ORDER
A.M. Sapre, J.
1. This appeal is preferred by one of the defendants of Civil Suit No. 21-A/91 under Order 43 Rule (1) (d) of C.P. Code against an Order dated 12-3-1997, passed by XIV Additional District Judge, Indore, in CMJC No. 4/95 arising out of CS No. 21-A/91. By impugned order, the application made by the appellant under Order 9 Rule 13 of C.P. Code seeking to set aside the ex-parte decree has been rejected. Facts in brief for the disposal of this appeal need mention infra.
2. Respondent No. 1 (plaintiff) filed a Civil Suit No. 21-A/91 against the appellant (defendant) and the respondent Nos. 2 and 3 claiming specific performance of contract in respect of agricultural land on the basis of contract entered into between appellant and one late Manohar Chunekar – father of appellant.
3. The suit was being contested by the appellant. A written statement was filed. Issues were framed.
4. On 7-2-1995, the case was fixed for recording evidence of both the parties. On this date, counsel appearing for appellant and also for another defendant reported no instructions. The learned trial Judge, therefore, proceeded ex-parte against the appellant (defendant) on 7-2-1995 and fixed the case for ex-parte evidence on 8-2-1995. The learned trial Judge then recorded plaintiffs ex-parte evidence on 8-2-1995 and closed the case. On 14-2-1995 the suit filed by the plaintiffs was decreed ex-parte, resulting in grant of decree for specific performance, in favour of plaintiff (respondent No. 1) and against the appellant (defendant) and other defendants – who according to plaintiff were subsequent purchaser of suit land.
5. This gave rise to filing of application by the appellant under Order 9 Rule 13 of C.P. Code seeking setting aside of the ex-parte decree. In the application, the appellant alleged that he was ill and in fact hospitalised for treatment from 5-2-1995 to 10-3-1995. According to appellant, it is this ailment that prevented him from contacting his lawyer as also from attending the Court. He alleged that he was not deliberate in his absence which was caused due to reasons beyond his reach. No sooner on 11-3-1995 he became fit to resume his normal duties as advised by his treating doctor, he contacted his lawyer who informed him about passing of ex-parte decree. Accordingly, the application was made.
6. The plaintiff (respondent) denied aforesaid allegations. Parties then led evidence. The appellant examined himself and also his doctor. He filed medical treatment papers to support his ailment during those dates.
7. By impugned Order the trial Court refused to set aside the decree and rejected the application holding that the cause shown in the application does not constitute sufficient cause so as to entitle the Court to set aside the decree. It is against this order, the appellant (defendant) has filed this appeal.
8. Heard Shri P.K. Saxena, Sr. Counsel with Shri Saraf for appellant (defendant) and Shri S.C. Bagadia, Sr. Counsel with Shri A.P. Polekar for respondents (plaintiffs).
9. In substance, the submission of Shri Saxena, learned counsel for appellant was that the cause alleged in the application did constitute a sufficient cause for setting aside the ex-parte decree suffered by the appellant. It was his submission that approach of learned trial Judge was very harsh and technical in deciding Order 9 Rule 13 application. He urged that it should have been seen that apart from the facts that cause alleged was sufficient cause but the conduct of defendant was throughout bonafide. He also submitted that the suit involved a valuable land which the appellant had to forgo without trial. He urged that cost would have been a better substitute in the facts of the case. He relied on the decision rendered in [(1998) 2 SCC 206] Malkiat Singh v. Joginder Singh.
10. In reply, the submission of Shri Bagadia, learned counsel for the respondents (plaintiffs) was for upholding of the impugned order. He urged that the evidence led by the defendant to support the so called cause was full of contradictions as rightly noticed by the trial Court, while dismissing the application. According to him, the cause pleaded was neither bonafide nor constituted a sufficient one as required for setting aside of the decree.
11. Having heard the learned counsel for the parties and having perused the record of the case, I am inclined to set aside the impugned order. True it is, as it looks that there are some contradictions in evidence of appellant (defendant) and the doctor who was examined to prove the ailment, but the fact remained that defendant did fall ill and was hospitalised for ailment during the relevant dates. It is not a case where the appellant (defendant) set up entirely a false case for setting aside the decree. There is no finding that defendant was throughout negligent or indulged in delay in trial.
12. This reminds me of the observations of Vivian Bose, J., in the case of Sangram Singh v. Election Tribunal [AIR 1955 SC 425] where an eminent Judge while explaining the real object and scope of Order 9 made these apt observations:
“A Code of Procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provides always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”
13. Yet in another relevant case, their Lordships of Supreme Court in the case of Malkiat Singh v. Joginder Singh [(1998) 2 SCC 206] dealing with somewhat similar circumstance like the one we have in this case while accepting the case of defendant in getting rid of ex-pane decree made following observations:
“Para 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 Court. The appellants only came to know about the Order dated 18-11-1991 and the ex-pane decree dated 8-2-1992 when they approached their counsel on 6-6-1992. 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.”
“Para 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 8-2-1992 and the Order dated 18-11-1991, they filed the 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 fact 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 circumstance of the case, be said to be at fault and they should not suffer.”
14. Keeping the aforesaid principles enunciated by the Supreme Court while dealing with the applications of Order 9, if one examines the facts of this case then in my opinion the cause alleged by the defendant did make out a sufficient cause for setting aside the ex-parte decree.
15. I accordingly allow the appeal, set aside the impugned order. As a consequence, the ex-parte decree dated 14-2-1995, passed in C.S. No. 21-A/91 stands set aside. The Civil Suit No. 21-A/91 is restored to its file for its disposal on merits. I, however, impose a cost of Rs. 5,000/- on defendant (appellant) to be deposited in the trial Court as a condition to participate in the trial. Since the suit is an old one, I direct the parties to appear before the trial Court on 14-2-2000 to enable the trial Court to fix the case for cross examination of plaintiffs witnesses, and then for defendants witnesses. The trial Court will make sincere endeavour to dispose of the suit within four months.