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2019 DIGILAW 277 (UTT)

KEWAL SINGH PUNDIR v. SARAL KISHORE

2019-04-04

LOK PAL SINGH

body2019
JUDGMENT Hon'ble Lok Pal Singh, J. Appeal from order under Order 43 Rule 1(c) of Code of Civil Procedure is preferred against the order dated 13.12.2013, passed by Addl. District Judge, Vikas Nagar, Dehradun, in O.S. no. 206 of 2007, Kewal Singh Pundir and another vs Saral Kishore and others, whereby the applications paper no. 71C-1 and 73C-2, filed by the appellants/plaintiffs, were dismissed. 2. Brief facts of the case are that the appellants/plaintiffs filed O.S. no. 206 of 2007, Kewal Singh Pundir and another vs Saral Kishore and others, in the court of Civil Judge (Sr. Div.), Dehradun. They filed their written statement and also filed the counter claim against the respondents/defendants. The aforesaid suit was transferred to the court of Addl. District Judge, Vikasnagar. On receipt of the suit on transfer, said court issued notices to the plaintiffs several times, but the notices could not be served and lastly notices were sent through registered post to the appellants on 28.02.2011. When the registered envelop or A.D. did not return back even after the expiry of 30 days, the learned trial court held the service sufficient upon the plaintiffs. 3. Learned trial court by order dated 28.03.2011, dismissed the suit of the appellants/plaintiffs, whereof the counter claim of the defendants proceeded ex parte against them. The applications, paper nos. 71C-1 and 73C-2 were filed by the plaintiffs with the prayer that there was death of two persons in the family and the notices were not served upon them and they were not having the knowledge of the transfer of the case in the court of Addl. District Judge, Vikasnagar, District Dehradun. Objections, paper no. 76C-2, were filed by the defendant/respondent no. 1, stating therein, that if there was death in the family of the plaintiffs/appellants, what prevented plaintiff no. 1 to continue with the pairivi of the case and no evidence to this effect has been filed by the plaintiffs and this fact has not been proved that already plaintiff no. 1 was doing the pairivi of the case. The learned trial court having considered the contents of the applications and objections filed thereto, by impugned order dated 13.12.2013, dismissed both the applications. 4. 1 was doing the pairivi of the case. The learned trial court having considered the contents of the applications and objections filed thereto, by impugned order dated 13.12.2013, dismissed both the applications. 4. Learned counsel for the appellants/plaintiffs would submit that on account of death of two persons in the family, the plaintiffs were in the state of shock and were not aware of the transfer of the suit, as the plaintiff no. 1, who was doing the pairivi of the case, only was aware regarding progress of the suit and since notices were not served upon the plaintiffs after transfer of the case, the other plaintiffs could not appear to attend the proceedings of the suit and when they came to know of said fact on subsequent stage, they filed the aforesaid applications. Learned trial court vide impugned order dated 13.12.2013 rejected the applications for dismissing the suit in default and interim application to recall the order whereby the counter claim was directed to proceed against the plaintiffs ex parte. 5. Learned counsel for the appellants/plaintiffs would also submit that learned trial court has taken a hyper-technical view in rejecting the applications filed by the plaintiffs. He would further submit that the mistake of non-appearance firstly, was due to the fact that the transfer of the case was not within the knowledge of the plaintiffs/appellants and secondly, there was no previous occasion for the appellants not to appear before the court. It is contended that the trial court should have also considered the fact that the lis should be decided on merit after affording ample opportunity of hearing to the parties to the suit, but the learned trial court did not consider this settled proposition of law while dismissing the applications. 6. Per contra, learned counsel for the respondents/defendants would submit that since the dismissal of the suit, an application paper no. 71C-1 was filed under Order 9 Rule 9 CPC and as the counter-claim in the said suit proceeded ex parte, the application for recalling the order was filed under Order 9 Rule 7 of CPC. Thus, rejecting the application for recalling the ex parte order against the appellants, the appeal would not be maintainable in view of the provisions contained in Order 41 Rule 1(1) of CPC. Thus, rejecting the application for recalling the ex parte order against the appellants, the appeal would not be maintainable in view of the provisions contained in Order 41 Rule 1(1) of CPC. Learned counsel for the respondents/defendants would further submit that no sufficient ground has been raised by the appellants /plaintiffs before the trial court to convenience it that their non appearance before the court below was not deliberate. Since sufficient ground was not shown, the learned trial court did not commit any illegality in dismissing both the applications. 7. On a perusal of the applications and objections filed thereto and the order passed by the trial court, this Court is of the view that though no sufficient cause was shown by the plaintiffs/appellants for recalling the order dated 13.12.2013, but the fact remains that the learned trial court has adopted a hyper-technical view while rejecting the applications, which is against the settled proposition of law that a lis should be decided on merit after giving opportunity of hearing to the parties and if, in any case, the party could not come to the court on the date fixed to pursue his case and the case was dismissed in default, the court should not take stringent view in dismissing the application. Rather the court should consider the application leniently keeping in mind the settled position in law that a lis should be decided, in accordance with law, after giving opportunity of hearing to the parties unless the court records reasons that the application cannot be allowed at any case and recalling the order would lead to injustice with the opposite side. In the present case, counter claim which has proceeded ex parte against the plaintiff is still pending as the court has to decide the counter claim on its merit. Thus, in these circumstances, the court below should have taken a lenient view in recalling the composite order. 8. The contention of learned counsel for the appellants that appeal would not be maintainable against rejection of an application under Order 9 Rule 7 of CPC is misconceived for the reason that though both the applications were filed separately under Order 9 Rule 7 of CPC and under Order 9 Rule 9 of CPC, however, since by a common order, both the applications were rejected by the learned trial court and against the same appeal has been preferred, which is maintainable. So far rejection of applications under Order 9 Rule 7 of CPC is concerned, if it could be an application only to recall the order proceeding ex parte against the plaintiffs, there can be a force in the contention of learned counsel for the appellants. The Appeal from Order as well as the revision lies to this Court, therefore, this Court can hear the appeal and revision irrespective of the maintainability. Thus, the submission of learned counsel for the appellants is completely misconceived. 9. In view of the foregoing discussion, this Court is of the view that the learned trial court has committed illegality in rejecting the applications and in foreclosing the doors of justice for the appellants. The impugned order is liable to be quashed. Consequently, the appeal from order is allowed. The impugned order is hereby quashed. Applications no. 71C-1 and 73C-2 are hereby allowed. No order as to costs. 10. Before parting with the judgment in view of the fact that the matter is pending since 2007, the trial court is directed to proceed with the suit, in accordance with law, and decide the same preferably within one year from the date of production of certified copy of this order. The trial court shall make an endeavour to decide the suit, in accordance with law, as directed above, and grant of unnecessary adjournments to either of the parties shall be avoided.