Research › Search › Judgment

Uttarakhand High Court · body

2018 DIGILAW 225 (UTT)

DEV MURTI v. BHARAT JI MAHARAJ

2018-04-26

MANOJ K.TIWARI

body2018
JUDGMENT Hon'ble Manoj K. Tiwari, J. (Oral) 1. This is defendants petition, under Article 227 of the Constitution of India, against the order dated 06.03.2017 passed by 1st Additional District Judge, Rishikesh, District Dehradun in Civil Revision No. 73 of 2016. 2. Brief facts of the case are as under:- 3. Respondent Nos. 1 and 2 filed a suit for possession and mesne profit against petitioner and 5 others, which was registered as Civil Suit No. 468 of 1999. The said suit was decreed ex-parte on 15.04.2010 against the defendants. Thus, feeling aggrieved, petitioner filed an application under Order 9 Rule 13 of C.P.C. for setting aside ex-parte decree. Since there was some delay in filing the application, therefore, an application under Section 5 of the Limitation Act was also filed by the petitioner. Learned trial court allowed these two applications by means of two orders dated 30.01.2016 subject to payment of cost of Rs. 2,000/-. The plaintiffs/respondent Nos. 1 & 2 filed two separate Civil Revisions, which are numbered as 71 of 2016 and 73 of 2016 against the aforesaid orders dated 30.01.2016 before the learned 1st Additional District Judge, Rishikesh, Dehradun. Civil Revision No. 71 of 2016 was filed against the order, whereby petitioner's application filed under Section 5 of the Limitation Act was allowed, while Civil Revision No. 73 of 2016 was filed by the plaintiffs/respondent Nos. 1 & 2 against the order passed by the learned trial court, whereby petitioner's application, under Order 9 Rule 13 of C.P.C., was allowed. Learned revisional court 2 dismissed Civil Revision No. 71 of 2016 by means of judgment and order dated 06.03.2017, however, Civil Revision No. 73 of 2016 was partly allowed and the application under Order 9 Rule 13 of C.P.C. was directed to be decided afresh. Thus, feeling aggrieved, petitioner has approached this Court against the order dated 06.03.2017 passed in Civil Revision No. 73 of 2016. 4. Learned counsel for the petitioner has relied upon a judgment rendered by Orissa High Court in Khetrabasi Srichanandan & others Vs Gopinath Srichandan reported in AIR 2009 (NOC) 926 Orissa, where it has been held that if it is found that the absence of the defendants is not mala fide or intentional and the plaintiff can be compensated through cost, then application for setting aside ex-parte decree should be allowed. Paragraph 7 of the said judgment is extracted below:- “7. In the present case, admittedly, the suit was for declaration of title and confirmation of possession or in the alternative for recovery of possession. The absence of the defendants was not mala fide or intentional and the absence of the defendants can be compensated by awarding adequate cost and the dispute should be decided on merit. A very narrow and technical approach in dealing with the matter pertaining to setting aside and exparte order should not be adopted by the revisonal court." 5. Learned counsel for the petitioner has further relied upon another judgment rendered by Kerala High Court in Narikodan Sathyavalli & another Vs Syndicate Bank, Maloor Branch, Kannur, District reported in AIR 2015 Kerala 209 in which similar view has been taken. Paragraph 6 of the said judgment is extracted below- “6. In the light of the binding decision of the Apex Court, we are of the opinion that the court below ought not to have placed reliance on the fact that the defendants were set ex parte on an earlier occasion for the reason that the order setting them ex parte on 7.3.2012 was set aside by order passed in I.A. No. 1455 of 2012 after condoning the failure to appear earlier. The court below should not have in our opinion, in the absence of any material to show that the absence of the defendants on 3.12.2013 and 4.12.2013 was intentional or mala fide, held that as a condition for setting aside the ex parte decree, the defendants should be held liable to deposit the sum of Rs. 2,00,000/- towards the decree debt. As first defendant was undergoing treatment for breast cancer and she had undergone chemotherapy on 3.12.2013, the court below ought to have in our opinion set aside the ex parte decree on payment of a reasonable amount as costs, instead of directing the appellants to deposit a substantial amount towards the decree debt. We are therefore of the opinion that the impugned order deserves to be set aside." 6. It is settled position in law that the Rules of procedure are handmaid of justice and endeavour of the court should be to do complete and substantial justice between the parties. The Hon'ble Apex Court has held that in such matters, liberal approach should be adopted, so that lis be decided on merits. 7. It is settled position in law that the Rules of procedure are handmaid of justice and endeavour of the court should be to do complete and substantial justice between the parties. The Hon'ble Apex Court has held that in such matters, liberal approach should be adopted, so that lis be decided on merits. 7. Hon'ble Supreme Court in the case of Kailash Vs Nankhu & others reported in (2005) 4 SCC 480 has held as under:- “28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen Vs State of Bihar reported in (1975) 1 SCC 774 , are pertinent:- “The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. …. Justice is the goal of jurisprudence - processual, as much as substantive."" 8. In view of the aforesaid legal position, learned trial court rightly allowed defendants application for setting aside ex-parte decree, by exercising discretion vested in it by law. Learned revisional court, therefore, was not justified in interfering with the order passed by learned trial court, whereby defendants application under Order 9 Rule 13 of C.P.C., was allowed. 9. In such view of the matter, impugned order dated 06.03.2017 passed by learned 1st Additional District Judge, Rishikesh, District Dehradun cannot be sustained in the eyes of law. The same is liable to be set aside and is hereby set aside. 10. Accordingly, the writ petition is allowed. 9. In such view of the matter, impugned order dated 06.03.2017 passed by learned 1st Additional District Judge, Rishikesh, District Dehradun cannot be sustained in the eyes of law. The same is liable to be set aside and is hereby set aside. 10. Accordingly, the writ petition is allowed. However, having regard to the facts and circumstances of the case, the cost imposed by learned trial court is enhanced from Rs. 2,000/- to Rs. 50,000/-, which shall be deposited by the petitioner/defendant in the trial court on or before 15.05.2018. It has come to the notice of this Court that the matter is pending since 1999, therefore, learned trial court is requested to make every endeavour to decide Original Suit No. 468 of 1999 as early as possible, preferably within one year from the date of production of certified copy of this order.