Navneet Priya Shamji Maharaj Society vs Chuni Lal Sharma and Others

R.L. Anand, J.—Shree Navneet Priya Shamji Maharaj Society, through its President Shri Sohan Lal Gosain, has filed the present R.S.A and it has been directed against the judgment and decree dated 7.5.1999, passed by the Additional District Judge, Gurgaon, who set aside the ex-parte judgment and decree dated 15.10.1999, passed by the trial Court against the respondent Shri Chuni Lal and others.

Shree Navneet Priay Shamji Maharaj Society, through its Secretary, Shri S.K. Goswami, filed a suit for declaration and injunction praying that trust namely Shri Shyamji Maharaj Trust, New Delhi, created by defendants No.2 to 10, was illegal, unauthorised and had no sanctity in the eyes of law and that defendants No.1 to 10, had no right to interfere in the affairs of the Mandir Shree, Navneet Priya Shamji Maharaj and injunction was also granted by the trial Court in favour of the plaintiff against the defendant No.2 to 10 from entering into the Mandir premises and from interfering in the affairs of the Mandir etc. and defendants were also directed to account for the amount taken by them illegally.

It may also be mentioned here that the suit was filed by Shri Navneet Priya Shamji Maharaj Society through Shri S.K. Goswami against ten defendants including defendant Shri Chuni Lal Sharma, who was defendant No.9 in the trial court.

Shri Chuni Lal Sharma filed the first appeal before the Court of Additional District Judge, Gurgaon. It may also be mentioned here that some of the defendants also filed an application under Order 9 Rule 13 C.P.C. for setting aside the exparte decree.

When the appeal came up for hearing before the first appellate Court, it vide judgment and decree dated 7.5.1999, set aside the ex parte decree so far as Shri Chuni Lal Sharma was concerned and gave the directions to the trial Court to allow the defendant Shri ChuniLal Sharma, to cross-examine the witnesses of the plaintiff and further allowed the defendant No.9 to lead evidence in support of his case and then to dispose of the matter according to law.

Aggrieved by the judgment and decree of the first appellate Court, dated 7.5.1999, the present appeal has been filed by the plaintiff. I have heard the learned counsel for the parties and with their assistance have gone through the record of the case.

The learned counsel for the appellant has submitted that the first appellate Court has not given any opportunity to the plaintiff to establish that there was no sufficient cause on behalf of defendant No.9 not to appear before the trial Court. He submitted that in the absence of any issue or evidence, it was improper on the part of the Additional District Judge, Gurgaon to set aside the judgment and decree vis-a-vis Shri Chuni Lal Sharma, defendant No.9.

I do not subscribe with the argument of the learned counsel for the appellant. When an ex parte decree is passed, two rights open to a person who is affected by the ex parte decree; one is Under Order 9 Rule 13 C.P.C. for setting aside the exparte decree showing the sufficient cause and the second is that he can also file an appeal showing the illegality of the judgment and decree and the interim proceeding which merged into the judgment and decree. In this case defendant Shri Chuni Lal Sharma, engaged a counsel, issues Were struck, written statement was filed on behalf of the defendants. This shows the bona fides of the defendant No.9 that he always wanted to contest the suit. If the lawyer of defendant No.9 had not cross-examined the witnesses of the plaintiff and the lawyer did not inform defendant No.9 to bring his evidence, such litigant should not suffer for a fault of the lawyer.

In these circumstances, I do not find any illegality in the impugned judgment dated 7.5.1999, passed by the learned Additional District Judge, Gurgaon. The reasons advanced by the first appellate Court in paras No. 10 to 12 are quoted below:-

"10. I have considered the above referred arguments and gone through the record. There are admitted facts that civil suit titled Shree Navneet Priya Shamji Maharaj Society v. Pt. Chuni Lal and others was pending in the Court of Mrs.. Neelima Shangla, ASSJ, Gurgaon. An application Under Order 39 Rules 1 and 2. C.P.C. was filed and after hearing both counsel for parties, the learned lower Court observed that Pt. Chuni Lal (present appellant) has got prima facie case and others were restrained from interfering in the affairs, entering into Mandir premises and from removing any daily offerings/donations vide order dt. 5.5.1994. No appeal against the said order was filed.

Now coming to present impugned judgment and decree the learned Sub Judge has observe in para 5 of judgment regarding filing of written statement but at page 10 of the judgment it was observed that the defendants were called to lead evidence but no evidence was put forth and they were proceeded exparte on 6.11.1997.

This argument of the counsel for appellant appeals to my mind that there is substance in the submission made by appellant as he has filed affidavit to this effect. Other parties evidence was recorded and present appellant was not given any chance to cross-examine those witnesses. The appellant has been deprived of his valuable right to cross-examine the witness and he has also been deprived of leading his evidence in support of his contention which he has alleged in the written statement. It is principle of natural justice that nobody should go unheard. The present appellant has not been heard. So, keeping in view the facts and circumstances of the case, this appeal is hereby accepted and ex-parte order dated 6.11.1997 passed against the appellant and impugned judgment and decree dated 15.10.1998 are hereby set aside subject to payment of costs of Rs. 1,000/- by the appellant. Parties are directed to appear before the lower Court file be sent back. Decree sheet be drawn and file be consigned to record room."

Resultantly, I do not see any merit in this appeal and dismiss the same with no order as to costs.