Mathura Singh vs Mathura Pd. Singh and Others

The appellant has, in this appeal, challenged the decision of the court below rejecting his application under Order 9, Rule 13 of the Code of Civil Procedure. The suit was filed in Barh court by respondent No. 1 for a money decree amounting to Rs. 30,000/- and odd on the allegation that a sum of Rs. 24,000/- had been borrowed by the defendant No. I as the karta of his family in 1966. Other members of his family were impleaded as defendants 2 to 5, out of whom defendants 4 and 5 are minor and were placed by the court under the guardianship of a lawyer. The suit was taken up for hearing on 30-11-1972, when, the parties and their counsel were present in court. However, as the case had been called out late in the day, no evidence was led and the case was put down for further hearing next day. On the 1st of December, 1972, admittedly there was a strike by the advocates for the court in support of a certain political demand and no lawyer attended the court. The plaintiff, however, appeared in person and examined himself as a witness. Two other witnesses were also examined on his behalf without the assistance of a lawyer. Nobody appeared on behalf of the defendants and the court recorded an order in the order sheet, which is included in the paper book at page 13, that in the circumstances the proceeding had to be heard ex parte. Thereafter, the court below decreed the suit ex parte with costs against the defendants by a short judgment recorded in the order sheet. On the very next day, the defendant No. 1 filed, through his counsel, an application under Order 9, Rule 13 and Section 151 of the CPC which was registered as a miscellaneous case and has been, after contest, dig-missed by the impugned order.

The court has stated in paragraph 9 of its judgment that admittedly there was a strike by the lawyers but held that in the circumstances the defendant cannot be said to have been prevented by any sufficient cause within the meaning of Rule 13 from appearing in the suit.

We- have gone through the entire evidence led in the case by the parties. The appellant has examined seven witnesses in-cluding has himself and their evidence fully estab-lished that not only the lawyers of Barh were on strike but their clerks also did not attend the court and did not do any pairavi in heir cases. Several of the witnesses examined are lawyers'' clerks themselves. The statement made by O. W. 2 Nawal Kishore Pd. Singh who is also an advocate''s clerk that some of the clerks were taking steps by way of pairvi in their cases docs not inspire confidence. According to the oral evidence of the plain-tiff, the defendant No. 1 was personally pre-sent in court but still did not go inside the court room with the object of delaying the hearing of the suit. From the evidence it ap-pears that the defendant was present at Barh on that date and it must be assumed that he attended the court. However, if he was not able to get assistance of his lawyers it cannot be said that he was not prevented by suffi-cient cause in not taking part in the trial of the suit in which a decree for such a large amount of money has been claimed. It is not suggested that defendant No. 1 is well versed in legal matters and could have conducted the trial of the suit by himself. In this circornstance we accept the evidence of A. Ws. and hold that defendant No. 1 was presented from appearing and contesting the suit on 1-12-1972 by sufficient reason and on merits his application should be allowed.

Mr. Sinha, appearing for the plaintiff-ropondents has contended that since the par-the appeared on the 30th November, 1972, when the suit was taken up for hearing, the decree which has been passed in the case cannot be called an ex parte decree and conse-quently it must be held that the application under Order 9, Rule 13 is not maintainable. It is not possible to accept this argument, inasmuch as, the learned Subordinate Judge treated the proceeding on 1-12-1972 ai ex parte proceeding and said so in express terms in the order sheet. In the judgment again the Court in express terms observed that an ex parte decree was being passed. The relevant portion of the judgment is at page 15 of the paper book. The argument of the learned counsel for the plaintiff lands to the conclusion that the court was in error in considering the proceeding ex parte on 1-12-1972 and in passing an ex parte decree on that account. For the application of the provisions of Order 9, Rule 13, what is necessary is that there should have been passed an ex parte decree, irrespective of the question as to whether the ex parte decree could in law have been passed or not. Since the court did in fact pass an ex parte decree it has to be held that the application under Order 9, Rule 13 was maintainable. Besides, the court failed to appreciate that the suit should not have been heard and decided ex parte against the minor defendants in absence of their guardian-ad-litem. It was the duty of the court to have appointed a fresh guardian if the guardian already appointed was negligent in his duty in representing the minors.

For the reasons mentioned above the appeal is allowed, the judgment of the court below is set aside, and the application of the appellant under Order 9, Rule 13 filed in the court below is allowed. The suit having been filed in 1968 should now be taken up for hearing expeditiously. There will be no order as to costs.