Surinder Gaur and Others vs V.K. Sabharwal

N.K. Kapoor, J.—This revision petition is against the order of the Additional District Judge adjourning the appeal sine die till the respondent''s application under Order 9 Rule 13 CPC is decided.

Briefly put, the plaintiff filed a suit for separate possession by way of partition of the suit land as per his share. Suit was contested by some of the defendants whereas other defendants were proceeded ex-parte. Vide judgment and decree dated 17.1.1984 a preliminary decree in favour of the plaintiff was passed. One Ishar Dass, retired Naib Tehsildar was appointed as Local Commissioner in order to find out the possession of the respective parties and then settle the share-holders as per preliminary decree. Local Commissioner gave his report on 6.6.1991. Objections were raised and the court finally decided these objections and passed final decree on 11.3.1991. Aggrieved by the preliminary decree as well as the final decree passed by the Court, appeal was filed by the respondents and arguments in the appeal were partly heard and the case was adjourned for remaining arguments. It is during the pendency of the arguments that an application was filed praying that the appeal be adjourned sine die till an application under Order 9 Rule 13 CPC is decided by the Court. The Additional District Judge vide impugned order adjourned the appeal sine die till the application under Order 9 Rule 13 CPC is decided by the lower Court. It is this order of the Additional District Judge which is under challenge.

The learned counsel for the petitioner assailing the order of the Additional District Judge has argued that same is contrary to the decision of the apex Court in Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury, . According to the counsel, the Court had no jurisdiction to adjourn the appeal sine die till the decision of the application under Order 9 Rule 13 CPC. Since the arguments had already been addressed, it was incumbent upon the Court to decide the appeal and not be swayed by superfluous pleas raised by the respondents for staying the adjudication of the appeal sine die. Infact, the intention of the legislature is quiet clear i.e. either a person can file an appeal against the ex-parte order/judgement or file an application for setting aside the same in terms of Order 9 Rule 13 CPC and even if it be taken that the two remedies can be availed of simultaneously, it does not clothe the Court or the party with a right to keep the matter in abeyance till the other is decided. This almost amounts to the misuse of the process of the Court. On facts, the counsel urged that infact stay of the execution of the judgement and decree was granted by the Additional District Judge and with the order of adjourning the appeal sine die purpose to delay the execution of a valid judgement and decree has been achieved by the respondents in this indirect method. Not much evidence has been led by the respondents in their application under Order 9 Rule 13 CPC. The impugned order is thus un-sustainable under law and is liable to be set aside.

Learned Counsel for the respondents tried to justify the order of the Additional District Judge reiterating the same reasoning which weighed with the Additional District Judge.

Having heard the learned counsel for the parties, I am of the view that the impugned order deserves to be set aside. Admittedly, a preliminary decree was passed way back in the year 1984 and the final decree on 11.3.1991. The claim of the plaintiff was contested by some of the defendants. It is only on the passing of the final decree that the matter was taken before the Additional District Judge, who too had almost applied his mind and at this stage an application was filed to adjourn sine die the pending appeal. The Legislature while intending to provide two separate remedies i.e. by way of an appeal or by way of an application for setting aside ex-parte decree yet made it clear by adding explanation to Order 9 Rule 13 CPC that in case an appeal filed has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal an application for setting aside the ex-parte decree shall not lie. Thus, a choice had been given to aggrieved person to avail one or the other or to continue the both till one is decided. Since, in the instant case respondents have availed the remedy of an appeal which has even been heard by the learned Additional District Judge, to adjourn such an appeal on wholly flimsy ground that the same affect the merit of Order 9 Rule 13 CPC is per se without any justification. It is not the business of the Court to succumb to the pressure of the contending parties for no justifiable reason. The apex Court in Rani Choudhury''s case (Supra) dilated upon the effect of appeal, its disposal or withdrawal vis-a-vis Order 9 Rule 13 CPC. Accordingly, I set aside the order of the Additional District Judge dated 12.1.1995 and direct the court to decide the pending appeal without any further delay.

Parties are directed to appear before Court on 19.7.1995.