Radha Bai vs Bhawna & Ors

This revision under Section 115 of CPC has been filed against the order dated 12.01.2019 passed by the First Additional District Judge, Guna, District Guna in M.A No.03/2019 thereby dismissing the appeal filed by the applicant under Order 43 Rule 1 CPC against the order dated 27.11.2015 passed by the First Additional Judge Guna to the Court of First Civil Judge, Class II Guna in Civil Suit No.02/15 by which the application filed under Order 9 Rule 13 read with Section 151 of CPC has been rejected.

The necessary facts for the disposal of the present revision in short are that the applicant was facing a civil suit filed by the respondents for declaration of title and permanent injunction. The case was fixed for recording of plaintiffs evidence on 20.11.2014. It is alleged that the power of attorney holder of the applicant was present on 18.11.2014 and since he is the resident of Indore and because of lack of public conveyance between Indore and Guna he could not appear before the trial Court on 20.11.2014. Accordingly, the applicant was proceeded ex-parte. He came to Guna on 18.12.2014 and applied for certified copies of the order sheets of the trial court along with the order sheet dated 30.11.2014.

It is the case of the applicant that on 19.12.2014 he prepared an application under Order 9 Rule 7 CPC and tried to file the same before the trial Court. However, the trial Court refused to accept the said application on the ground that the concerning clerk is on leave and even if the application is accepted, then there is no body to take out the file, therefore, the applicant must come on the next day and thereafter the trial Judge left the Court by saying that the Court working hours are over. On next day i.e. on 20.11.2014 when the applicant again tried to file an application under Order 9 Rule 7 CPC, then he was told that the file has been sent to the copying section. Accordingly, the applicant went to copying section and then he was told that the certified copy of certain documents are under preparation and, therefore, the applicant can obtain those copies after depositing the requisite fee. The applicant thereafter deposited the requisite fee and obtained the certified copies. Thereafter, the applicant came to know that infact a judgment has already been passed on 20.12.2014, as a result of which, the applicant felt very bad. Thereafter, it appears that on 1.1.2015 the applicant filed an application under Order 9 Rule 13 CPC along with an application under Section 151 of CPC for setting aside the ex-parte judgment and application under Section 151 CPC was filed for not signing the decree. It appears that the application filed under Section 151 CPC was rejected by the trial Court on 1.1.2015 and it was held that the decree has already been signed and the judgment has also been delivered. It appears that the application filed by the applicant under Order 9 Rule 13 CPC was rejected by the trial Court by order dated 27.11.2015. Being aggrieved by the order dated 27.11.2015 the applicant filed a misc. appeal which too has suffered dismissal by order dated 12.01.2019 passed by the First Additional District Judge, Guna in Misc. Appeal No.3/19.

Challenging the orders passed by the court below, it is submitted by the counsel for the applicant that the applicant could not appear before the trial Court on 20.11.2014 when the case was fixed for recording of evidence of the plaintiffs. It appears that the son of the applicant namely Satyanarayan submitted an affidavit before the trial Court on 20.06.2015 mentioning therein that as he was not well, therefore, he could not appear on 20.11.2014 and therefore, the case was adjourned 27.11.2014 for recording the evidence of the plaintiffs after proceeding ex-parte against the applicant. As the printer of the Court was not working, therefore, the case was again adjourned to 5.12.2014 and on the said date the evidence was closed and the case was fixed for final arguments on 15.12.2014 and on 15.12.2014 after hearing the final arguments the trial Court had passed the judgment on 20.12.2014.

It is also mentioned by Satyanarayan that after attending the Court case on 17.11.2014 when he went back to Indore he fell ill, therefore, he could not appear before the trial Court on 20.11.2014 and since his counsel was also out of station, therefore, the applicant was proceeded ex-parte. It was further pleaded that on 18.12.2014 an application was filed for obtaining the certified copies and accordingly on 19.12.2014 an application under Order 9 Rule 7 CPC was filed but the trial Court refused to accept the same on the ground that the clerk is not available and therefore there is nobody to take out the file and thereafter went away. On 20.12.2014 when he again came to the court, then he came to know that the file is not available with the court and it has been sent to copying section and thereafter he came to know about the passing of the judgment by the trial Court on 20.12.2014 itself. During the cross-examination he fairly conceded that he is not the defendant in the civil suit. Even he could not clarified that who had treated the applicant from 17.11.2014 to 20.11.2014. Although, he had denied the suggestions that from 17.12.2014 to 20.11.2014 neither the applicant nor Satyanarayan were ill.

The respondents in support of their case have examined Hariom Choubey (DW/2) an employee working in the office of copying section who has stated that on 17.11.2014 Satyanarayan had filed an application for grant of certified copies of certain documents which were ready on 17.11.2014 itself and were delivered to Satyanarayan on 18.11.2014. It is further submitted that again an application was filed for grant of certain certified copies of the documents which was delivered on 04.12.2014. However, in cross-examination he admitted that in Ex-D/1 the dates 17.11.2014 and 20.11.2014 have been mentioned by mistake. Thus, the contention of the applicant is that on 19.12.2014 when the applicant tried to file an application under Order 9 Rule 7 CPC, the same was not accepted by the court by saying that the clerk has gone and it is mentioned in the application under Order 9 Rule 13 CPC that thereafter the trial Judge also left the court by saying that the court hours are over.

During the course of arguments, it is submitted by the counsel for the applicant that the application was sought to be filed by the applicant on 19.12.2014 at about 5.00 pm and if the application under Order 9 Rule 13 CPC is considered, then it is clear that according to the applicant the power of attorney holder had already reached Guna on 18.12.2014 and had stayed there over night so that the application can be filed on 19.12.2014 and it appears that for the entire day no application was filed and only after the court hours were over, the power of attorney holder of the applicant tried to file an application.

When a specific question was put to the counsel for the applicant as to why the applicant did not file the application during the court working hours, then it was submitted by the counsel for the applicant that in fact it was the mistake of his counsel and it is well established principle of law that the party must not suffer due to the mistake of the counsel.

The submission made by the counsel for the applicant cannot not be accepted. In order to take advantage of the proposition of law that the party must not suffer because of the mistake committed by his counsel, this Court is of the considered opinion that the party must take action against his counsel either by making a complaint before the bar council or by instituting a suit for compensation and only then it can seek indulgence from this Court. But the fact is that the applicant did not file the application under Order 9 Rule 7 CPC during the court working hours and wasted the entire day of 19.12.2014 and tried to file the application only after the court working hours were already over and under these circumstances, this Court is of the considered opinion that even if the contention made by the applicant that he had tried to file an application on 19.12.2014 is accepted, then it is clear that the trial Judge was well given her right to refuse to accept the application because the same was sought to be filed after the court hours were over. It is next contended by the counsel for the applicant that on the next day i.e. 20.12.2014 when the applicant went to the court for filing the application, then he was informed that the file has already been sent to the copying section.

When the applicant went to the copying section, then he was informed that he can obtain the certified copies of the documents after depositing the requisite fee and thereafter he came to know that the judgment has already been delivered on 20.12.2014. The manner in which the applicant tried to put forth his case cannot be accepted. The judgment are always delivered in open court and only thereafter the files are sent to the copying section in case if any application is filed by any of the parties. When the applicant was already in the court premises on 20.12.2014, then it is beyond imagination that he was not aware of the passing of the judgment on 20.12.2014. Thus, it is clear that the applicant was trying to play the game of hide and seek with the court and by putting unfounded allegation against the court, has tried to got the ex-parte decree set aside. Even otherwise there is nothing on record to show that the applicant had ever made a complaint to the District Judge Guna on 19.12.2014 about the non-acceptance of the application by the trial Court.

Considering the conduct of the applicant in avoiding the court proceedings and considering the delaying tactics adopted by the applicant as well as considering the attempt of the applicant to malign the image of the Court, this court is of the considered opinion that the trial Court as well as the appellate court did not commit any mistake in rejecting the application filed by the applicant under Order 9 Rule 13 CPC.

Accordingly, the orders dated 27.11.2015 passed by First Additional Judge Guna to the Court of First Civil Judge, Class II Guna and the order dated 12.01.2019 passed by the First Additional District Judge Guna in M.A. No. 3/19 are hereby affirmed.

The revision fails and is hereby dismissed.