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2019 DIGILAW 2815 (RAJ)

Nimbaram v. Hemaram

2019-11-08

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - By way of the present writ petition, the petitioners have laid challenge to the order dated 18.9.2019, passed by the learned Addl. District Judge No.2, Nagaur (hereinafter referred to as the Appellate Court), whereby the appeal filed by the respondent no.1 against the order dated 4.10.2010 passed by the learned Civil Judge (Jr. Div.), Nagaur (hereinafter referred to as the learned trial Court), rejecting his application under Order IX Rule 13 of the Code of Civil Procedure, has been allowed. 2. The facts appertain to the present writ petition are that the the present petitioners are the legal representative of one Budha Ram, who filed a suit for declaration and perpetual injunction against Hema Ram, Tulchharam, Sugani, Sayari Devi and Manglaram (respondents nos.1 to 5 herein). Said suit was decreed ex-parte by the learned trial Court vide its order dated 17.11.2003 while observing that the notices of the plaint were duly served upon the defendants and the counsel for the defendants- Mr. Shyam Sunder Sangwa, sought time to file written statement. Upon his failure to file the same, the defendants' right to file written statement was closed on 26.7.2003. Whereafter, on 8.9.2003, said counsel pleaded no instruction and thus, the Court drew ex-parte proceeding against the defendants, which ultimately came to be decreed ex-parte and injunction was granted to the effect that the defendants shall not create any obstruction or blockage in the plaintiff's right of way (marked as 'A to B' in map annexed with the plaint). 3. Upon notice of such decree, respondent no.1- Hemaram preferred an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex-parte judgment and decree, inter alia, stating that his counsel had pleaded no instruction, when he was still a minor. Stating in detail the reasons, for which he could not appear before the Court for protecting his rights/responsibilities in the suit aforesaid, he prayed that the exparte decree be set aside. 4. Said application under Order IX Rule 13 of the Code of Civil Procedure filed by the respondent No.1 Hema Ram was rejected by the learned trial Court vide its order dated 4.10.2012. 5. 4. Said application under Order IX Rule 13 of the Code of Civil Procedure filed by the respondent No.1 Hema Ram was rejected by the learned trial Court vide its order dated 4.10.2012. 5. Feeling aggrieved of such order, the respondent no.1 preferred an appeal before the Appellate Court, wherein the Appellate Court observed that when the appellant's counsel pleaded no instruction, the learned trial Court had not given any intimation or notice to the defendants, which it was expected to do. Having recorded such finding, the Appellate Court allowed the appeal filed by the respondent no.1, vide its judgment and order dated 18.9.2019 and set aside the ex-parte decree dated 17.11.2003. A direction was also issued to the learned trial Court to decide the suit in question in accordance with law, after giving due opportunity to the defendants to file written statement. It will not be out of place to reproduce the relevant portion of the impugned order dated 18.9.2019, which reads thus: 6. Mr. Chitlangi, learned counsel for the petitioner assailing the order passed by the Appellate Court on 18.9.2019, contended that the Appellate Court has erred in allowing the appeal and setting aside the ex-parte proceedings drawn by the learned trial Court on 17.11.2003. He argued that the respondent no.1 and other defendants did not properly instruct their counsel, as such he was constrained to plead no instruction after taking 3-4 opportunities. According to Mr. Chitlangi, it was the duty of the defendants to take care of their case and inquire about its status. He showed concern that by way of the order impugned, a decree granted in plaintiff's favour way back in the year 2003 has been set at naught and the proceedings have been brought to square one. 7. Supporting the judgment passed by the Appellate Court, Mr. Bhurani appearing for the respondents argued that there is no illegality, irregularity or error of jurisdiction in the order of the Appellate Court, for which this Court's indulgence is warranted. He submitted that the principles of natural justice are the basic tenets of justice dispensation system and as the Appellate Court has recorded a finding of infraction of such principles, this Court, in exercise of its supervisory jurisdiction, would be sloath to interfere. He submitted that the principles of natural justice are the basic tenets of justice dispensation system and as the Appellate Court has recorded a finding of infraction of such principles, this Court, in exercise of its supervisory jurisdiction, would be sloath to interfere. In support of the view taken by the Court below that when a counsel pleads no instruction, it is the duty of the Court to serve a notice upon the concerned party, learned counsel cited judgment of this Court delivered in the case of Prabhu Lal Vs. Lal Singh, (2000) 3 WLC(Raj) 732 . 8. Having heard learned counsel for the parties and upon perusal of the relevant material, this Court is of the considered opinion that the order impugned passed by the Appellate Court serves the ends of justice. Finding that the counsel for the defendants had pleaded no instruction, the learned trial Court ought to have issued a notice to the defendants considering the fact that the defendants No. 3 and 4 were minor and defendant No.1- Tulchha Ram was the young son and defendant No. 2- Sugani wife of the Budha Ram- original plaintiff. 9. This Court concurs with the contention of the learned counsel for the respondents that it was imperative for the learned trial Court to have issued notices to the defendants, once their counsel had pleaded no instruction. 10. As an upshot of discussion aforesaid, this Court does not find any illegality, irregularity or error of jurisdiction in the impugned order dated 18.9.2019 passed by the Appellate Court, which otherwise serves the ends of justice. No prejudice much less serious prejudice can be said to have been caused to the petitioners, so as to invoke exercise of jurisdiction under Article 227 of the Constitution of India. 11. The writ petition, therefore, fails. 12. As a parting remarks, this Court would like to observe that as the suit in question was filed way back in the year 2001, it would be required of the learned trial Court to decide the same expeditiously. 13. The stay application also stands disposed of accordingly.