G.P. Srivastava
Vs. Shri R.K. Raizada & Ors [2000] INSC 102 (3 March 2000)
S.Saghir
Ahmad. & R.P. Sethi.
SETHI,J.
L.I.T.J
Leave granted.
On his
failure to appear in the Court either personally or through his Advocate, the
suit for arrears of rent, ejectment and damages filed against the appellant was
decreed ex-parte on 10.3.1983. The application for setting aside the ex-parte
judgment and decree filed on 7.4.1983 in terms of Order 9 Rule 13 of the Code of
Civil Procedure was dismissed by the Trial Judge on 14.5.1985. The revision
petition No.73 of 1985 filed by the appellant was dismissed by the High Court
vide the order impugned on 23rd September, 1999 on the ground that the
appellant had failed to establish any just or sufficient cause for his non
appearance on the date fixed when the ex-parte proceedings were initiated
against him.
We
have heard the learned counsel for the parties and perused the papers.@@
JJJJJJJ The facts of the case are that respondent-landlord filed a suit for ejectment
and recovery of the arrears of rent on 5.8.1981 alleging therein that as the
tenanted premises was new construction, the same is not covered under U.P. Act
No.30 of 1972. The appellant-defendant- tenant was alleged to have failed to
pay the rent since June, 1980 and he was in arrears amounting to Rs.4,000/-. A
notice under registered cover dated 29th May, 1981 was sent by the respondent on the
address of the appellant terminating his tenancy. Despite service of the notice
the appellant was stated to have neither vacated the tenanted portion nor paid
the arrears of rent or damages which necessitated the filing of the suit. The
appellant-defendant resisted the suit mainly on the ground that the entire plot
of land of Lane No.21, Shanker Nagar, Nirala Nagar, Lucknow was let out to him in the month of
February, 1997 and he was permitted to raise construction thereon. In pursuance
to the aforesaid permission, the appellant claimed to have constructed the
entire portion of the tenanted premises after incurring an amount of Rs.25,000/-.
Monthly premium of Rs.300/- was settled to be paid. The competence of the
respondent-plaintiff to file the suit was also challenged alleging that he was
not the landlord of the appellant. On 10th March, 1983 the case was called on for hearing
by the Court in the early hours but as no-one appeared on behalf of the
appellant, the same was again taken up at 2 p.m. As none appeared at that time also, the suit was decreed ex-parte on
the basis of evidence produced in the case. In his application under Order 9
Rule 13 of the Code of Civil Procedure, praying for setting aside ex-parte
judgment and decree, the appellant submitted that he was posted as Assistant
Engineer in the Irrigation Department and on account of the construction of the
bridges over the casual drains he had to remain at the site in the interests of
public. He became indisposed in the evening of 8th March, 1982 at the site which was about 85 kilometers away from Lucknow and could not move or return back
to Lucknow till 11.3.1983 which prevented him
to appear in the Trial Court on 10th March, 1983. Unfortunately, the young nephew of the counsel of the
appellant met with an accident on 10.3.1983 and expired which prevented his
counsel also to appear in the Court on that date. It was contended that the
absence of the appellant and his counsel in the Trial Court was on account of
the aforesaid circumstances and not intentional.
The application was supported by his affidavit and a
medical certificate. The Trial Court did not accept the pleas raised by the
appellant and found that the absence of the appellant or his counsel in the
Court on 10.3.1983 was not for just or sufficient cause. The filing of the
medical certificate was not disputed but the same was not relied on as it was
found to have been obtained from a private doctor and not from a Government
doctor. The High Court also did not accept the contentions of the appellant and
noticing his previous conduct rejected the revision petition refusing to set
aside the ex-parte decree passed against him. Under Order 9 Rule 13 C.P.C. 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 non-appearance 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 erring party. Sufficient cause for the purpose of
Order 9 Rule 13 has to be construed as elastic expression for which no hard and
fast guidelines can be prescribed. The courts have 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 initiated against him, he cannot be penalised
for his previous negligence which had been overlooked and thereby condoned
earlier. In a case where defendant approaches the Court immediately and within
the statutory time specified, the discretion is normally exercised in his favour,
provided the absence was not malafide 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. In the instant case, it is not disputed that the nephew of
the counsel of the appellant had died in a road accident on the date of hearing and that the appellant himself was not at the station on account of his employment and illness. The mere fact of obtaining a certificate from a private doctor could not be made a basis for rejecting his claim of
being sick. Both the Trial Court as also the High Court have adopted a very
narrow and technical approach in dealing with a matter pertaining to the
eviction of the appellant despite the fact that he had put a reasonable defence
and had approached the Court for setting aside the ex-parte decree, admittedly,
within the statutory period. Even if the appellant was found to be negligent,
the other side could have been compensated by costs and the ex-parte decree set
aside on such other terms and conditions as were deemed proper by the Trial
Court. On account of the unrealistic and technical approach adopted by the
courts, the litigation between the parties has unnecessarily been prolonged for
about 17 years. The ends of justice can be met only if the appellant- defendant
is allowed opportunity to prove his case within a reasonable time. Under the
circumstances, the appeal is allowed by setting aside the order of the High
Court and of the Trial Court. The ex-parte Judgment and decree passed against the appellant is set aside on payment of costs of Rs.5,000/- to the other side. The Trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit preferably within a period of six months from the date of receipt of the copy of this order.
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