Citation: 2013(5)ABR790, 2013(6)ALLMR709,2014(4) MHLJ504
IN THE HIGH COURT OF BOMBAY
Decided On: 21.06.2013
Appellants: Shri. Purshottam Voiro Gaonkar
Vs.
Respondent: Shri. Ganaba B. Desai and Ors.
Vs.
Respondent: Shri. Ganaba B. Desai and Ors.
Hon'ble Judges/Coram:F.M. Reis , J.
1. Heard Mr. A. Borkar, learned counsel appearing for the petitioner. None for the respondents though served. Notice was issued to the respondents that the petition may be disposed of finally at the stage of admission. Rule. Heard forthwith.
2. The short point for consideration in the above petition is whether the learned Reference Court was justified to dismiss the application filed by the petitioner to set aside the award dated 07.06.1999 on the ground that though the petitioner did not appear at the time of the hearing of the reference proceedings it could not be considered to be an ex parte award and as such, the application was not maintainable.
3. Briefly the facts of the case as stated in the petition are that the reference was made under Section 30 of the Land Acquisition Act for adjudicating the claim of the petitioner as well as the respondents in connection with the acquisition made of the property surveyed under No. 78/1 of Chapoli Village. In the said proceedings, the matter was posted for hearing on 05.08.1998 when the Presiding Judge rescued from the matter for the reasons stated therein and the case was posted to 22.08.1998. It is stated by the petitioner that on the said date, the petitioner appeared and the matter was not taken up as necessary orders were not passed to transfer the matter to the learned Additional District Judge. The petitioner was under impression that the date of the hearing would be communicated. According to the petitioner, he learnt from another Advocate somewhere on 07.06.1999 that an award was already passed in the said Land Acquisition Proceedings. When the petitioner perused the records, he learnt that the matter was posted on 22.09.1998 when none of the parties appeared and adjourned to 22.10.1998. On the said date, nobody appeared for the parties and the matter was adjourned to 04.12.1998. On the said date, some of the parties appeared and the petitioner failed to appear as he was not informed nor intimated the fresh date of the hearing of the reference proceedings and as such the said proceedings were ex parte. As far as the petitioner is concerned, an application was filed by the petitioner on 14.06.1999 to recall the award passed in his absence. The said application came to be rejected on 25.08.2004 as the provisions on which the application was filed was not disclosed by the petitioner. Immediately, thereafter, an application was filed by the petitioner under Order 9, Rule 13 of the Civil Procedure Code along with application for condonation of delay to set aside the ex parte award. The respondents raised objection to the said application and ultimately by the impugned order dated 02.08.2006, the application for condonation of delay as well as the application to set aside the award came to be dismissed by disposing of the said applications. The learned Judge found that as no ex parte order was passed against the petitioner the question of setting aside the ex parte award does not arise. Being aggrieved by the said order, the petitioner has preferred the above petition.
4. I have heard the learned counsel appearing for the petitioner. The learned counsel reiterated the facts as referred to hereinabove and further submitted that once the award was passed in the absence of the petitioner, the learned Judge was not justified to pass the impugned order dismissing the said application as not maintainable. The learned counsel further submitted that even assuming the learned Judge has proceeded under Order 17, Rule 2of the Civil Procedure Code as the petitioner was not present when such award was passed, the application under Order 9, Rule 13 of Civil Procedure Code is maintainable. In support of his submissions, learned counsel has relied upon the judgment of the learned single Judge of this Court, reported inMANU/MH/0583/2002: 2003 (1) Mh LJ 191 : (2002 AIHC 4535) in the case of Chandrakant Babulal Panchal and another v. Ashwinibhai Mancharam Patel and another to advance his submissions that such application was maintainable. The learned counsel further submits that the very fact that the petitioner has taken measures to recall the ex parte award within 7 days from the date of such award itself discloses his due diligence in pursuing his remedy. The learned counsel as such submits that the impugned order deserves to be quashed and set aside. The respondents though served failed to remain present.
5. On perusal of the impugned order, the learned Judge has dismissed the application essentially on the ground that the application under Order 9, Rule13 of Civil Procedure Code was not maintainable. The records reveal that after the matter was transferred to the learned Additional District Judge, there was no intimation of the date to the petitioner. Apart from that, it cannot be disputed that the award passed by the learned Additional District Judge was in the absence of the petitioner nor the petitioner was given an opportunity to lead evidence therein nor cross-examine the witnesses of the respondents by the petitioner. In such circumstances, even assuming that the learned Reference Court has proceeded under Order 17, Rule 2 of CPC nevertheless, the application under Order 9, Rule 13 of CPC would be very much maintainable. The above findings find supports in the judgment of the learned single Judge of this Court in the case of Chandrakant Babulal Panchal (MANU/MH/0583/2002: 2002 AIHC 4535) (supra). It has been observed by this Court at paras 4, 5 and 6 thus:
4. Undisputedly, the facts are that the suit was disposed of in the absence of the appellants and without any written statement having been filed by the appellants even though the appellants were duly served by summons in the suit. Undisputedly, the appellants have disclosed various reasons for their failure to contest the proceedings and it is not necessary to consider the same in the appeal. Suffice it to say that the decree was passed in the absence of the appellants without any evidence being led by the appellants in the matter. There was neither pleadings on behalf of the appellants nor any material placed on record by the appellants in support of any defence of the appellant in relation to the case pleaded by the respondents-plaintiffs. In view of the decision of Apex Court in the matter of (Prakash Chander Manchanda and another v. Smt. Janki Manchanda), reported in MANU/SC/0011/1986 : AIR 1987 SC 42, and followed by this Court in unreported decision of this Court in the matter of (D. Venkatesh Kumar v. M/s. B.M. Sahani), in Civil Revision Application No. 1370 of 2000 decided on 11th July, 2002, it is clear that once the Court proceeds to pass decree in the suit in the absence of the defendant and in the absence of any evidence having been led by the defendant in the matter, such a decree has to be construed having been passed in exercise of power under Order XVII, Rule 2 of C.P.C. as an ex parte decree which can be subjected to an application under Order IX, Rule 13 of C.P.C.5. The attention of the learned single Judge in Shaikh Chand v. Annasaheb Trimbak Bobde's case (supra) was not drawn to the decision of the Apex Court in MANU/SC/0011/1986: AIR 1987 SC 42 and, therefore, the rule in the said Shaikh Chand's case cannot be considered to be a good and binding law upon this Court. In MANU/SC/0011/1986 : AIR 1987 SC 42 it was held that:It is clear that in case where a party is absent only course is mentioned in Order 17(3)(b) to proceed under Rule 2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9, Civil Procedure Code. It is, therefore, clear that after this amendment in Order 17, Rules 2 and 3, Civil Procedure Code there remains no doubt and therefore, there is no possibility of any controversy.6. Once it is clear that the Court below has rejected the application for condonation of delay solely on the ground that the application under Order IX, Rule 13 of C.P.C. was not maintainable and once it is evident that such an order cannot be sustained since the decree in question was an ex parte decree which can be subjected to the proceedings under Order IX, Rule 13 of C.P.C. the impugned order cannot be sustained. Apparently, the Court below has not even considered whether the appellant had made out sufficient cause for condonation of delay in filing the application or not, on that ground also the impugned order cannot be sustained and is liable to be set aside and the matter remanded to the Court below to consider the issue as to whether the appellants have made out sufficient cause for condonation of delay or not. It is made clear that this Court has not expressed any opinion on the aspect of the sufficiency of the cause for condonation of delay or as regards merits of the case in the application under Order IX, Rule 13 of C.P.C.
6. Perusal of the said observations, I find that the learned Judge was not justified to pass the impugned order on the ground that the application was not maintainable.
7. Considering the facts and circumstances I of the case as it is not in dispute that the petitioner took appropriate measure to recall the ex parte award within 7 days when such award was passed, I find that the learned Judge was not justified to refuse the application for condonation of delay. Sufficient cause was clearly culled out from the material on record to justify the delay in filing the application to set aside the ex parte order. As already noted herein above, immediately after the petitioner learnt about the disposal of the reference proceedings by an award in his absence, the steps were taken to recall the said award but however, as already stated herein above, the record do not suggest any negligence on the part of the petitioner in moving the Reference Court to set aside the award passed in absence of the petitioner herein. For the aforesaid reasons, I find that the learned Judge was not justified to pass the impugned order which deserves to be quashed and set aside. Rule is made absolute in terms of prayers (a), (b), (c) and (d) with no order as to costs.
No comments:
Post a Comment