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Hari Ram Keer vs State Bank Of India on 28 April, 2005

Madhya Pradesh High Court
Hari Ram Keer vs State Bank Of India on 28 April, 2005
Equivalent citations: 2005 (3) MPHT 147
Author: A Naik
Bench: A Naik


JUDGMENT

Abhay Naik, J.

1. The appeal is directed against order dated 18th August, 1998 passed by the Court of II Additional District Judge, Hoshangabad in M.J.C. No. 5/97, whereby the application under Order 9 Rule 13, CPC for setting aside the ex-parte judgment and decree dated 1-7-1995, has been rejected.

2. It is unnecessary to burden the case with the facts giving rise to the judgment and decree in favour of State Bank of India, except that in Civil Suit No. 96-B/94, the present appellant (defendant therein) was served with summons who participated in the proceedings of the Civil Suit through an Advocate duly engaged by him. He, however, stopped taking part in the proceedings and remained absent. Consequently, an ex-parte judgment and decree was passed against him on 1st July, 1995.

3. The appellant submitted an application under Order 9 Rule 13 of the CPC for setting aside judgment and decree on the ground that he had become “Sadhu” in February, 1988 and had proceeded on pilgrimage. He came back in September, 1992 and again proceeded for religious purposes on 13-10-1992. In February, 1995 he came back. Since, he had become physically quite weak, his Counsel had assured him that he will take care of the litigation. So, he had proceeded on pilgrimage. It was further stated in the application that the plaint was also amended after drawal of ex-parte proceedings and no notice of amended averments was given to the defendant/appellant. Defendant prayed that the ex-parte order dated 13-3-1991 may be set aside and the civil suit be restored to the position as on 3-10-1988.

4. The application was opposed in the Trial Court by the plaintiff/respondent vide its written reply.

5. The learned Trial Judge vide his order dated 18th August, 1998 rejected the application with following findings :–

(i) That the application under Order 9 Rule 13 of the CPC was barred by limitation and no application for condonation of delay for belated submission of application under Order 9 Rule 13 of the CPC was submitted.

(ii) The defendant/appellant has failed to establish any sufficient cause for setting aside the ex-parte judgment and decree.

6. The learned Counsel for the appellant submitted that sufficient cause was established by the appellant for setting aside the ex-parte judgment and decree. He further submitted that the learned Trial Judge ought to have granted an opportunity for filing of an application under Section 5 of the Limitation Act. He further argued that the plaint was amended after the ex-parte proceedings were drawn against the appellant and the learned Trial Judge ought to have issued fresh summons/notice in respect of the amended averments of the plaint and further without issuing such notice no ex-parte judgment and decree could have been passed.

7. I have considered the submissions made by the learned Counsel in the light of the record of the case. The ex-parte judgment in Civil Suit No. 96-B/94 was passed on 1st July, 1995. The application under Order 9 Rule 13 of the CPC was submitted on 9-8-1997. On the application the date is mentioned as 7-8-1979. However, that is apparently a typographical error because it was submitted after the ex-parte judgment and decree was passed. The contents of the application clearly reveal that the application was submitted in August, 1997. In the application the appellant has mentioned that in February, 1995, he came back from pilgrimage. However, there is no explanation/justification for the absence during the period from March, 1995 to August, 1997. Although he has mentioned that he had become physically weak but the same has not been substantiated by filing any medical certificate. Moreover, the details of ailment were also not mentioned in the application for setting aside the ex-parte judgment and decree. As regards the advice of Advocate, firstly, the appellant has not mentioned about the particulars of the advising Counsel. Secondly, no such affidavit is on record specifying the identity of the advising Counsel. No affidavit was submitted by such Advocate. In the absence of the same, the learned Trial Judge has rightly disbelieved the reason assigned by the applicant for absence at the relevant period.

8. The next contention of the appellant is that the learned Trial Judge ought to have issued summons/notice to the defendant/appellant about the amendment effected after the ex-parte proceedings were drawn against the defendant/appellant. Normally a civil suit shall proceed on the basis of pleadings contained in the plaint at the time when the defendant is served with the summons/notice and in case of amendment of substantive nature, it is always desirable that such a defendant shall be again served with the summons/notice in respect of the amended averments. However, every amendment incorporated after drawal of ex-parte proceedings does not entitle a defendant with re-service of summons/notice. It depends on the nature of amendment inserted after drawal of ex-parte proceedings. In the present case, the amendment inserted on 9-10-1997 is in respect of merely an additional mode of relief in the relief clause. It did not provide any additional factual foundation and did not give any additional or new cause of action to the plaintiff. The amendment effected in the plaint is not of substantive nature so far as the pleadings are concerned. Therefore, no notice was necessary on the defendant even though ex-parte proceedings were already drawn against him. Third contention of the learned Counsel for the appellant is that an opportunity for moving an application under Section 5 of the Limitation Act ought to have been granted, in view of the law laid down by the Apex Court in the case of State of M.P. and Anr. v. Pradeep Kumar and Anr., reported in (2000) 7 SCC 372. The law enunciated by the Apex Court is keeping in view Order 41 Rule 3-A(1) of CPC. The analogy of the ruling (supra) is not applicable in an application under Order 9 Rule 13, CPC because there is specific provision in the nature of Order 41 Rule 3-A(1) of the CPC. No such parallel provision is contained in Order 9 Rule 13 of the Code of Civil Procedure. Moreover, it is significant to note that the appellant has not given any factual foundation for condonation of delay in the application under Order 9 Rule 13 of the CPC and has not made any prayer for seeking condonation of delay caused in submission of application under Order 9 Rule 13 of the CPC. Thus, there is lack of factual foundation as well as legal ingredients required for condonation of delay. The suit giving rise to the ex parte judgment and decree was filed long back in the year 1984. The defendant/ appellant knowing fully well has chosen to avoid the proceedings of the suit on merits. The ex-parte judgment and decree passed by the learned Trial Court does no warrant any interference because the defendant/appellant has failed to establish sufficient cause requisite for setting aside the ex-parte judgment and decree.

9. Accordingly, the appeal has no force and is dismissed, however, without order as to costs.

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