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2017 DIGILAW 864 (MP)

Malti Devi v. Ajit Kumar Jain

2017-07-27

VIVEK AGARWAL

body2017
ORDER 1. This miscellaneous appeal has been filed by the defendants/ tenant being aggrieved by the order dated 15.4.2011 passed by 11th Additional District Judge (Fast Track), Gwalior, in Civil Case No.70/2010, refusing to accept the application under Order 9 rule 13 of CPC, making a prayer for setting aside of ex parte judgment and decree dated 5.2.2009 passed in Case No.4A/2008 [Ajit Kumar Jain v. Smt. Malti Devi and others]. 2. It is appellants' contention that this case was fixed on 5.11.2008 for decision on an application under section 13(2) of the M.P. Accommodation Control Act and, therefore, no ex parte proceedings could have been drawn by the Court of 7th Additional District Judge, Gwalior, against the defendants for non-appearance of their counsel. It is also submitted that if counsel had not appeared, then there was a duty cast on said Court to have issued SPC in favour of the defendants so to make alternate arrangements for engaging a counsel rather than passing an ex parte order. Learned counsel for the appellants has placed reliance on the judgment of this Court in the case of Ram Vishal v. Shobha Ram and others, as reported in [ 2006(II) MPWN 106 = 2006(2) MPLJ 68 ], wherein it has been held that power to draw ex parte proceedings can be exercised only when the suit is called on for hearing on merits. He has also placed reliance on the judgment of this Court in the case of Vaianti Bai (Smt.) v. Jairam as, reported in [ 2008(II) MPWN 56 ], wherein this Court was pleased to observe that counsel engaged by defendant not appeared without intimation to his client. Court should enquire the cause and should inform the party. Proceeding ex parte not proper; ex parte decree was setaside. It has been held that duly engaged counsel not appearing or pleading no instructions. Party concerned should be noticed by the Court instead of proceeding ex parte. He has also placed reliance on the judgment of this Court in the case of Benibai (Smt.) v. Smt Champabai as, reported in [ 1996 JLJ 436 ], wherein it has been held that if counsel appearing in the case, pleads no instructions, then cause of such no instructions should be made known to the Court. Court should also enquire the cause. Court should also enquire the cause. Duty of the counsel is to inform his client before he pleads no instructions and submits that since his counsel had not appeared on the due date, therefore, the Court was not authorized to proceed ex parte. 3. Learned counsel for the appellants also submits that since out of several respondents, only defendant No.2 Rajkumar was looking after the case and since he had fallen sick, therefore, he could not appear before the Court on the given date and he was advised rest from 1.11.2008 till 10.2.2009, therefore, the Court should have set aside the ex parte judgment and decree. 4. On the other hand, learned counsel for the respondent has placed reliance on the judgment of this Court in the case of Madhuribai (Smt.) v. Grasim Industries Ltd., Nagda, as reported in [ 1995 JLJ 217 ], wherein it has been held that cause sought to be argued not mentioned in the application, only reason of illness disclosed. Major sons and daughters available; assistance of filing appeal in time not sought from them; delay rightly not condoned. 5. In this judgment, reliance has been placed on the judgment of the Supreme Court in the case of State of West Bengal v. The Administrator, Howrah Municipality and others, as reported in AIR 1972 SC 749 , wherein the Supreme Court was pleased to hold that 'sufficient cause' cannot be construed too liberally merely because the party in default is the Government. 6. Similarly, reliance has been placed on the judgment of this Court in the case of Balveer Singh v. Anil Kumar Jain and others, as reported in [2017(II) MPWN SN 29], wherein it has been held that in absence of any sufficient ground for non-appearance, application under Order 9 rule 13 was rightly dismissed. Reliance has been placed on Para 6 of the said judgment and it is submitted that no case is made out for interfering with the impugned order and setting-aside the ex parte proceedings. 7. As far as appellants' reliance on the judgment of Ram Vishal (supra), is concerned, in that case, facts are different. The case was fixed for the purpose of arguments on the application for amendment and, therefore, it was held that no ex parte proceedings could have been drawn against the defendant. 7. As far as appellants' reliance on the judgment of Ram Vishal (supra), is concerned, in that case, facts are different. The case was fixed for the purpose of arguments on the application for amendment and, therefore, it was held that no ex parte proceedings could have been drawn against the defendant. But in the present case, case was fixed for arguments on application under section 13(2) of the Accommodation Control Act and the date was not a formal date. Perusal of the concerned order-sheet will reveal that at 12:00 P.M., defendants No.1, 2 and 4 were called for, as defendant No.3 was already ex parte, but nobody appeared. Then, again at 1:00 p.m., case was called and the position was same. At 3:30 p.m., nobody appeared for defendants No.1, 2 and 4 and, therefore, ex parte proceedings were drawn against the defendants and application under section 13(2) was decided. Not only this, after deciding such application, it has been mentioned that since written statement has been filed by the defendants, case was fixed for framing of the issues on 14.11.2008. 8. In view of such order sheets, it is apparent that it was not a case where any arbitrary or hasty decision was taken against the defendants, therefore, the case of the appellant is not covered by the judgment in the case of Ram Vishal (supra), as the Court held that only that application for amendment could have been decided and nothing more or less. 9. As far as appellants' reliance on the judgment of Vaianti Bai (supra), is concerned, in said judgment, reliance has been placed on the judgment of Benibai (supra), and in Para-6, it has been categorically mentioned that if the counsel engaged by the party, without any intimation, does not appear in the Court, then the Court is duty bound to examine and record the reasons regarding such non-appearance and further by fixing a date, issue fresh notice to the party whose counsel did not appear or pleaded no instructions or taken withdrawal from the case without intimation to his party. 10. 10. Reliance was placed on the judgment of the Supreme Court in the case of Tahil Ram Issardas Sadarangani and others v. Ramchand Issardas Sadarangani and another, as reported in AIR 1993 SC 1182 , in which context was that the counsel had withdrew from the case and the petitioners were not present in Court. The Supreme Court noticed that it was not known that whether the petitioners had the notice of the hearing of the case on that date, when counsel withdrew from the case and therefore, observed that interest of justice required, that a fresh notice for actual date of hearing should have been sent to the parties. 11. In the present case, facts are different. The civil Court rules and orders do not make any prescription for issuance of summons to the parties. Similarly, there is no averment on behalf of the appellant that he had no notice of the date of hearing. On the other hand, he submits that since he had fallen ill with effect from 1.11.2008, he could not appear on that date. Therefore, the ratio of the judgment in the case of Vaianti Bai (supra), and that of Benibai (supra), are not applicable because the case of Benibai was also that of withdrawal of the counsel from the case. But, in the present case, the appellants' counsel had not appeared before the Court on the fixed date. There is no affidavit of the counsel assigning the reason for not appearing, no action has been taken by the appellant against his counsel for not appearing on the said date and also for not giving intimation regarding such non-appearance, it means that the appellant condoned the act of the counsel for not appearing before the Court on the date fixed and therefore, it cannot be pleaded by the appellant that for the fault of the counsel, his right should not be allowed to be adversely affected. Once the appellant decided to condone the act of the counsel, he cannot make any capital out of it. It is also true that the appellant has failed to show as to why other persons who were also impleaded as defendants, failed to appear before the Court or failed to enquire into the progress of the case thereafter. 12. Once the appellant decided to condone the act of the counsel, he cannot make any capital out of it. It is also true that the appellant has failed to show as to why other persons who were also impleaded as defendants, failed to appear before the Court or failed to enquire into the progress of the case thereafter. 12. It is also evident from the record and as has been submitted by learned counsel for the respondent that there is no averment in regard to the nature of illness and duration of confinement in the application under section 5 of the Limitation Act, which was filed before the trial Court along with an application under Order 9 rule 13. Reply to this application was submitted on 9.10.2009 objecting to such conduct of the appellant and the appellant had enclosed a medical certificate (Ex.-P/2) dated 1.11.2008 showing that he was advised absence from work with effect from 1.11.2008 to 10.2.2009 for restoration of his health vide list of documents dated 17.8.2010. But, no reason has been provided for not filing these documents till 17.8.2010 when they were filed along with list of documents. Thus, learned counsel for the respondent has raised bona fide doubts about the authenticity of these documents. It is also submitted that the appellant Rajkumar has admitted that it was his mother who had engaged counsel- Shri Kamal Jain to enquire about the fate of the case. When she could have engage a counsel for enquiring about the fate of the case, then she could have also approach the Court to proceed with the case. He also admitted that his mother Malti Devi, brother Ajit Kumar and Manvendra Singh were healthy and were not suffering from any ailment. He admitted that he never asked his brother to meet the counsel and also admitted in his cross-examination that he was fully conscious. His another withness Ram Kumar Sharma has categorically deposed in cross-examination that Doctor had never advised any bed rest to the appellant- Rajkumar Singh and further deposed that Rajkumar had not fallen sick on 1.11.2008. He also admitted that he was giving statements on the insistence of Rajkumar. His another withness Ram Kumar Sharma has categorically deposed in cross-examination that Doctor had never advised any bed rest to the appellant- Rajkumar Singh and further deposed that Rajkumar had not fallen sick on 1.11.2008. He also admitted that he was giving statements on the insistence of Rajkumar. Thus, Ram Kumar Sharma did not support the case of the appellant Rajkumar and further, no reason has been assigned by the appellant Rajkumar for not approaching the Court or his counsel to find about the whereabouts of his case after the period of his so-called confinement was over on 10.2.2009. Therefore, after 10.2.2009 also, there is no good and sufficient reason assigned for not filing the application for setting aside the ex parte proceedings till 7.5.2009, therefore, in the opinion of this Court, in the light of the law laid-down by this Court in the case of Madhuribai (supra), the Court below has rightly dismissed the application for condonation of delay for not properly explaining the delay and has also rightly dismissed the application under Order 9 rule 13, which does not call for any interference, thus, the appeal fails and is dismissed.