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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. Civil Misc. Appeal No.590/2009.
(Prem Singh Vs. Rama Kishan)
DATE OF JUDGMENT : November 21, 2009.
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Mr. Sajjan Singh/Mr. J.K. Bhaiya for the appellant.
Mr. N.R. Choudhary for the respondent(s).
Reportable
BY THE COURT :
In this miscellaneous appeal filed under Section
104, read with Order 43 Rule 1, C.P.C., the defendant-
appellant is challenging the impugned order dated
20.01.2009 passed by the Addl. District Judge No.3,
Jodhpur in Civil Misc. Application No.95/07 and prayed
that the application of the appellant filed under Order 9
Rule 13, read with Section 151, C.P.C. for setting aside
the ex parte judgment and decree dated 11.06.2006
may be allowed.
As per facts of the case, a suit for mandatory and
permanent injunction was preferred by respondent-
plaintiff before the District Judge, Jodhpur. In the said
suit, after issuing notice by the trial Court, written-
statement was filed by the appellant-defendant and,
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later on, issues were framed and trial Court proceeded
for the trial. On 12.11.2005, an application under
Order 11 Rules 12 & 14, C.P.C. was filed by the
respondent-plaintiff for seeking direction to the
appellant-defendant to place on record the original sale-
deed of his house. In pursuance of the order dated
11.11.2005, after taking two adjournments, on
27.05.2006, said document was placed before the Court
as ordered by the trial Court. The matter was ordered
to be fixed on 24.07.2006; but, on that date, due to
non-appearance of counsel for the appellant-defendant,
ex parte order was passed against the appellant-
defendant and the learned trial Court proceeded to
conduct the trial. Finally, after providing opportunity to
lead evidence to the plaintiff, the learned trial Court
decreed the suit vide judgment dated 11.09.2006 in
absence of the appellant-defendant because ex parte
order was made due to non-appearance of the counsel
for the appellant-defendant on 24.07.2006. Learned
trial Court vide judgment dated 11.09.2006 decreed the
suit and passed decree for permanent injunction and
specifically the following order was passed :
“अत: व द क व द पततव द क ववरद एकपक य
सवयय ड क ककय व पततव द क ववरद आज पक
त षध ज इस आशय क पर#त क ज त ह& कक वह
3व द क मक क प(व) ददश म, स./त व दग.त
# .त क जम गल म, अततकमण क#त ह4ए
व द क मक क प(व5 द व # म, कश म, म क) ए
ख8डक क: ब स ब /रम क
त म )ण क#व य ह& एव< गल क अगल दह.स म,
कश म, म क) ब व ई ./ प# प ल#: क
त म )ण क#त ह4ए व ई ./ प# ल@ह क फ टक
लग ई हC उस द: म ह क भ त# अप 8चF स हट
लव, पततव द द # ऐस ह < क# प# व द
नय य लय स पततव द क 8चF प# उक त म )ण क:
हटव क अधधक # ह:ग । पततव द क:
जर#य ./ ई त षध ज भ प ब<द ककय ज त हC कक
वह व दग.त गल क जम प# अततकमण क#त
ह4ए क:ई भ त म )ण क य) ह क: ब<द क#, क:ई अव#:ध पCद
क#, व व द क मक क श <ततप(वक) उपय:ग
उपभ:ग म, ब ध उतपन ह ।"
The appellant-defendant filed application under
Order 9 Rule 13, read with Section 151, C.P.C. for
setting aside the aforesaid ex parte judgment and
decree dated 11.09.2006. In the said application, after
issuing notice, reply was filed by the plaintiff-
respondent to the application filed under Section 5,
Limitation Act, so also, against the application filed
under Order 9 Rule 13, C.P.C.
Before the learned trial Court, respondent-plaintiff
specifically pleaded that delay in filing application under
Order 9 Rule 13, C.P.C. which is near about one year
cannot be condoned on the ground that fact of passing
the ex parte order was well within the knowledge of the
appellant defendant; but, without assigning any proper
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reason, the said application has been filed. It is also
stated in the reply that due to non-appearance of his
counsel, order to proceed ex parte against the
defendant was passed by the trial Court on 24.07.2006,
in which, there is no illegality because ample
opportunity prior to passing of this order was granted in
presence of the counsel for the appellant-defendant;
and, thereafter, nobody appeared before the trial Court
till final adjudication on 11.09.2006 and, so also, no
reasonable explanation has been given for the delay of
one year in filing application under Order 9 Rule 13,
C.P.C. after lapse of one year on 06.10.2007. Learned
trial Court after hearing both the parties refused to
condone the delay and rejected the application un der
Order 9 Rule 13, C.P.C. solely on the ground of
limitation vide impugned order dated 20.01.2009.
While challenging the said order, learned counsel
for the appellant vehemently argued that after filing the
sale-deed as ordered by the trial Court on 27.05.2006,
no information whatsoever was given by his counsel
and counsel did not appear on the next date of hearing
before the trial Court which is 24.06.2005 and, in
absence of any information, passing of the final decree
ex parte did not come to the knowledge of the appellant
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and this fact was brought to the notice of the Court by
way of filing application under Section 5, Limitation Act;
but, the learned trial Court refused to accept the
explanation of the appellant for the delay in filing the
application after one year of passing of the ex parte
decree, therefore, the impugned order is illegal and
deserves to be set aside.
Further, it is argued by learned counsel for the
appellant-defendant that on 24.05.2005 he was
informed by his counsel that during further proceedings
he was not required to attend the Court and he would
be informed; but, unfortunately, the counsel remained
absent and did not inform him and, finally, notice for
execution was issued by the Court and reached
appellant-defendant, then, it came to the notice of the
appellant that there is ex parte decree against him and
all these facts have been narrated in the application
filed under Order 9 Rule 13, C.P.C. for setting aside the
ex parte decree dated 11.09.2006 but without
application of mind and without giving cogent reasons,
the learned trial Court rejected the application which is
totally erroneous because no other facts than the facts
narrated above have been submitted by counsel for the
respondent-plaintiff before the trial Court. Only ground
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was raised that there is gross negligence of the
defendant for his non-appearance before the Court,
therefore, in this view of the matter, the learned trial
Court ought to have considered important aspect of the
matter that required document was produced before the
trial Court on 04.05.2006 and, thereafter, his lawyer
was to attend, for which, appellant should not suffer.
Per contra, Learned counsel for the respondent-
plaintiff vehemently argued that there is no error in
declining to condone the delay in filing application under
Order 9 Rule 13, C.P.C. for setting aside the ex parte
decree because the application was filed after delay, for
which, no reasonable explanation is given by the
appellant-defendant except the reason that his counsel
did not inform him, but, in fact, he was having
knowledge of the ex parte order or ex parte decree but
he has not chosen to approach the Court just to delay
the matter, therefore, on the basis of the conduct of the
appellant-defendant he is not entitled to seek any relief
from this Court and order passed by the trial Court is
perfectly in consonance with law and does not require
to be interfered with.
I have considered the rival submissions advanced
by both the parties and perused the material on record.
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It is true that application for setting aside the ex
parte order or ex parte decree should be filed within
limitation; but, in the present case, admittedly, on
24.05.2006 document as ordered by the trial Court was
produced for perusal of the Court and for adjudication,
which is on record; but, on the next date of hearing i.e.,
25.07.2006, the Court ordered to proceed ex parte in
the matter; meaning thereby, till 24.05.2006, the
appellant-defendant was very much before the Court.
Upon perusal of the entire record, facts come out
that application was filed after delay of one year for the
reason that order for proceeding ex parte was passed in
the matter. In my opinion, merely on the basis of
presumption, order for proceeding ex parte against the
defendant-appellant was passed, therefore, application
filed under Order 9 Rule 13, C.P.C. along with
application under Section 5, Limitation Act was to be
accepted. The learned trial Court proceeded in the
matter in a very strict manner and passed ex parte
decree against the appellant-defendant.
Before the Court of law normally litigant should
not be thrown out of hearing and is required to be given
ample opportunity and, for the same, Courts are
required to take lenient view. Of course, if the conduct
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is found to be contrary, Court may act strictly. In this
view of the matter, while accepting the reasons for non-
appearance before the Court in this case when ex parte
decree was passed, I am of the opinion, that order
impugned dated 20.01.2009 does not deserve to
survive. It is settled principle of law that for the lapse
on the part of the counsel the litigant should not be
made to suffer.
Consequently, this appeal is allowed. Order
impugned dated 20.01.2009 is set aside and application
filed by the appellant-defendant under Order 9 Rule 13,
C.P.C. is ordered to be allowed while accepting the
application moved under Section 5, Limitation Act for
condonation of delay in filing the application for setting
aside ex parte decree. As a result, ex parte judgment
and decree dated 11.06.2006 is set aside with cost of
Rs.2,000/-. The matter is remitted to the trial
Court for deciding the suit itself within a period of
six months in accordance with law. Both the
parties shall remain present before the trial Court
on 15.12.2009.
(Gopal Krishan Vyas) J.
Ojha, a.