AI Structured Summary
Not yet generated for this judgment
Judgment
The first defendant in O.S. No. 338 of 1982 on the file of the City Civil Court, Madras has suffered an order of dismissal on 08.02.1996, of her
application in I.A. No. 2039 of 1986 to set aside the ex parte decree dated 26.09.1984. The appellant preferred an appeal in C.M.A. No. 553 of
1986 before this Court and that was also dismissed on 15.07.1994. Aggrieved by the same, the appellant preferred this appeal under Clause 15 of
the Letters Patent. During the pendency of the appeal, the appellant died and the legal representatives were brought of record. The
respondent/plaintiff filed the suit for delivery of vacant possession of the suit property and for profits. The suit property was brought to sale u/s
69of the Transfer of Property Act and the plaintiff purchased the same in a public auction held on 31.12.1979 for a sum of Rs. 52,700/-. The
plaintiff paid Rs. 13,200/- on 31.12.1999 itself and the balance of the sale consideration was paid on 11.01.1980. The sale deed was obtained on
13.05.1981. The first defendant/appellant questioned the sale and also filed a pauper O.S. 491 of 1981 against the respondent/plaintiff praying for
a declaration that the auction sale was not valid and for injunction. The suit was posted for trial on 27.09.1984 and the appellant did not appear to
conduct the suit and hence, she was set ex parte and an ex parte decree was passed on 27.09.1984.
The appellant filed an application to set aside the ex parte decree and in the affidavit filed in support of the petition had stated that she was under
treatment for vertigo from 25.09.1984 to 27.09.1984 and the doctors advised her to take rest for another three days and only in the said
circumstances, she was not able to be present on 26.09.1984. To support her contention, she had also filed a medical certificate. But, however,
the trial Court did not accept her case and dismissed the petition on the ground that the petitioner was not examined and the doctor, who had
issued the medical certificate was not examined and that the petitioner had already been once set ex parte and there was ""no sufficient cause"" to
allow the petition. The learned single Judge of this Court accepted the findings of the trial Court and dismissed the appellant''s appeal in C.M.A.
No. 553 of 1986. As against the same, this appeal has been filed.
Learned advocate for the appellant, before us, has submitted that the appellant could not be present before the trial Court on 26.09.1984 only
due to her ill-health and she was aged about 65 years at that time and a medical certificate was also produced before the trial Court to prove her
illness, but the same was not accepted by the trial Court, but instead rejected, which resulted in deprivation of the appellant''s right to defend the
suit on merits, which is prejudicial to her interest also. It is further submitted that the appellant had also taken separate proceedings in O.S. No.
2491 of 1990 to set aside the Court auction sale. As the suit filed by the plaintiff is one for delivery of possession, in pursuance of the purchase of
the suit property in Court auction sale, u/s 69of the Transfer of Property Act, the appellants to prove their bona fides, has offered to deposit the
sale amount into court paid by the respondent to the auctioneer.
Learned advocate for the respondent would however resist the appeal on the ground that the appellant was not at all diligent in defending the
suit. It is also pointed out that the defendant/appellant once remained ex parte on 24.12.1982 and the same was set aside in I.A. No. 4566 of
1983 on costs. The suit came up for hearing on several occasions from 14.06.1984 to 26.09.1984 and on all those occasions, the appellant was
absent and hence, the court rightly set her ex parte on 26.09.1984 and a decree was passed and the same was also confirmed by the first
Appellate Court. It is further urged that the respondent took the property in the auction held 31.12.1979 and had deposited the entire sale
consideration and also obtained the sale deed on 18.05.1981 and the appellant prevented the respondent from taking delivery, which necessitated
the respondent to file the suit. The matter is hanging in the balance for the past more than 20 years. The appellant is also in possession of a portion
of the suit property and therefore, they are not at all interested in defending the case and allowed the suit to be decreed ex parte and filed an
application to set aside the decree and in the said circumstances, the appeal has got to be dismissed. He had also argued in support of and in
justification of the decree passed.
True it is that the suit was posted on 26.09.1984 for trial and for the appellant''s absence, it was decreed ex parte and the application to set
aside the same was filed on 29.10.1984 and the appellant also filed the Medical certificate to show that she was ill on the particular day, but the
petition was dismissed. It is further seen that the appellant had already taken necessary steps to set aside the sale and in the said circumstances, the
right of the appellant cannot be nipped in the bud itself and opportunity must be given to defend the case on merits.
On the contrary, learned advocate for the respondent has pointed out that the appellant was never diligent in conducting the case and her past
conduct should also be taken into account in deciding the issue. There is absolutely no sufficient cause to set aside the decree passed ex parte.
We have heard both the counsel for the parties and given our anxious consideration to the matter and now, the question is as to whether the
appellant has made out sufficient cause to set aside the decree, passed ex parte on 26.09.1984.
Order 9, Rule 13, of C.P.C. states
Setting aside decree ex parte against defendant:- In any case in which a decree is passed ex parte against a defendant, he may apply to the court
by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was
prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as
against him upon such terms as to costs, payment into court or other wise as it thinks fit, and shall appoint a day for proceeding with the suit.
It postulates two conditions or circumstances, under which, the ex parte decree could be set aside.
(1) If he (defendant) satisfies the court that the summon was not duly served.
(2) That he (defendant) was prevented by any sufficient cause from appearing in the court when the suit was called on for hearing. The case on
hand falls under second category.
The words ""Sufficient cause"" are nowhere defined in the Civil Procedure Code, which suggests, it has got to be construed with regard to the
facts and circumstances of each case. In the Law Lexicon, by S. Ramanatha Aiyar, 1997 Edition, the various possible explanations are given as
follows; ""Sufficient cause"" implies the presence of legal and adequate reason. The word ""Sufficient"" means ""adequate"", ""enough"", ""as much as may
be necessary to answer the purpose intended"". It embraces no more than that which provides a plenitude which, when done, suffices to accomplish
the purpose intended in the light of existing circumstances and when viewed from reasonable standard of practical and cautious men.
The Apex Court, in the case of New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, Adult, has stated what constitutes sufficient cause cannot
be laid down by hard and fast rules. The expression ""sufficient cause"" should receive a liberal construction. Even in condoning the delay u/s 5of the
Limitation Act, the Apex Court in the case of O.P. Kathpalia Vs. Lakhmir Singh (Dead) and Others, has observed.
If the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.
In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, the apex court observed
the expression ""sufficient cause"" is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of
justice - that being the life purpose for the existence of the institution of courts. It is common knowledge that this court has been taking a justifiably
liberal approach in matters instituted in this court
... when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the
other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
The Apex Court in the case of G.P. Srivastava Vs. Shri R.K. Raizada and Others, has held as under:
Under Order 9, Rule 13, C.P.C., an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the
summons were not duly served upon the defendant or he was prevented by any ""sufficient cause"" from appearing when the suit was called on for
hearing. Unless ""sufficient cause"" is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set
aside an ex parte decree. The words was prevented by any sufficient cause from appearing must be liberally construed to enable the Court to do
complete justice between the parties particularly when no negligence or inaction is impatable to erring party. Sufficient cause for the purpose of
Order 9, Rule 13, has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have 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 initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier.
In the instant case also, we feel that the cause shown by the appellant was sufficient for her non-appearance on 26.09.1984 and she cannot be
penalised for her previous negligence, if any, as it has already been overlooked and condoned by the court and she must be given opportunity to
defend the case on merits to meet the ends of justice. But, however, taking into consideration that the lis is pending from the year 1982 and the
respondent has been dragged from one Court to the other, he should be compensated by way of costs, which we fix at Rs. 5000/-.
In the result, the appeal is allowed and the decree and judgment of the learned single Judge of this Court and the trial Court are set aside. The
appellants are directed to pay Rs. 5000/- as costs to the other side. Consequently, C.M.P. Nos. 976 of 1995, 14427 of 1999 are dismissed and
C.M.P. No. 13507 of 2000 is ordered.
The appellant is further directed to deposit the entire sale consideration of Rs. 52,700/- paid by the respondent, together with interest at the
rate of 12% per annum from 11.01.1980 upto the date of this order within eight weeks. We make it clear that the deposit of sale consideration
does not confer any right upon the appellant and the same is subject to the result of the suit.
The parties are directed to appear before the trial Court on 06.12.2000 (Wednesday) without waiting for any notice from the trial Court and
should co-operate in conducting the case. Taking note of the fact that the matter is pending from the year 1982, the trial Court is hereby directed
to dispose of the suit as expeditiously as possible after giving due opportunity to both the parties, in any event, within six months from the date of
receipt of the copy of this order. The learned advocate for the appellant has brought to our notice that the other suit filed by the appellant in O.S.
No. 2491 of 1990 is also pending and the same may also be ordered to be tried along with the suit. If that suit is ripe for trial, the appellant can
take necessary application before the Court concerned for the joint trial or simultaneous trial of the suit and the trial Court may consider the same
and pass appropriate orders and proceed with the matter in accordance with law.