A. Gurumma vs K. Simmaiya

Pritinker Diwaker, J.

Respondent/plaintiff filed a money suit against the appellants/defendants for Rs. 91,500 on 10.1.2007. On 5.5.2008 when the case fixed for cross examination of the plaintiffs'' witnesses, there was no representation on behalf of the defendants and therefore the Court below proceeded ex parte against the defendants. On the said date evidence of all the parties was directed to be closed, arguments were heard and final judgment and decree was also passed. According to the defendant No. 2, on 9.4.2010 when attachment warrant was received in the office he came to know about some judgment against him. On further inquiry, he came to know that on 5.5.2008 ex parte judgment and decree was passed against him. On 15.4.2010 the defendants filed an application tinder Order IX Rule 13 read with Section 151 CPC for setting aside the ex parte judgment and decree. By the impugned order dated 1.12.2010 the above application filed by the defendants has been rejected by the Court below and it is this order which is under challenge in this appeal.

Counsel for the appellants/defendants submits that the defendants had engaged one Tarun Sarkar advocate of Durg who in turn engaged Shri Chandra Shekhar Pandey-local advocate of Raipur to defend their case but on account of some confusion between the two advocates and illness of Tarun Sarkar, on 5.5.2008 there was no representation on behalf of the defendants and therefore the Court proceeded ex parte against them. She submits that in all fairness on 5.5.2008 when the defendants were not represented, the Court below could have proceeded ex parte against them but could not have passed the ex parte judgment and decree. She submits that judgment and decree has been passed in a hurried manner without giving sufficient opportunity to the defendants.

On the other hand, counsel for the respondent/plaintiff supports the order impugned and submits that there is no legal rider for the Court to pass ex parte judgment and decree on 5.5.2008 when there was no representation on behalf of the defendants. He submits that much prior to receiving attachment warrant, on 13.3.2009 it was within the knowledge of the defendants that ex parte judgment and decree was passed against them and that is why they had appeared in the execution proceedings and had also signed the order sheet. He submits that the Court below is justified in rejecting the application filed by the defendants because no sufficient reason was assigned by the defendants for setting aside the ex parte judgment and decree.

Heard counsel for the parties and perused the documents on record.

From the record it is apparent that on 5.5.2008 there was no representation on behalf of the defendants and therefore the Court below was justified in proceeding ex parte against them. True it is that on the same date i.e. 5.5.2008 the Court below had closed the evidence of the plaintiffs and defendants and after hearing the arguments it also passed the judgment and decree but this order cannot be faulted with simply because in one day everything was done by the Court below. There was no legal bar for the Court below to pass such order when there was no representation on behalf of the defendants. As there was no representation on behalf of the defendants, the Court below may have thought it proper to pronounce the judgment and on this ground alone no fault can be attributed to the impugned order.

So far as, the reason assigned by the defendants in their application for setting aside ex parte judgment and decree is concerned, they have categorically stated that they were totally dependent on the counsel and as no information was given to them, they could not do anything. From the record it appears that on 13.3.2009 the defendants had appeared before the Executing Court. At the same time, record also goes to show that defendants are not educated and being South Indians they could not understand Hindi properly and were under the impression that 13.3.2009 was the date for the original suit in continuation of the earlier proceedings and therefore the order-sheet dated 13.3.2009 was signed by the defendant No. 2.

The defendants have shown sufficient cause for their non-appearance on 5.5.2008 and as it was a money suit, if opportunity is not given to the defendants they will suffer irreparable loss. On the contrary, if an opportunity is given to the defendants to contest their case, there would be evidence of both the sides before the Court below to come to the correct conclusion about the rights of the parties.

Considering the facts and circumstances of the case and documents on record, this Court is of the view that the order impugned cannot be allowed to stand and it is accordingly set aside. Consequently, the ex parte judgment and decree dated 5.5.2008 is also set aside subject to payment of cost of Rs. 3,000.

Matter is remitted back to the IV ADJ Raipur to decide the case after giving opportunity to the parties in accordance with law. Parties are directed to appear before the said Court on 20.3.2014. Registry is directed to sent back the record of the Court below forthwith.