In Vijay Kumar Madan and others v. R. N. Gupta
Technical Education Society and others, (2002 (5) SCC 30)
interpreting the provisions in Order IX Rule 7 of the CPC, the Apex Court
held that terms imposed by the court on the defendant assigning good
cause for previous non-appearance should not be too onerous or vague
nor should they have the effect of prejudging the controversy involved
and automatically decreeing the suit even though the ex parte order is set
aside. The Apex Court held further that, costs should be so assessed as
would reasonably compensate the plaintiff for the loss of time and
inconvenience caused by relegating back the proceedings to an earlier
stage. Paragraphs 7 and 8 of the judgment in Vijay Kumar Madan's
case (supra) read thus:
"7. Power in the Court to impose costs and to put the
defendant-applicant on terms is spelled out from the
expression "Upon such terms as the Court directs as to
costs or otherwise". It is settled with the decision of this
Court in Arjun Singh vs. Mohinder Kumar and Ors., AIR
1964 SC 993, that on an adjourned hearing, in spite of
the Court having proceeded, ex parte earlier the
defendant is entitled to appear and participate in the
subsequent proceedings as of right. An application under
Rule 7 is required to be made only if the defendant wishes
the proceedings to be relegated back and re-open the
proceedings from the date wherefrom they became ex
parte so as to convert the ex parte hearings into bi-parte.
While exercising power of putting the defendant on terms
under Rule 7 the Court cannot pass an order which would
have the effect of placing the defendant in a situation
more worse off than what he would have been if he had
not applied under Rule 7. So also the conditions for taking
benefit of the order should not be such as would have the
effect of decreeing the suit itself. Similarly, the Court may
not in the garb of exercising power of placing upon terms
make an order which probably the Court may not have
made in the suit itself. As pointed out in the case of Arjun
Singh (supra), the purpose of Rule 7 in its essence is to
ensure the orderly conduct of the proceedings by
penalizing improper dilatoriness calculated merely to
prolong the litigation.
8. Costs should be so assessed as would reasonably
compensate the plaintiff for the loss of time and
inconvenience caused by relegating back the proceedings
to an earlier stage. The terms which the Court may direct
may take care of the time or mode of proceedings
required to be taken pursuant to the order under Rule 7.
For example, keeping in view the conduct of the
defendant-applicant, the Court may direct that though the
ex-parte proceedings are being set aside, the defendant
must file the written statement within an appointed time
or recall for cross-examination at his own cost and
expenses the witnesses examined in his absence or that
the defendant shall be allowed not more than one
opportunity of adducing his evidence and so on. How the
terms are to be devised and made a part of the order
would depend on the facts and circumstances of a given
case. In short, the Court cannot exercise its power to put
the defendant/applicant on such terms as may have the
effect of pre-judging the controversy involved in the suit
and virtually decreeing the suit though ex-parte order has
been set aside or to put the parties on such terms as may
be too onerous. .......... ........"
16. On an application filed under Order IX Rule 13 of the
Code, the court has to find out whether the erring party has made
out sufficient cause for setting aside the ex parte decree. When no
negligence or inaction is imputable to the erring party and the
absence was not malafide or intentional, the discretion has to be
exercised in his favour, especially when the application is within the
statutory time limit. In appropriate cases, the plaintiff can be
compensated by adequate costs for the loss of time and the
inconvenience caused to him. But any such condition shall not be
too onerous.
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
MR.JUSTICE P.N.RAVINDRAN
&
MR. JUSTICE ANIL K.NARENDRAN
20TH DAY OF MARCH 2015
FAO.No. 187 of 2014 ()
M/S. PEEVES ENTERPRISES,
Vs
MUHAMMED ASHRAF
The appellants are the defendants in O.S.No.256 of 2008 on
the file of the Court of the Subordinate Judge of Kochi. The said suit
was filed by the respondent herein, initially seeking a decree for
specific performance of an agreement for sale dated 26.3.2007,
directing the appellants to execute a sale deed in favour of the
respondent in respect of the plaint schedule property, having an
extent of 53 cents, comprised in survey Nos.200/1 and 1511 of
Edakochi Village and to put the respondent in possession of the
same, with an alternate prayer for realisation of an amount of
1 Crore said to have been paid by the respondent to the appellants
towards advance sale consideration together with interest @ 18%
per annum and for a decree of permanent prohibitory injunction
restraining the appellants from alienating or encumbering the plaint
schedule property.
2. On receipt of summons, the appellants entered
appearance and filed a written statement denying the allegations in
the plaint and contending that, they had never agreed to sell the
plaint schedule property to the respondent and that the respondent
had never agreed to purchase the same. According to the
appellants, the agreement dated 26.3.2007 happened to be signed
as demanded by the respondent on the understanding that the
respondent will provide an amount of 1 Crore to the second
appellant for discharging his liability with the bank, but, the
respondent did not pay any such amount to the second appellant. It
was also contended that the respondent filed the suit in collusion
with the tenants of the building situate in the plaint schedule
property, against whom the second appellant had initiated eviction
proceedings as R.C.P.No.10 of 2009 before the Rent Control Court,
Kochi.
3. The respondent filed I.A.No.101 of 2011 seeking an
amendment of the plaint in O.S.No.256 of 2008 by deleting the
prayer for specific performance and to convert the suit into one for
realisation of the advance amount of 1 Crore with interest @ 18%
per annum. The said interlocutory application was allowed and the
plaint was amended accordingly.
4. A reading of the memorandum of appeal would show that
when the suit stood posted for payment of the balance court fee,
the respondent filed I.A.No.1065 of 2011 seeking extension of time
and the trial court granted extension upto 30.9.2011. On that day,
the respondent filed I.A.No.1136 of 2011 for further enlargement of
time for payment of the balance court fee and the same was also
allowed by the trial court with a direction to pay the same within
fifteen days. But, the respondent, instead of remitting the balance
court fee, filed O.P.(Indigent) No.10 of 2011 with a prayer to permit
him to continue the suit as an indigent person. The appellants filed
objection to the said petition and ultimately, the respondent
withdrew the same on 16.7.2013. Later, the respondent filed
I.A.No.6 of 2013 with a prayer to permit him to continue the suit as
an indigent person. The trial court by order dated 25.6.2013
allowed I.A.No.6 of 2013 and permitted the respondent to proceed
with the suit as an indigent person.
5. Thereafter, the suit stood posted to 16.7.2013 for taking
steps as a last chance. As there was no sitting on that day, the suit
was adjourned to 2.8.2013 and on that day, the suit was ordered to
be included in the list on 1.11.2013. On 1.11.2013, the suit was
posted to 7.11.2013 for trial. Since there was no representation for
the defendants, they were set ex parte on 7.11.2013 and a decree
was passed in favour of the respondent on 22.11.2013.
6. On 21.12.2013 the appellants filed I.A.No.1886 of 2013 under
Order IX Rule 13 of the Code of Civil Procedure, 1908 read with
section 151 of the Code seeking an order to set aside the ex parte
decree passed on 22.11.2013. The respondent opposed the said
petition by filing a counter affidavit. The trial court by order dated
28.2.2014 allowed the petition on condition that the appellants shall
deposit 25% of the decree amount within 30 days from the date of
order as a pre-condition to set aside the ex parte decree and
judgment. It was made clear in the said order that if the appellants
fail to deposit the amount within the period stipulated above,
I.A.No.1886 of 2013 will stand dismissed without any further orders.
7. Aggrieved by the order dated 28.2.2014 of the trial court
in I.A.No.1886 of 2013, in O.S.No.256 of 2008 to the extent of
imposing a condition that the appellants should deposit 25% of the
decree amount within 30 days from the date of order as a pre-
condition to set aside the ex parte decree and judgment, the
appellants are before this Court in this appeal.
8. We have heard the arguments of the learned counsel for
the appellants and also perused the records produced along with the
appeal.
9. The sole question that arises for consideration in this
appeal is as to whether the trial court was justified in directing the
appellants to deposit 25% of the decree amount as pre-condition for
setting aside the ex parte decree.
10. The suit, as we have already noticed, was originally filed
as one for specific performance of an agreement for sale dated
26.3.2007 alleged to have been executed by the appellants in favour
of the respondents in respect of the plaint schedule property, with
consequential reliefs including a decree for permanent prohibitory
injunction. After the filing of written statement by appellants, the
respondent filed I.A.No.101 of 2011 for amending the plaint in
O.S.No.256 of 2008 in order to convert the suit into one for
realisation of the advance amount together with interest @ 18% p.a.
The said application was allowed and the plaint was amended
accordingly. But when the suit was posted for payment of balance
court fee, the respondent filed I.A.No.1065 of 2011 seeking
extension of time for payment of the balance court fee, which was
followed by I.A.No.1136 of 2011 seeking further enlargement of
time. Even within the extended time granted by the trial court, the
respondent did not remit the balance court fee. Instead, he filed
O.P.(Indigent) No.10 of 2011, seeking permission to continue the
suit as an indigent person, which petition was withdrawn on
16.7.2013. Later, he filed I.A.No.6 of 2013 with a prayer to
continue the suit as an indigent person, which was allowed on
25.6.2013. Immediately thereafter, the suit was posted to
16.7.2013 for taking steps as last chance and later, it was ordered
to be included in the list on 1.11.2013. A reading of the order
passed by the trial court would show that the appellants/defendants
were absent on 1.11.2013 and 7.11.2013 and there was also no
representation on their behalf and in such circumstances, they were
set ex parte on 7.11.2013 and an ex parte decree was also passed in
favour of the respondent/plaintiff on 22.11.2013.
11. As noticed by the trial court in the impugned order, the
main contention taken by the appellants in the affidavit filed in
support of the petition to set aside ex parte decree was that the
clerk attached to the office of their counsel had mistakenly noted the
posting date as 1.12.2013 instead of 1.11.2013 and it was in such
circumstances that they could not appear before the court on either
of those days and there was also no representation on their behalf.
It was further stated in the affidavit that, their counsel came to
know about the disposal of the suit only when he made enquiries on
1.12.2013 as the case was not called on that day and on coming to
know about the ex parte decree, the application was filed under
Order IX Rule 13 of the Code of Civil Procedure.
12. Before the trial court, the prayer sought for in the
interlocutory application was strongly opposed by the
respondent/plaintiff by filing a counter affidavit and it was
contended that the appellants/defendants and their counsel were
fully aware of the listing of the case on 7.11.2013 and they
remained absent with an intention to delay the final disposal of the
case. The learned Sub Judge, after referring to the merits of the
contentions raised in the plaint as well as in the written statement
and also taking note of the fact that 1.12.2013 being a Sunday, the
averment in the affidavit accompanying the interlocutory application
that the counsel for the appellants was present on 1.12.2013 is
false, allowed the application on terms.
13. As we have already noticed, though the suit is of the
year 2008, the trial of the suit was delayed due to the filing of
various interlocutory applications by the respondent/plaintiff seeking
amendment of the plaint; for enlargement of time to remit the
balance court fee; for permission to sue as an indigent person; etc.
Ultimately, it was only on 25.6.2013, the respondent/plaintiff was
permitted to continue the suit as an indigent person. Therefore, we
are of the opinion that, the appellants/defendants alone cannot be
blamed for the delay in the disposal of the suit. We also notice that
the interlocutory application for setting aside the ex parte decree
was filed in time.
14. In G.P. Srivastava v. R.K. Raizada and others (2000
(3) SCC 54), the Apex Court held that the word "was prevented by
any sufficient cause from appearing" occurring in Order IX Rule 13 of
the Code of Civil Procedure, 1908 (hereinafter referred to as 'the
Code') must be liberally construed to enable the court to do
complete justice between the parties, particularly when no
negligence or inaction is imputable to the erring party. Sufficient
cause for the purpose of Order IX Rule 13 of the Code has to be
construed as an elastic expression for which no hard and fast
guidelines can be prescribed. The courts have wide discretion in
deciding the sufficient cause keeping in view the peculiar facts and
circumstances of each case. The Apex Court held further that where
defendant approaches the court immediately and within the
statutory time specified, the discretion is normally exercised in his
favour, provided the absence was not mala fide or intentional.
Para.7 of the judgment in G.P. Srivastava's case (supra) reads
thus:
"7. Under Order 9, Rule 13, C.P.C. an ex parte decree passed
against a defendant can be set aside upon satisfaction of
the Court that either the summons were not duly served
upon the defendant or he was prevented by any 'sufficient
cause' from appearing when the suit was called on for
hearing. Unless 'sufficient cause' is shown for non-
appearance of the defendant in the case on the date of
hearing, the Court has no power to set aside an ex parte
decree. The words "was prevented by any sufficient cause
from appearing" must be liberally construed to enable the
Court to do complete justice between the parties
particularly when no negligence or inaction is imputable to
erring party. Sufficient cause for the purpose of Order 9
Rule 13 has to be construed as elastic expression for
which no hard and fast guidelines can be prescribed. The
Courts have wide discretion in deciding the sufficient cause
keeping in view the peculiar facts and circumstances of
each case. The 'sufficient cause' for non-appearance refers
to the date on which the absence was made a ground for
proceeding ex-parte and cannot be stretched to rely upon
other circumstances anterior in time. If 'sufficient cause' is
made out for non-appearance of the defendant on the
date fixed for hearing when ex parte proceedings initiated
against him, he cannot be penalised for his previous
negligence which had been overlooked and thereby
condoned earlier. In a case where defendant approaches
the Court immediately and within the statutory time
specified, the discretion is normally exercised in his favour,
provided the absence was not mala fide or intentional. For
the absence of a party in the case the other side can be
compensated by adequate costs and the lis decided on
merits."
15. In Vijay Kumar Madan and others v. R. N. Gupta
Technical Education Society and others, (2002 (5) SCC 30)
interpreting the provisions in Order IX Rule 7 of the CPC, the Apex Court
held that terms imposed by the court on the defendant assigning good
cause for previous non-appearance should not be too onerous or vague
nor should they have the effect of prejudging the controversy involved
and automatically decreeing the suit even though the ex parte order is set
aside. The Apex Court held further that, costs should be so assessed as
would reasonably compensate the plaintiff for the loss of time and
inconvenience caused by relegating back the proceedings to an earlier
stage. Paragraphs 7 and 8 of the judgment in Vijay Kumar Madan's
case (supra) read thus:
"7. Power in the Court to impose costs and to put the
defendant-applicant on terms is spelled out from the
expression "Upon such terms as the Court directs as to
costs or otherwise". It is settled with the decision of this
Court in Arjun Singh vs. Mohinder Kumar and Ors., AIR
1964 SC 993, that on an adjourned hearing, in spite of
the Court having proceeded, ex parte earlier the
defendant is entitled to appear and participate in the
subsequent proceedings as of right. An application under
Rule 7 is required to be made only if the defendant wishes
the proceedings to be relegated back and re-open the
proceedings from the date wherefrom they became ex
parte so as to convert the ex parte hearings into bi-parte.
While exercising power of putting the defendant on terms
under Rule 7 the Court cannot pass an order which would
have the effect of placing the defendant in a situation
more worse off than what he would have been if he had
not applied under Rule 7. So also the conditions for taking
benefit of the order should not be such as would have the
effect of decreeing the suit itself. Similarly, the Court may
not in the garb of exercising power of placing upon terms
make an order which probably the Court may not have
made in the suit itself. As pointed out in the case of Arjun
Singh (supra), the purpose of Rule 7 in its essence is to
ensure the orderly conduct of the proceedings by
penalizing improper dilatoriness calculated merely to
prolong the litigation.
8. Costs should be so assessed as would reasonably
compensate the plaintiff for the loss of time and
inconvenience caused by relegating back the proceedings
to an earlier stage. The terms which the Court may direct
may take care of the time or mode of proceedings
required to be taken pursuant to the order under Rule 7.
For example, keeping in view the conduct of the
defendant-applicant, the Court may direct that though the
ex-parte proceedings are being set aside, the defendant
must file the written statement within an appointed time
or recall for cross-examination at his own cost and
expenses the witnesses examined in his absence or that
the defendant shall be allowed not more than one
opportunity of adducing his evidence and so on. How the
terms are to be devised and made a part of the order
would depend on the facts and circumstances of a given
case. In short, the Court cannot exercise its power to put
the defendant/applicant on such terms as may have the
effect of pre-judging the controversy involved in the suit
and virtually decreeing the suit though ex-parte order has
been set aside or to put the parties on such terms as may
be too onerous. .......... ........"
16. On an application filed under Order IX Rule 13 of the
Code, the court has to find out whether the erring party has made
out sufficient cause for setting aside the ex parte decree. When no
negligence or inaction is imputable to the erring party and the
absence was not malafide or intentional, the discretion has to be
exercised in his favour, especially when the application is within the
statutory time limit. In appropriate cases, the plaintiff can be
compensated by adequate costs for the loss of time and the
inconvenience caused to him. But any such condition shall not be
too onerous.
17. In the case on hand, the suit was posted to 16.7.2013 for
taking steps as a last chance and thereafter it was ordered to be
included in the list for the first time on 1.11.2013. On 1.11.2013
and also on the subsequent posting date, i.e., 7.11.2013, there was
no representation on behalf of the appellants/defendants and
therefore they were set ex parte on 7.11.2013 and an ex parte
decree was also passed on 22.11.2013. Immediately thereafter,
within the prescribed time limit, the appellants/defendants filed
I.A.No.1886 of 2013, under Order IX Rule 13 of the Code, to set
aside the ex parte decree passed in O.S.No.256 of 2008. The reason
stated in the affidavit accompanying the said interlocutory
application is the mistake committed by the clerk attached to the
office of the counsel for the appellants/defendants in correctly noting
down the posting date. The respondent/plaintiff contended that the
appellants/defendants and their counsel before the court below were
fully aware of the listing of the case to 7.11.2013 and that they
remained absent with an intention to delay the final disposal of the
case. But, we are unable to draw an inference from the pleadings on
record that the absence of the appellants/defendants on those days
was either malafide or intentional. There is also no material to
indicate that the attempt of the appellants/defendants was intended
to protract the suit indefinitely. Considering the facts and
circumstances of the case on hand, we find that the condition
imposed by the trial court that the appellants should pay 25% of the
decree amount as a pre-condition to set aside the ex parte decree
for an amount of 1 Crore with 6% interest from the date of suit till
realisation is too onerous and the trial court ought not to have
imposed such a condition for setting aside the ex parte decree and
judgment.
In the result, we allow this appeal and in modification of the
condition stipulated in the order dated 28.2.2014 in I.A.No.1886 of
2013 in O.S.No.256 of 2008 direct the appellants/defendants to
deposit the sum of 25,000/- within a period of two weeks from the
date of this judgment, instead of 25% of the decree amount, for
payment to the respondent/plaintiff. On the appellants/defendants
remitting the said amount within the time limit stipulated above, the
court below shall restore the suit to file and proceed with the trial.
Taking note of the fact that the suit is of the year 2008, we direct
the court below to try and dispose of the suit, as expeditiously as
possible and at any rate within a period of six months from the date
of production of a certified copy of this judgment.
P.N.RAVINDRAN,
JUDGE
ANIL K.NARENDRAN,
JUDGE
Print Page
Technical Education Society and others, (2002 (5) SCC 30)
interpreting the provisions in Order IX Rule 7 of the CPC, the Apex Court
held that terms imposed by the court on the defendant assigning good
cause for previous non-appearance should not be too onerous or vague
nor should they have the effect of prejudging the controversy involved
and automatically decreeing the suit even though the ex parte order is set
aside. The Apex Court held further that, costs should be so assessed as
would reasonably compensate the plaintiff for the loss of time and
inconvenience caused by relegating back the proceedings to an earlier
stage. Paragraphs 7 and 8 of the judgment in Vijay Kumar Madan's
case (supra) read thus:
"7. Power in the Court to impose costs and to put the
defendant-applicant on terms is spelled out from the
expression "Upon such terms as the Court directs as to
costs or otherwise". It is settled with the decision of this
Court in Arjun Singh vs. Mohinder Kumar and Ors., AIR
1964 SC 993, that on an adjourned hearing, in spite of
the Court having proceeded, ex parte earlier the
defendant is entitled to appear and participate in the
subsequent proceedings as of right. An application under
Rule 7 is required to be made only if the defendant wishes
the proceedings to be relegated back and re-open the
proceedings from the date wherefrom they became ex
parte so as to convert the ex parte hearings into bi-parte.
While exercising power of putting the defendant on terms
under Rule 7 the Court cannot pass an order which would
have the effect of placing the defendant in a situation
more worse off than what he would have been if he had
not applied under Rule 7. So also the conditions for taking
benefit of the order should not be such as would have the
effect of decreeing the suit itself. Similarly, the Court may
not in the garb of exercising power of placing upon terms
make an order which probably the Court may not have
made in the suit itself. As pointed out in the case of Arjun
Singh (supra), the purpose of Rule 7 in its essence is to
ensure the orderly conduct of the proceedings by
penalizing improper dilatoriness calculated merely to
prolong the litigation.
8. Costs should be so assessed as would reasonably
compensate the plaintiff for the loss of time and
inconvenience caused by relegating back the proceedings
to an earlier stage. The terms which the Court may direct
may take care of the time or mode of proceedings
required to be taken pursuant to the order under Rule 7.
For example, keeping in view the conduct of the
defendant-applicant, the Court may direct that though the
ex-parte proceedings are being set aside, the defendant
must file the written statement within an appointed time
or recall for cross-examination at his own cost and
expenses the witnesses examined in his absence or that
the defendant shall be allowed not more than one
opportunity of adducing his evidence and so on. How the
terms are to be devised and made a part of the order
would depend on the facts and circumstances of a given
case. In short, the Court cannot exercise its power to put
the defendant/applicant on such terms as may have the
effect of pre-judging the controversy involved in the suit
and virtually decreeing the suit though ex-parte order has
been set aside or to put the parties on such terms as may
be too onerous. .......... ........"
16. On an application filed under Order IX Rule 13 of the
Code, the court has to find out whether the erring party has made
out sufficient cause for setting aside the ex parte decree. When no
negligence or inaction is imputable to the erring party and the
absence was not malafide or intentional, the discretion has to be
exercised in his favour, especially when the application is within the
statutory time limit. In appropriate cases, the plaintiff can be
compensated by adequate costs for the loss of time and the
inconvenience caused to him. But any such condition shall not be
too onerous.
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
MR.JUSTICE P.N.RAVINDRAN
&
MR. JUSTICE ANIL K.NARENDRAN
20TH DAY OF MARCH 2015
FAO.No. 187 of 2014 ()
M/S. PEEVES ENTERPRISES,
Vs
MUHAMMED ASHRAF
The appellants are the defendants in O.S.No.256 of 2008 on
the file of the Court of the Subordinate Judge of Kochi. The said suit
was filed by the respondent herein, initially seeking a decree for
specific performance of an agreement for sale dated 26.3.2007,
directing the appellants to execute a sale deed in favour of the
respondent in respect of the plaint schedule property, having an
extent of 53 cents, comprised in survey Nos.200/1 and 1511 of
Edakochi Village and to put the respondent in possession of the
same, with an alternate prayer for realisation of an amount of
1 Crore said to have been paid by the respondent to the appellants
towards advance sale consideration together with interest @ 18%
per annum and for a decree of permanent prohibitory injunction
restraining the appellants from alienating or encumbering the plaint
schedule property.
2. On receipt of summons, the appellants entered
appearance and filed a written statement denying the allegations in
the plaint and contending that, they had never agreed to sell the
plaint schedule property to the respondent and that the respondent
had never agreed to purchase the same. According to the
appellants, the agreement dated 26.3.2007 happened to be signed
as demanded by the respondent on the understanding that the
respondent will provide an amount of 1 Crore to the second
appellant for discharging his liability with the bank, but, the
respondent did not pay any such amount to the second appellant. It
was also contended that the respondent filed the suit in collusion
with the tenants of the building situate in the plaint schedule
property, against whom the second appellant had initiated eviction
proceedings as R.C.P.No.10 of 2009 before the Rent Control Court,
Kochi.
3. The respondent filed I.A.No.101 of 2011 seeking an
amendment of the plaint in O.S.No.256 of 2008 by deleting the
prayer for specific performance and to convert the suit into one for
realisation of the advance amount of 1 Crore with interest @ 18%
per annum. The said interlocutory application was allowed and the
plaint was amended accordingly.
4. A reading of the memorandum of appeal would show that
when the suit stood posted for payment of the balance court fee,
the respondent filed I.A.No.1065 of 2011 seeking extension of time
and the trial court granted extension upto 30.9.2011. On that day,
the respondent filed I.A.No.1136 of 2011 for further enlargement of
time for payment of the balance court fee and the same was also
allowed by the trial court with a direction to pay the same within
fifteen days. But, the respondent, instead of remitting the balance
court fee, filed O.P.(Indigent) No.10 of 2011 with a prayer to permit
him to continue the suit as an indigent person. The appellants filed
objection to the said petition and ultimately, the respondent
withdrew the same on 16.7.2013. Later, the respondent filed
I.A.No.6 of 2013 with a prayer to permit him to continue the suit as
an indigent person. The trial court by order dated 25.6.2013
allowed I.A.No.6 of 2013 and permitted the respondent to proceed
with the suit as an indigent person.
5. Thereafter, the suit stood posted to 16.7.2013 for taking
steps as a last chance. As there was no sitting on that day, the suit
was adjourned to 2.8.2013 and on that day, the suit was ordered to
be included in the list on 1.11.2013. On 1.11.2013, the suit was
posted to 7.11.2013 for trial. Since there was no representation for
the defendants, they were set ex parte on 7.11.2013 and a decree
was passed in favour of the respondent on 22.11.2013.
6. On 21.12.2013 the appellants filed I.A.No.1886 of 2013 under
Order IX Rule 13 of the Code of Civil Procedure, 1908 read with
section 151 of the Code seeking an order to set aside the ex parte
decree passed on 22.11.2013. The respondent opposed the said
petition by filing a counter affidavit. The trial court by order dated
28.2.2014 allowed the petition on condition that the appellants shall
deposit 25% of the decree amount within 30 days from the date of
order as a pre-condition to set aside the ex parte decree and
judgment. It was made clear in the said order that if the appellants
fail to deposit the amount within the period stipulated above,
I.A.No.1886 of 2013 will stand dismissed without any further orders.
7. Aggrieved by the order dated 28.2.2014 of the trial court
in I.A.No.1886 of 2013, in O.S.No.256 of 2008 to the extent of
imposing a condition that the appellants should deposit 25% of the
decree amount within 30 days from the date of order as a pre-
condition to set aside the ex parte decree and judgment, the
appellants are before this Court in this appeal.
8. We have heard the arguments of the learned counsel for
the appellants and also perused the records produced along with the
appeal.
9. The sole question that arises for consideration in this
appeal is as to whether the trial court was justified in directing the
appellants to deposit 25% of the decree amount as pre-condition for
setting aside the ex parte decree.
10. The suit, as we have already noticed, was originally filed
as one for specific performance of an agreement for sale dated
26.3.2007 alleged to have been executed by the appellants in favour
of the respondents in respect of the plaint schedule property, with
consequential reliefs including a decree for permanent prohibitory
injunction. After the filing of written statement by appellants, the
respondent filed I.A.No.101 of 2011 for amending the plaint in
O.S.No.256 of 2008 in order to convert the suit into one for
realisation of the advance amount together with interest @ 18% p.a.
The said application was allowed and the plaint was amended
accordingly. But when the suit was posted for payment of balance
court fee, the respondent filed I.A.No.1065 of 2011 seeking
extension of time for payment of the balance court fee, which was
followed by I.A.No.1136 of 2011 seeking further enlargement of
time. Even within the extended time granted by the trial court, the
respondent did not remit the balance court fee. Instead, he filed
O.P.(Indigent) No.10 of 2011, seeking permission to continue the
suit as an indigent person, which petition was withdrawn on
16.7.2013. Later, he filed I.A.No.6 of 2013 with a prayer to
continue the suit as an indigent person, which was allowed on
25.6.2013. Immediately thereafter, the suit was posted to
16.7.2013 for taking steps as last chance and later, it was ordered
to be included in the list on 1.11.2013. A reading of the order
passed by the trial court would show that the appellants/defendants
were absent on 1.11.2013 and 7.11.2013 and there was also no
representation on their behalf and in such circumstances, they were
set ex parte on 7.11.2013 and an ex parte decree was also passed in
favour of the respondent/plaintiff on 22.11.2013.
11. As noticed by the trial court in the impugned order, the
main contention taken by the appellants in the affidavit filed in
support of the petition to set aside ex parte decree was that the
clerk attached to the office of their counsel had mistakenly noted the
posting date as 1.12.2013 instead of 1.11.2013 and it was in such
circumstances that they could not appear before the court on either
of those days and there was also no representation on their behalf.
It was further stated in the affidavit that, their counsel came to
know about the disposal of the suit only when he made enquiries on
1.12.2013 as the case was not called on that day and on coming to
know about the ex parte decree, the application was filed under
Order IX Rule 13 of the Code of Civil Procedure.
12. Before the trial court, the prayer sought for in the
interlocutory application was strongly opposed by the
respondent/plaintiff by filing a counter affidavit and it was
contended that the appellants/defendants and their counsel were
fully aware of the listing of the case on 7.11.2013 and they
remained absent with an intention to delay the final disposal of the
case. The learned Sub Judge, after referring to the merits of the
contentions raised in the plaint as well as in the written statement
and also taking note of the fact that 1.12.2013 being a Sunday, the
averment in the affidavit accompanying the interlocutory application
that the counsel for the appellants was present on 1.12.2013 is
false, allowed the application on terms.
13. As we have already noticed, though the suit is of the
year 2008, the trial of the suit was delayed due to the filing of
various interlocutory applications by the respondent/plaintiff seeking
amendment of the plaint; for enlargement of time to remit the
balance court fee; for permission to sue as an indigent person; etc.
Ultimately, it was only on 25.6.2013, the respondent/plaintiff was
permitted to continue the suit as an indigent person. Therefore, we
are of the opinion that, the appellants/defendants alone cannot be
blamed for the delay in the disposal of the suit. We also notice that
the interlocutory application for setting aside the ex parte decree
was filed in time.
14. In G.P. Srivastava v. R.K. Raizada and others (2000
(3) SCC 54), the Apex Court held that the word "was prevented by
any sufficient cause from appearing" occurring in Order IX Rule 13 of
the Code of Civil Procedure, 1908 (hereinafter referred to as 'the
Code') must be liberally construed to enable the court to do
complete justice between the parties, particularly when no
negligence or inaction is imputable to the erring party. Sufficient
cause for the purpose of Order IX Rule 13 of the Code has to be
construed as an elastic expression for which no hard and fast
guidelines can be prescribed. The courts have wide discretion in
deciding the sufficient cause keeping in view the peculiar facts and
circumstances of each case. The Apex Court held further that where
defendant approaches the court immediately and within the
statutory time specified, the discretion is normally exercised in his
favour, provided the absence was not mala fide or intentional.
Para.7 of the judgment in G.P. Srivastava's case (supra) reads
thus:
"7. Under Order 9, Rule 13, C.P.C. an ex parte decree passed
against a defendant can be set aside upon satisfaction of
the Court that either the summons were not duly served
upon the defendant or he was prevented by any 'sufficient
cause' from appearing when the suit was called on for
hearing. Unless 'sufficient cause' is shown for non-
appearance of the defendant in the case on the date of
hearing, the Court has no power to set aside an ex parte
decree. The words "was prevented by any sufficient cause
from appearing" must be liberally construed to enable the
Court to do complete justice between the parties
particularly when no negligence or inaction is imputable to
erring party. Sufficient cause for the purpose of Order 9
Rule 13 has to be construed as elastic expression for
which no hard and fast guidelines can be prescribed. The
Courts have wide discretion in deciding the sufficient cause
keeping in view the peculiar facts and circumstances of
each case. The 'sufficient cause' for non-appearance refers
to the date on which the absence was made a ground for
proceeding ex-parte and cannot be stretched to rely upon
other circumstances anterior in time. If 'sufficient cause' is
made out for non-appearance of the defendant on the
date fixed for hearing when ex parte proceedings initiated
against him, he cannot be penalised for his previous
negligence which had been overlooked and thereby
condoned earlier. In a case where defendant approaches
the Court immediately and within the statutory time
specified, the discretion is normally exercised in his favour,
provided the absence was not mala fide or intentional. For
the absence of a party in the case the other side can be
compensated by adequate costs and the lis decided on
merits."
15. In Vijay Kumar Madan and others v. R. N. Gupta
Technical Education Society and others, (2002 (5) SCC 30)
interpreting the provisions in Order IX Rule 7 of the CPC, the Apex Court
held that terms imposed by the court on the defendant assigning good
cause for previous non-appearance should not be too onerous or vague
nor should they have the effect of prejudging the controversy involved
and automatically decreeing the suit even though the ex parte order is set
aside. The Apex Court held further that, costs should be so assessed as
would reasonably compensate the plaintiff for the loss of time and
inconvenience caused by relegating back the proceedings to an earlier
stage. Paragraphs 7 and 8 of the judgment in Vijay Kumar Madan's
case (supra) read thus:
"7. Power in the Court to impose costs and to put the
defendant-applicant on terms is spelled out from the
expression "Upon such terms as the Court directs as to
costs or otherwise". It is settled with the decision of this
Court in Arjun Singh vs. Mohinder Kumar and Ors., AIR
1964 SC 993, that on an adjourned hearing, in spite of
the Court having proceeded, ex parte earlier the
defendant is entitled to appear and participate in the
subsequent proceedings as of right. An application under
Rule 7 is required to be made only if the defendant wishes
the proceedings to be relegated back and re-open the
proceedings from the date wherefrom they became ex
parte so as to convert the ex parte hearings into bi-parte.
While exercising power of putting the defendant on terms
under Rule 7 the Court cannot pass an order which would
have the effect of placing the defendant in a situation
more worse off than what he would have been if he had
not applied under Rule 7. So also the conditions for taking
benefit of the order should not be such as would have the
effect of decreeing the suit itself. Similarly, the Court may
not in the garb of exercising power of placing upon terms
make an order which probably the Court may not have
made in the suit itself. As pointed out in the case of Arjun
Singh (supra), the purpose of Rule 7 in its essence is to
ensure the orderly conduct of the proceedings by
penalizing improper dilatoriness calculated merely to
prolong the litigation.
8. Costs should be so assessed as would reasonably
compensate the plaintiff for the loss of time and
inconvenience caused by relegating back the proceedings
to an earlier stage. The terms which the Court may direct
may take care of the time or mode of proceedings
required to be taken pursuant to the order under Rule 7.
For example, keeping in view the conduct of the
defendant-applicant, the Court may direct that though the
ex-parte proceedings are being set aside, the defendant
must file the written statement within an appointed time
or recall for cross-examination at his own cost and
expenses the witnesses examined in his absence or that
the defendant shall be allowed not more than one
opportunity of adducing his evidence and so on. How the
terms are to be devised and made a part of the order
would depend on the facts and circumstances of a given
case. In short, the Court cannot exercise its power to put
the defendant/applicant on such terms as may have the
effect of pre-judging the controversy involved in the suit
and virtually decreeing the suit though ex-parte order has
been set aside or to put the parties on such terms as may
be too onerous. .......... ........"
16. On an application filed under Order IX Rule 13 of the
Code, the court has to find out whether the erring party has made
out sufficient cause for setting aside the ex parte decree. When no
negligence or inaction is imputable to the erring party and the
absence was not malafide or intentional, the discretion has to be
exercised in his favour, especially when the application is within the
statutory time limit. In appropriate cases, the plaintiff can be
compensated by adequate costs for the loss of time and the
inconvenience caused to him. But any such condition shall not be
too onerous.
17. In the case on hand, the suit was posted to 16.7.2013 for
taking steps as a last chance and thereafter it was ordered to be
included in the list for the first time on 1.11.2013. On 1.11.2013
and also on the subsequent posting date, i.e., 7.11.2013, there was
no representation on behalf of the appellants/defendants and
therefore they were set ex parte on 7.11.2013 and an ex parte
decree was also passed on 22.11.2013. Immediately thereafter,
within the prescribed time limit, the appellants/defendants filed
I.A.No.1886 of 2013, under Order IX Rule 13 of the Code, to set
aside the ex parte decree passed in O.S.No.256 of 2008. The reason
stated in the affidavit accompanying the said interlocutory
application is the mistake committed by the clerk attached to the
office of the counsel for the appellants/defendants in correctly noting
down the posting date. The respondent/plaintiff contended that the
appellants/defendants and their counsel before the court below were
fully aware of the listing of the case to 7.11.2013 and that they
remained absent with an intention to delay the final disposal of the
case. But, we are unable to draw an inference from the pleadings on
record that the absence of the appellants/defendants on those days
was either malafide or intentional. There is also no material to
indicate that the attempt of the appellants/defendants was intended
to protract the suit indefinitely. Considering the facts and
circumstances of the case on hand, we find that the condition
imposed by the trial court that the appellants should pay 25% of the
decree amount as a pre-condition to set aside the ex parte decree
for an amount of 1 Crore with 6% interest from the date of suit till
realisation is too onerous and the trial court ought not to have
imposed such a condition for setting aside the ex parte decree and
judgment.
In the result, we allow this appeal and in modification of the
condition stipulated in the order dated 28.2.2014 in I.A.No.1886 of
2013 in O.S.No.256 of 2008 direct the appellants/defendants to
deposit the sum of 25,000/- within a period of two weeks from the
date of this judgment, instead of 25% of the decree amount, for
payment to the respondent/plaintiff. On the appellants/defendants
remitting the said amount within the time limit stipulated above, the
court below shall restore the suit to file and proceed with the trial.
Taking note of the fact that the suit is of the year 2008, we direct
the court below to try and dispose of the suit, as expeditiously as
possible and at any rate within a period of six months from the date
of production of a certified copy of this judgment.
P.N.RAVINDRAN,
JUDGE
ANIL K.NARENDRAN,
JUDGE
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