Dwarika Prasad and Another vs Krishna Kumar and Others

Fakhruddin, J.—Heard.

Applicants are defendant Nos. 2 and 3. Respondent No. 1 is plaintiff, and respondent Nos. 2 to 5 are co-defendants.

The applicants have filed this revision petition against the order dated 12-10-2001 passed by the Civil Judge, Class-II in Civil Suit No. 204-A/2001 whereby application filed under Order 1 Rule 10 and Order 9 Rule 7 have been rejected.

Briefly stated facts are that the plaintiff filed a suit for eviction against the defendants on 19-7-78. During the pendency of the suit one of the tenant-partners Badriprasad died. The application for joining L.Rs. was filed and summons were issued to them to appear on the next date fixed but the proposed L.Rs. refused to accept the summons and did not appear and as such the Court proceeded ex-parte. The defendant Nos. 2 and 3 filed application to set aside the ex parte order dated 10-12-1993. Learned Trial Court held that there is no sufficient cause for condonation of delay and the application is vague. The Trial Court has referred to the previous order-sheets where it has been written that the notices were issued but on that day the Presiding Judge was not there.

Learned Counsel for the respondent submits that as per the order-sheet dated 15-3-97 it is evident that son of the defendant No. 2 refused to accept the summons and order sheet dated 24-2-97 shows that as defendant No. 3 refused to accept the summons therefore the same was pasted on the door of his house. Learned Counsel further submits that before 22-9-2001 defendant Nos. 2 and 3 never applied for setting aside of the exparte proceeding.

Hon''ble Supreme Court in a decision G.P. Srivastava v. R.K. Raizada and Ors., reported in (2002) 3 SCC 54, has held that "the Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence, which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. Hon''ble Supreme Court in another decision Sushil Kumar Sabharwal v. Gurpreet Singh and Ors., reported in JT 2002(4) SC 489, with regard to the service of summons has held that "the second proviso to Order 9 Rule 13, CPC added by the 1976 Amendment which provides that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. It is the knowledge of the ''date of hearing'' and not the ''knowledge of pendency of suit'', which is relevant for the purpose of the proviso abovesaid." Hon''ble Apex Court further held in the aforesaid decision that, "The provision contained in Order 9 Rule 6 of the CPC is pertinent. It contemplates three situations when on date fixed for hearing the plaintiff appears and the defendant does not appears and three courses to be followed by the Court depending on the given situation. The three situations are :--(i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte. The provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being ''proved'' that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard ex parte. The appointed for hearing the suit for which the defendant is summoned to appear is a significant that of hearing requiring a conscious application of mind on the part of the Court to satisfied itself on the service of the summons. Any default or casual approach on the part of the Court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his. If only the Trial Court would have been conscious of his obligation cast on it by Order 9 Rule 6 of the CPC the case would not have proceeded ex parte against the defendant appellant and a wasteful period of over eight years would not have been added to the life of this litigation."

Here in the instant case on 17-11-1994 the Court itself was on leave. Learned Counsel for the respondent submits that the application was filed belatedly after expiry of 3-4 years and this has been done in order to protect the litigation. Delay no doubt is there but it can well be compensated by imposing the cost.

Having thus considered the facts and circumstances of the case as discussed above, the ex parte order is set aside subject to the payment of cost of Rs. 1000/-. Since the suit is pending since 1978, the written statements if any be filed within 15 days and the matter shall be decided as early as possible preferably within a period of 6 months from the date of production/receipt of copy of this order. If summons etc. are required to be served, dasti service may be effected. Every efforts shall be made to complete the trial within a period of six months.

Certified copy as per rules.