filed by the present petitioner as well as the subsequent appeals filed by him. 11. There is another aspect of the matter which needs to be highlighted and the same is that the applications which were filed before the learned Trial Court under order 9 Rule 7 CPC and under order 9 Rule 13 CPC in the months of September/October 2009 were decided after 5 years vide orders dated 08.08.2014. This Court is appalled by the time taken by the learned Trial Court in deciding these two applications. This Court is appalled by the time taken by the learned Trial Court in deciding these two applications. A perusal of the order so passed by the learned Trial Court demonstrates that it has approached the entire matter with a hyper technical manner, which in my considered view, has led to miscarriage of justice. A perusal of the order dated 08.08.2014 passed in application filed under order 9 Rule 7 CPC demonstrates that in para-9 of the said order, it has been held by the learned Trial Court that the date of decision being 11.09.2009, the said application having been filed on 29.09.2009, was not technically maintainable as the applicant had to set-aside the decree as the counter claim stood dismissed. On these basis, it was held by the learned Trial Court that the application was not maintainable on the said technical ground. It was further held by the learned Trial Court that no document had been produced by the petitioner to support his story and the conduct of the petitioner reflected that his intent was to frustrate the non-applicant by lingering the case. It was further held by the learned Trial Court that today when the connectivity is there in each and every corner of the world and electricity and water have been made available to the remotest corner and mobile phones have wide range of cover, the petitioner could have contacted his Advocate or at least his family members who could have apprised them of the said fact. Similar reasoning has been assigned by the learned Trial Court while rejecting the application filed by the petitioner under order 9 Rule 13 CPC. 12. As I have mentioned above also, a perusal of the orders so passed by the learned Trial Court in both these applications demonstrates that the issue was approached by the learned Trial Court in hyper technical manner. It is not understood as to on what basis this inference was drawn by the learned Trial Court that the intent of the petitioner was to delay the matter when admittedly the applications under order 9 Rule 7 CPC and under order 9 Rule 13 CPC were filed within 30 days of passing of the order and the judgment and decree. The learned Trial Court erred in not appreciating that the goal of the Court has to be to impart substantive justice between the parties rather than frustrating the cause of substantive justice by rejecting applications by taking a hyper technical view. This Court is not even remotely suggesting that each and every application which is filed under order 9 Rule 7 CPC and under order 9 Rule 13 CPC has to be allowed by a Court of law before which such application was filed in mechanical manner. However, while dealing with such like applications, the approach which has to be adopted by the Court concerned is that in case there is no any undue delay in filing such like applications, then such applications should ordinarily be allowed and the parties should be permitted to contest the case on merit. This important aspect of the matter has been lost sight of the learned Trial Court while dismissing the applications so filed by the petitioner. Similarly, even the learned Appellate Court fell in the same trap while dismissing the appeals filed by the petitioner against the orders passed by the learned Trial Court. Learned Appellate Court also erred in not appreciating that as the applications under order 9 Rule 7 CPC and under order 9 Rule 13 CPC were filed within 30 days of passing of the ex-parte order and further within 30 days of passing of the ex-parte judgment and decree, it would have been in the interest of justice that the orders so passed by the learned Trial Court were set-aside by reviving the civil suit and by permitting the parties to contest the same on merit. 13. The order, vide which the counter claim of the petitioner was dismissed, is dated 02.09.2009 and the ex-parte judgment and decree was passed against him on 11.09.2009. Today, we are in the month of May 2017. 8 years have elapsed. Since then the present petitioner is agitating the orders, vide which his prayer for setting-aside the ex-parte judgment and decree and the dismissal of his counter claim in default, were rejected. Had the learned Trial Court allowed the applications so filed by the present petitioner by imposing costs upon him, in all probabilities, the suit itself after its revival and the counter claim after its revival could have been decided on merit. 14. Had the learned Trial Court allowed the applications so filed by the present petitioner by imposing costs upon him, in all probabilities, the suit itself after its revival and the counter claim after its revival could have been decided on merit. 14. Appalled by the time, which was consumed by the learned Trial Court in disposing of the applications filed under order 9 Rule 7 CPC and under order 9 Rule 13 CPC, this Court is issuing the following directions: (a) Miscellaneous applications, which are filed before the learned Courts, be it, under Section 5 of the Limitation Act or under different Rules of Order 6, Order 7, Order 18, Order 22 etc. for example, should be decided by the learned Courts as expeditiously as possible and all endeavour should be made to dispose of all miscellaneous applications in a period not more than 6 months from the date of filing of the same. Provisions mentioned above are only illustrative in nature and not exhaustive. (b) It shall not be incumbent upon the Courts to frame issues and then examine witnesses while deciding such like applications. Learned Courts shall dispose of these applications in a summary manner by adjudicating on the basis of material placed on record by the parties alongwith the pleadings. (c) All endeavour should be made by the Courts to adjudicate the lis before it on merit and the learned Courts should also ensure that minor technicalities do not come in the way of imparting substantial justice between the parties. 15. Therefore, in view of the above discussions, these two petitions are allowed. The orders passed by the Court of learned Civil Judge (Sr. Dvn.), Nurpur, District Kangra in CMA No. 224/2009 dated 08.08.2014 as well as in CMA No. 231/2009 dated 08.08.2014, are quashed and set-aside. Similarly, the orders passed by the learned Appellate Court in CMA No. 9-N/XIV/15 dated 08.12.2016 as well as in CMA No. 2-N/XIV/14 dated 08.12.2016 are also quashed and set-aside. Accordingly, the application filed under order 9 Rule 7 CPC by the present petitioner for setting-aside the order dated 02.09.2009, vide which his counter claim i.e. counter claim No. 67/2002 was dismissed in default, is allowed and his counter claim is ordered to be restored to its original number before the learned Trial Court. Accordingly, the application filed under order 9 Rule 7 CPC by the present petitioner for setting-aside the order dated 02.09.2009, vide which his counter claim i.e. counter claim No. 67/2002 was dismissed in default, is allowed and his counter claim is ordered to be restored to its original number before the learned Trial Court. Similarly, the application filed under order 9 Rule 13 CPC by the present petitioner for recalling ex-parte judgment and decree passed against him dated 11.09.2009, is also allowed and the judgment and decree dated 11.09.2009 is set-aside and C.S. No. 50/2002, is ordered to be restored to its original number before the learned Trial Court. These orders are passed subject to the petitioner paying costs of Rs. 10,000/- (Ten thousand) to the defendant on or before the next date. Parties are directed to appear before the learned Trial Court on 30.06.2017. 16. Keeping in view the fact that the civil suit pertains to the year 2002, this Court hope and expects that the learned Trial Court shall dispose of the civil suit expeditiously as possible. It is made clear that in case the costs in terms of this order are not paid by the present petitioner to the respondent on or before the next date so fixed for appearance of parties before the learned Trial Court, then the order so passed by this Court shall automatically become inoperative and the orders passed by the learned Court below shall also automatically stand revived. 17. Both the petitions are allowed in the above terms. No order as to costs. Pending applications, if any, also stand disposed of. 18. Learned Registrar (Judicial) is hereby directed to make available a copy of the judgment to all the learned District Judges, who shall further bring the directions so passed by this Court in the knowledge of all Judicial Officers.