Lal Devi and another Vs. Vaneeta Jain and others  Insc 559 (14 May 2007)
B.P. SINGH & HARJIT SINGH BEDI
CIVIL APPEAL NO.2494 of 2007 (Arising out of SLP) No.5817 of 2006) B.P.
1. Special Leave granted.
2. This appeal is directed against the judgment and order of the High Court
of Himachal Pradesh dated August 29, 2005 and September 22, 2005 in R.F.A. No.133 of 1998. By the impugned judgment and order the High Court dismissed the
appeal preferred by the defendants and affirmed the ex-parte decree for
specific performance passed by the Trial Court by its impugned judgment and
decree of January 7, 1998.
3. In view of the order that we propose to pass it is not necessary for us
to consider in detail the facts of the case and the issues that arise in the
suit, because we have reached the conclusion that the Trial Court was not
justified in passing an ex-parte decree in the facts and circumstances of the
case. We shall, therefore, notice the facts of the case only in so far as they
are relevant for disposal of this appeal.
4. It is not in dispute that late P.S. Multani (Defendant) and late Jawahar
Lal Jain (Plaintiff) were good friends. Late P.S. Multani owned a property
known as Brombley Estate in Shimla which comprised of about 20 bighas of land
with house and orchard (hereinafter referred to as "the property").
5. The case of the plaintiff late Jawahar Lal Jain was that an agreement to
sell the property to him was executed by late P.S.
Multani on March 26, 1982 for a sum of Rs.4,20,000/-. A sum of Rs.40000/-
was paid as earnest money. Despite his best efforts late P.S. Multani did not
execute the sale deed. A suit for specific performance of agreement was filed
before the High Court at Shimla on March 26, 1985. Ten witnesses were examined
on behalf of the plaintiff. PW-8, S.C. Dave was under cross-examination which
remained inconclusive and was deferred to August 27, 1993. The matter was subsequently adjourned for production of documents and record etc.. The
matter was listed before the Court on several dates and ultimately the matter
came up before the Court on May 17, 1995.
On that date no one appeared on behalf of the parties. It appears that some
time in 1995 in view of the enhancement of the pecuniary jurisdiction of the
Court of the District Judge, the matter was transferred and assigned to the
Court of District Judge, Shimla for disposal. The record of the case also shows
that thereafter the matter was fixed before the Trial Court on several dates
and ultimately came up before the Court on January 7, 1998. On that day while the plaintiff's witnesses were present as also his counsel, no one
appeared on behalf of the defendant. PW-8 a witness who had been partly
cross-examined was present but there was no one to further cross- examine him. Witness
Rajinder Singh Sethi was examined as PW-10.
The order of the Trial Court passed on that day is quoted below in extenso:-
"7.1.1998: Present: Plaintiff's counsel Shri Deepak Gupta.
Witness PW-8 S.C. Dave and witness Shri Rajinder Singh Sethi.
None for the defendant. Hence proceeded ex-parte.
There is no one to further cross-examine PW-8 Shri S.C. Dave. Statement of
Shri Rajinder Singh Sethi PW-10, has been recorded. Arguments heard.
Put up for pronouncement of judgment in the after noon.
Sd/- District Judge, Shimla.
7.1.1998: (Case called again for the pronouncement of the judgment) After
the evidence had been recorded and the ex-parte arguments had been heard and
even judgment had been dictated to the P.A., an application was moved by the
defendant's counsel Shri R.L. Sood making prayer for the re-call of the order
for pronouncement of judgment. Since the application has been moved after the
hearing stood completed and the case was adjourned to post lunch session for
pronouncement of judgment, the same is not maintainable in view of law laid
down by the Hon'ble and others" A.I.R. 1964 S.C.993. Moreover, no ground,
leave alone a sufficient ground, has been shown in the application for the
absence of the defendant and/or his counsel when the case was called.
Per separate judgment placed on the file, the suit is decreed. Formal decree
sheet be drawn accordingly. Record be completed and consigned to the record
6. From the order aforesaid it would appear that the learned District Judge
decided to proceed ex-parte since neither the defendant nor his counsel was
present to cross-examine the witnesses examined by the plaintiff. After closing
the cross-examination of PW-8 and recording the statement of PW-10, the Court
proceeded to hear arguments advanced by Counsel for the plaintiff. After the
arguments were heard the Court directed that the matter be put up for
pronouncement of judgment in the after noon. It also appears from the order
aforesaid that the learned District Judge had dictated the judgment to his
personal assistant but before he could pronounce the judgment counsel for the
defendant made a prayer for recall of the order for pronouncement of judgment.
An application under Section 151 of the Code of Civil Procedure was filed for
setting aside the order to proceed ex-parte. This application was also disposed
of by the same order holding the same to be not maintainable. The Court further
observed that no sufficient ground had been shown for the absence of the
defendant and/or his counsel when the case was called.
The learned District Judge proceeded to deliver his judgment decreeing the
suit for specific performance.
7. It is not disputed that on January 9, 1998 an application under Order IX
Rule 13 C.P.C. read with Section 151 was filed for setting aside the ex-parte
decree dated January 7, 1998. However, the said application was not pressed by
the defendant in view of the fact that an appeal had been filed in the High
Court against the ex-parte decree dated January 7, 1998.
8. During the pendency of the appeal before the High Court both the
plaintiff Jawahar Lal Jain and the defendant P.S. Multani died. The legal
representatives of the plaintiff and defendant were brought on record to pursue
the appeal. The legal representatives of the deceased/defendant are the
appellants before this Court while the legal representatives of the plaintiff
are the respondents herein.
9. From the application filed for setting aside the ex-parte decree it
appears that on that day i.e. on January 7, 1998 both the advocates engaged by
the defendant were busy in the High Court and on account of some
misunderstanding that the other would be attending the Court of the District
Judge, neither of them was present when the matter was taken up by the learned
District Judge at about 11.30 a.m.. On account of their absence the learned
District Judge decided to proceed ex-parte. When the advocate for the defendant
was informed that the matter had been called out for hearing by the learned
District Judge he rushed from the High Court to appear before the District
Judge but by the time he reached the Court of the District Judge at about 12.05
p.m. he learnt that the Court had recorded the evidence and also heard
arguments in the matter and that the matter was to be put up later in the day
for pronouncement of the judgment.
In these circumstances, an application under Section 151 C.P.C was filed
praying that the order may be recalled and the witnesses be re- examined.
10. It was, therefore, submitted before us on behalf of the appellants that
having regard to the facts and circumstances of the case the learned District
Judge was not justified in proceeding with the matter ex-parte, particularly
when counsel for the defendant appeared before him soon thereafter and made a request
to re-call the order. This request was made before the judgment was pronounced.
However, the learned District Judge proceeded to pass an ex-parte decree on
the same day.
11. From the reply filed by the plaintiff/respondents to the application
filed by the appellants for setting aside the ex-parte decree it appears to be
the case of the respondents that the case was called out at 10.30 a.m. in the
Court of the learned District Judge and since no one was present on behalf of
the defendant it was again called out at about 11.30 a.m.. Since neither the
defendant nor his counsel was present when the matter was again called out the
Court decided to proceed ex-parte, and accordingly, after hearing arguments
reserved judgment to be delivered later in the day. The plaintiff submitted
that the counsel engaged by the plaintiff could have sent one of his juniors to
the Court of the learned District Judge to make a request for accommodating
them on account of their pre-occupation with matters before the High Court. The
minimum courtesy which the defendant was expected to show to the Court was also
not shown. It was, therefore, submitted that in the absence of the defendant
and his counsel, and in the absence of any request on their behalf, the Court
had no option but to proceed ex-parte.
12. Learned counsel for the parties have addressed us at length and cited
several authorities in support of their respective submissions. We are
satisfied that having regard to the facts and circumstances of the case this
appeal ought to be allowed and the ex- parte decree set aside.
13. It is no doubt true that when the suit was called out before the Court
of the learned District Judge counsel for the parties ought to have been
present in Court. If on account of any unforeseen or unavoidable reason it was
not possible for the defendant or his counsel to be present in Court, courtesy
demanded that a representation ought to have been made before the Court by any
other counsel so that the Court was informed that the counsel engaged were busy
in the High Court. If such a request was made, we have no doubt that the
learned District Judge would have accommodated counsel for the defendant. It is
not unusual for the lower Courts to accommodate counsel on whose behalf a
representation is made about their absence on account of remaining pre-occupied
before the High Court. We have no doubt that the counsel for the defendant were
remiss in not showing even the minimum courtesy expected of them.
It was argued on behalf of the appellants before us that the two advocates
engaged by the defendant miscalculated and under the impression that the other
would be attending the Court neither of them made an effort to send someone to
the Court of the District Judge to make a representation on their behalf.
14. However, it is equally true that soon after the Court heard arguments
and reserved judgment to be delivered later in the day, counsel for the
defendant appeared before him and filed an application and prayed that the
order may be recalled and the matter may not be proceeded with ex-parte. The
District Judge however refused to grant the prayer and held the application to
be not maintainable. He thereafter proceeded to pass a judgment and decreed the
suit for specific performance on the same day.
15. Having regard to the totality of circumstances we are of the view that
in the interest of justice this appeal must be allowed.
The learned District Judge recorded evidence, heard arguments and posted the
matter later in the day for delivery of judgment. If the Court had adjourned
the proceedings to another day after deciding to proceed ex-parte, the
defendant could have applied for being permitted to participate in the
proceedings. In this case since everything happened on the same day the
defendant did not get an opportunity to do so. The learned District Judge
decided to proceed ex-parte. It thereafter examined the witnesses present in
Court and proceeded to hear arguments. It reserved its judgment to be
pronounced later in the day. Even before he could pronounce judgment counsel
for the defendant had moved an application before him for recall of the order.
It is true that in view of the law laid down by this Court in Arjun Singh
(supra) the learned District Judge could not have entertained an application under
Order IX Rule 7 C.P.C. We have also no hesitation in observing that counsel of
the defendant were not careful enough to inform the learned District Judge
about their pre-occupation before the High Court which prevented them from
being present in his Court when the case was called for hearing.
But the passing of an ex-parte decree in a case of this nature is too harsh
a consequence to be upheld. The defendant cannot be made to suffer an ex-parte
decree particularly when he was not at fault, having duly instructed his
counsel to appear before the Court of the learned District Judge.
16. We are not delving into the technicalities of the legal questions argued
before us because we are of the view that in the facts of this case the
interest of justice demands that the ex-parte decree be set aside. We
appreciate that the learned District Judge could not entertain an application
under Order IX Rule 7 C.P.C., and even the application under Order IX Rule 13
was dismissed as not pressed.
But nothing prevented the High Court from setting aside the ex-parte decree
in the appeal preferred against it.
17. Shri K.K. Venugopal, learned senior counsel appearing on behalf of the
respondents submitted before us that if the ex-parte decree is set aside, the
appellants may take undue advantage of the death of the defendant. They may now
seek amendment of the written statement and set up fresh pleas. Counsel
referred to the decree suffered by the wife of the defendant Smt. Lal Devi,
appellant No.1 herein in Civil Suit No.259 of 1999 dated April 6, 2002 whereby
a decree for permanent prohibitory injunction restraining the defendant No.1
from selling or conveying the property mentioned therein has been passed. He,
therefore submitted that the setting aside of the ex- parte decree may give to
the appellants an undue advantage and they may raise all sorts of pleas to
defeat the just claim of the respondents.
They may find ways and means of delaying the suit which has already been
18. We have no doubt that the Courts are not helpless. When parties adopt
unfair or delaying tactics Courts have abundant powers to deal with such
situations. We direct the Court of District Judge who shall try the suit to
proceed with utmost expedition so as to conclude the suit within a period of
six months from the date on which the parties appear before him. He shall not
grant adjournment unless it becomes absolutely necessary. To the extent
possible he shall proceed with day-to-day hearing of the suit.
19. In the result this appeal is allowed and the impugned judgment and order
of the High Court as also the ex-parte decree passed by the Court of the
learned District Judge on January 7, 1998 are set aside. The Trial Court is
directed to proceed with the suit in accordance with law so as to dispose it of
within a period of six months from the day of which the parties appear before
it pursuant to this Court's order.
20. The parties are directed to appear before the Court of the learned
District Judge for further directions on June 11, 2007.
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