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2023 DIGILAW 364 (CHH)

Santosh S/o Radheshyam v. Ashok S/o Judawan Yadav

2023-08-02

SACHIN SINGH RAJPUT

body2023
ORDER : This appeal under Order 43 Rule 1(d) of the Code of Civil Procedure,1908 is filed being aggrieved by the order dated 18.05.2018 passed by the learned Additional District Judge (FTC), Rajnandgaon in Civil MJC No. 21/2011 (Santosh Vs. Ashok and Others) by which the application filed by the appellant/defendant No.8 under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte judgment and decree dated 21.01.2010 passed in Civil Suit No. 20-A/2007 against the present appellant/defendant No. 8 and respondents No. 5 to 7 and 11. 2. Facts of the case in brief are that the plaintiffs/respondents No.1 to 4 have filed the suit for Specific Performance of Contract against the appellant/defendant No.8 and respondents No. 5 to 7. As per the pleadings, in the plaint, an agreement dated 27.07.1995 was executed between the father of the plaintiffs No.1 to 3 and husband of plaintiff No. 4 namely Judavan Yadav and father of respondents/defendants No. 6 to 11 namely Late Radheshyam for sale of a property situated at village Basantpur, Rajnandgaon measuring area 68 x116 sq.ft. The said land was recorded in the name of Late Radheshyam in the revenue records comprising in sheet No. 27-B, Plot No. 30, area 778 Sq. mtr. for a consideration of Rs. 80,000/- out of which Rs. 76,000/- cash was received by Late Radheshyam and the sale deed was to be executed within one year of the agreement. Initially the defendant No.8 and other defendants have filed their Vakalatnama and they were represented by a counsel. Thereafter the defendant No.8 was proceeded ex parte and ultimately ex parte judgment and decree was passed. 3. Shri Agrawal, learned counsel for the appellant/defendant No.8 submits that a joint Vakalatnma was given to the counsel to contest and defend on behalf of all the defendants including the appellant/defendant No.8. The said Vakalatnama was filed on 28.07.2006 Since counsel for the appellant/defendant No.8 was contesting the case on his behalf, he was not regularly appearing before the learned trial court. He further submits that on 22.01.2007, defendants No. 1 to 4 in the suit filed a separate Vakalatnama on their behalf through the counsel and on 01.02.2007, no instruction was stated by the counsel appearing on behalf of appellant/defendant No.8. Thereafter on 25.02.2009, learned trial court proceeded ex parte against the appellant/defendant No.8. He further submits that on 22.01.2007, defendants No. 1 to 4 in the suit filed a separate Vakalatnama on their behalf through the counsel and on 01.02.2007, no instruction was stated by the counsel appearing on behalf of appellant/defendant No.8. Thereafter on 25.02.2009, learned trial court proceeded ex parte against the appellant/defendant No.8. and ultimately on 21.01.2010 ex parte judgment and decree was passed. He further submits that on 30.10.2010, one Rajendra Shroti informed the appellant/defendant No.4 that the plaintiff No.1 in the Civil Suit namely Ashok is trying to sale the suit property. Immediately the defendant No.8/appellant enquired about the status of his case and came to know that an ex parte judgment and decree has already been passed. Thereafter on 02.11.2010, the appellant/defendant No.8 filed an application under Order 9 Rule 13 of the Code of Civil Procedure and after recording the evidence, by the impugned order learned court below has rejected the application under Order 9 Rule 13 of the CPC which is under challenge before this Court. Shri Agrawal further submits that the decree was passed on 21.01.2010 and as the appellant/defendant No.8 was under bonafide impression that his case is being prosecuted and defended by the counsel engaged by him and other defendants but the learned counsel has stated no instructions on behalf of appellant/defendant No.8 and other defendants therefore he could not come to know about the status and proceedings of the case resulting into passing of ex parte decree. He submits that the valuable right of the defendant No.8/appellant is involved and the learned trial court passed the impugned order without considering the sufficient cause shown by the appellant/defendant No.8 and erroneously held that the appellant/defendant No.8 could not show sufficient cause of his nonappearance. He further submits that if the ex parte judgment and decree is not set aside, it would lead to irreparable loss to the appellant/defendant No.8 as there is a decree of Specific Performance of Contract for an agreement which was executed by the father of defendant No.1 and the father of plaintiffs in the year 1995 and the suit was filed in the year 2006 which prima facie appears to be barred by limitation and goes to show that the plaintiffs and their father were never ready and willing to perform their part of contract. He submits that by efflux of time, the value of the suit property has been inflated considerably and if the appellant/defendant No.8 could not be given proper opportunity to defend, the same would go in favour of the plaintiffs in the alleged meager sum of Rs. 80,000/-. He further submits that the appeal may be allowed and the plaintiffs/respondents may be compensated. 4. Shri Rahul Mishra, learned counsel appearing for respondents No.1 to 4/original plaintiffs vehemently opposes the submission made by counsel for the appellant/defendant No.8. He submits that the ex parte decree was passed on 21.01.2010 and the application to set aside the decree was filed on 02.11.2010, after a lapse of about 10 months. Even otherwise, he submits that in the case in hand, summons were duly served upon the defendants including the appellant/defendant No.8 and they were represented by counsel appointed by themselves also. He further submits that the appellant/defendant No.8 ought to have been vigilant in prosecuting the civil suit and he was negligent in this regard resulting into passing of the ex parte judgment and decree. He further submits that the learned trial court while passing the decree have decided the issues in favour of the plaintiffs/respondents No. 1 to 4 and the right in favour of the plaintiff has been crystallized which should not be disturbed in this appeal after so many years. The courts cannot grant any relief to a negligent litigant only by compensating the other party by way of cost. He further submits that the appellant/defendant No.8 was proceeded ex parte but the defendants No.1 to 4 contested the suit therefore the appellant/defendant No.8 is not entitled for any relief. He placed his reliance upon the judgment of the Apex Court in the matter of Parimal Vs. Veena @ Bharti reported in (2011)3 SCC 545 , wherein it has been held as under: “12. It is evident from the above that an ex parte decree against a defendant has to be set aside if the party satisfies the court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. 13. “Sufficient cause” is an expression which has been used in a large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough” inasmuch as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party had not acted in a negligent manner or there was a want of bonafide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal V. Rewa Coalfields Ltd. AIR 1962 SC 361 , Lonand Grampanchayat V. Ramgiri Fasavi, AIR 1968 SC 222 , Surinder Singh Sibia Vs. Vijay Kumar Sood, (1992) 1 SCC 70 : AIR 1992 SC 1540 and Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation, (2010) 5 SCC 459 :(2010) 2 SCC(L&S) 50:(2010) 2 SCC (Cri.) 1291:(2010) 2 SCC (Civ) 448) 5. Shri Ravindra Agrawal, learned counsel for the appellant/defendant No.8 has placed his reliance upon the judgment of the Hon’ble Apex Court in the matter of Malkiat Singh and Another Vs. Joginder Singh and Others reported in (1998) 2 SCC 206 wherein it has been held as under: “6. There is no denying the fact that the appellants had engaged a counsel to defend them in the civil suit. Joginder Singh and Others reported in (1998) 2 SCC 206 wherein it has been held as under: “6. There is no denying the fact that the appellants had engaged a counsel to defend them in the civil suit. The counsel for the appellants pleaded “no instructions” but the court did not issue any notice to the appellants, who were admittedly not present on the date when their counsel reported no instructions in the court. It is nobody’s case that the counsel informed them after he had reported no instructions to the court. The appellants only came to know about the order dated 18.11.1991 and the ex parte decree dated 08.02.1992 when they approached their counsel on 06.06.1992. It was within four days thereafter that the appellants filed an application under Order 9 Rule 13 CPC for setting aside the order dated 18.11.1991 and the decree dated 8.12.1992. 7. The appellants in their application clearly pleaded that they were neither careless nor negligent and as soon as they learnt about the ex parte decree dated 08.02.1992 and the order dated 18.11.1991, they filed their application to set aside the order and ex parte decree. A perusal of the record also reveals that the appellants were neither careless nor negligent in defending the suit. They had engaged a counsel and were following the proceedings. In this factual situation, the trial court, which had admittedly not issued any notice to the appellants after their counsel had reported no instructions, should have, in the interest of justice, allowed that application and proceeded in the case from the stage when the counsel reported no instructions. The appellants cannot, in the facts and circumstances of the case, be said to be at fault and they should not suffer. In taking this view, we are fortified by a judgment of this Court in Tahil Ram Issardas Sadarangani Vs. Ramchand Issardas Sadarangani reported in 1993 Supp. (3) SCC 256 wherein the Bench opined: (SCC:p.27,para 4) “(4) It is not disputed in the present case that on 15.03.1974 when Mr. Adhia, Advocate withdrew from the case, the petitioners were not present in the court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adhia, Advocate withdrew from the case, the petitioners were not present in the court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adhia withdrew from the case, the interests of justice required that a fresh notice for actual date of hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer.” 6. He further placed his reliance in the matter of Rafiq & Another Vs. Munshilal and Another reported in (1981) 2 SCC 788 , wherein it has been held as under: “3. the disturbing feature of the case is that under out present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, the rest of the things. The party may be a villager or may belong a to a rural area and may have not knowledge of the court’s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K.Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimature on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimature on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K.Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the coats of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200 should be recovered fro the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi.” 7. Further, he placed his reliance in the matter of G.P.Shrivastava Vs. R.K.Raizada & Others reported in (2000) 3 SCC 54 , wherein it has been held that: “7. 200 should be recovered fro the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi.” 7. Further, he placed his reliance in the matter of G.P.Shrivastava Vs. R.K.Raizada & Others reported in (2000) 3 SCC 54 , wherein it has been held that: “7. Under Order 9 Rule 13 CPC, an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for nonappearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intention. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” 8. He submits that in the matter of Rabindra Singh Vs. Financial Commissioner, Cooperation, Punjab and Others reported in (2008) 7 SCC 663 , Hon’ble Apex Court has held that : “28. This Court in G.P.Srivastava Vs. He submits that in the matter of Rabindra Singh Vs. Financial Commissioner, Cooperation, Punjab and Others reported in (2008) 7 SCC 663 , Hon’ble Apex Court has held that : “28. This Court in G.P.Srivastava Vs. R.K.Raizada (2000) 3 SCC 54 held that : (SCC p.57, para 7) “7….The ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for nonappearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” 29. Yet again in Tea Auction Ltd. V. Grace Hill Tea Industry (2006) 12 SCC 104 it was noticed : (SCC p.107, para 12) “12. In G.P.Shrivastava V. R.K.Raizada (2000) 3 SCC 54 a similar question came up for consideration. A Division Bench of this Court opined that the provision under Order 9 Rule 13 of the Code of Civil Procedure should receive a broad construction and no hard-and-fast guidelines can be prescribed. The courts have a wide discretion to set aside an ex parte decree on satisfying itself as regards existence of a ‘sufficient cause’ opining : (SCC p.57, para 7) ‘7….. The “sufficient cause” for nonappearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.’” 9. Heard counsel for the parties and perused the record. 10. The learned court below while rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure came to a categorical finding that the appellant/defendant No.8 was not able to show any sufficient cause for his non-appearance. Now the issue involved in this appeal is whether the sufficient cause was shown for non-appearance and what would be the effect of a counsel stating no instructions. Normally, if the counsel is engaged by a party, they depend upon the learned counsels. On each and every date of hearing parties are not expected to appear personally if they are represented by a counsel. In the case in hand, there is no dispute to the effect that the appellant/defendant No.8 along with the other defendants have engaged their counsel and on 01.02.2007 the counsel engaged by the appellant/defendant No.8 stated no instructions. It could be seen that if counsel is stating no instructions before the court of law, the parties would not be aware of the same. The duty of the courts is to see that right of any party should not be curtailed merely because a counsel appearing on his or her behalf has stated no instructions. The duty of the court is to do justice and the power of the court cannot be curtailed merely on technicalities that the party has already appeared in the case therefore he should be vigilant. 11. The purpose of any litigation is to do justice with the litigants and justice means hearing the parties. Taking clue from the authorities cited by the learned counsel for the appellant, in the considered view of this Court, this appeal deserves to be allowed subject to payment of cost of Rs. 5,000/- to the plaintiff/defendant No.8 within a period of six weeks. If the amount is not paid this order shall lose its efficacy. The amount shall be deposited with the CCD of the learned trial court and the plaintiff should be entitled to recover and receive the same. 5,000/- to the plaintiff/defendant No.8 within a period of six weeks. If the amount is not paid this order shall lose its efficacy. The amount shall be deposited with the CCD of the learned trial court and the plaintiff should be entitled to recover and receive the same. 12. The parties shall appear before the learned trial court on 15.09.2023. The learned trial court will make all endeavour to decide the suit expeditiously. Parties are also directed to cooperate in early disposal of the suit. 13. Records shall be sent back to the court below. 14. No order as to costs.