The term ‘ex-parte’ means in absence of party. Order IX of
the Code provides consequences of non-appearance of the party.
Particularly, Rule 6 to Order IX prescribes a procedure in the
contingency when only plaintiff appears. In case when summons was duly served but the defendant does not appear then the Court may make an order that the suit be heard ex-parte in terms of Sub-clause (a) of Clause (1) to Rule 6 of Order IX of the Code. Basically, when defendant fails to appear and consequently no evidence could be recorded on his behalf and defendant’s case is closed, then the Court is bound to proceed under Rule 2 of Order XVII of the Code. The basic requirement is the absence of defendant when the suit was called on for hearing resulting into deciding case without defendant’s presence. {Para 35}
36. The provisions of Order IX Rule 13 of the Code have beenintroduced to remedied the situation where the defendant is absent meaning thereby the cause was decided in his absence. It is for the reason that, there is no contest due to absence of defendant at the time of hearing. Even if written statement is filed but the defendant remains absent throughout till adjudication then certainly the decision can be termed as an ‘ex-parte’, however a casual absence of defendant on any intermediate date would not suffice to treat the decision ex-parte. The defendant cannot take disadvantage of his isolated absence on insignificant date to state that the order was ex-parte. In order to assume the character of ex-parte, there must be absence of defendantat the time of hearing, meaning thereby in his absence the Court has proceeded in passing the decree. In short, defendant’s voluntary act of not cross examining the party and not advancing arguments, is not capable enough to term the order as ‘ex-parte’.
37. In sum and substance, the order passed by the First
Authority after considering the rival contentions was purely on merit. The respondent was throughout present in the proceeding as well as participated till fag end. The First Authority has taken into account written statement of the respondent as well as his evidence affidavit was on record. The First Authority has heard submissions of the claimants in presence of the respondent and as per record also heard submissions of respondent too. It is not a case that on the date of hearing, the respondent was absent to claim the benefit. The factual position in all petitions is one and the same. The Second Authority fell in serious error in holding that the orders were ex-parte decision amenable to set aside in terms of Order IX Rule 13 of the Code. In absence of the applicability of Order IX Rule 13 of the Code, the sameAuthority has no power to set aside its own order. Though submissionsare made on merits that the First Authority went wrong in assessingcompensation, however said challenge would squarely fall within thecompetence of the Appellate Forum and not to the same Authority. In short, the impugned orders passed in all petition are unsustainable in the eyes of law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO S . 1667 OF 20 22
Jyoti Mahesh Agrawal Vs Deputy Chief EngineerConstruction) Central Railway
CORAM : VINAY JOSHI, J.
Dated : 19.12.20222.
RULE. Rule is made returnable forthwith.
2. Heard finally by consent learned Counsel appearing for the
parties.
3. This batch of petition raises a common question for
consideration about the legality and validity of the impugned orders
passed under Order IX Rule 13 of the Code of Civil Procedure (the
Code) thereby treating orders to be ex-parte. For the sake of
convenience all petitions are taken together for disposal.
4. Petitioners are the owner of different pieces of agricultural
land which was proposed to be acquired for the Wardha to Nanded Rail
Project. The acquisition proceeding has commenced by publication of
preliminary notification under Section 11 of the Right to Fair
10
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (‘the Act of 2013’). It was followed by
publication of declaration and notices to interested persons, in terms of
Section 19 and 21 of the Act of 2013. After holding necessary inquiry
respondent no. 3 has passed different Awards in terms of Section 23 of
the Act of 2013 determining compensation. Being aggrieved and
dissatisfied by the quantum of compensation, the claimants (land
owners) made a Reference in terms of Section 64 of the Act of 2013 to
the Land Acquisition Rehabilitation and Resettlement Authority (First
Authority) established under Section 51 of the Act of 2013. In response
to the notices, respondent no. 1-Deputy Chief Engineer (Construction),
Central Railway (acquiring body) put its appearance and contested the
claims by filing written statement. The claimants have filed their
evidence on affidavit. Likewise, respondent no.1(Acquiring Body) also
filed evidence on affidavit in support of resistance. The First Authority
has enhanced the rate of compensation vide different reference orders.
5. The respondent no.1-Acquiring Body has filed applications
under Order IX Rule 13, read with Section 151 of the Code for setting
aside reference orders stating reference orders to be ex-parte. The
same Authority (for removal of confusion referred as Second Authority)
has set aside the orders by holding that there was no cross-examination
to the claimants’ evidence as well as evidence of the Acquiring Body
was not considered by the First Authority. In short, it has been held
that, the First Authority has not decided the claims on merit. Therefore,
by setting aside reference orders, restored the proceedings filed under
Section 64 of the Act of 2013 for fresh adjudication. Those similar
orders are subject matter of challenge.
6. Facts of all petition are similar with minor deviation. At the
inception, it is advantageous to note the admitted fact of the cases
which is rather a matter of record. In all petition, initially, Land
Acquisition Officer has determined the compensation against which
Reference was made under Section 64 of the Act of 2013. It is not in
dispute that in all proceedings, the Acquiring Body was served who in
turn put their appearance through Advocate Sawarkar (same advocate
in all proceedings) and filed written statements. It is also not in dispute
that the Acquiring Body has also filed evidence on affidavit in all
proceedings.
7. For the sake of convenience details of all petition have been
stated in tabular form as below :
Writ Petition
No. with
name
Appearance
of Railway
in Reference
u/s 64 of the
Act.
Date of
Written
Statement
by Railway
Date of
Evidence
by
Claimants
Date of
Evidence
by Railway
Date of
Arguments
Date of
Judgment
1667/2022
Jyoti Agrawal 30.10.2019 03.09.2020 28.10.2020 23.12.2020 09.02.2021 23.02.2021
1669/2022
Jyoti Agrawal 30.10.2019 03.09.2020 28.10.2020 23.12.2020 09.02.2021 23.02.2021
1860/2022
Pradip
Lakhani
30.11.2019 28.10.2020 28.10.2020 27.01.2021 09.02.2021 23.02.2021
1836/2022
Chandraprabha
Musale
04.11.2019 09.10.2020 09.11.2020 08.02.2021 02.03.2021 19.03.2021
1837/2022
Archana
Yende
04.11.2019 09.10.2020 09.11.2020 08.02.2021 02.03.2021 19.03.2021
1838/2022
Abhijeet
Bhumare
04.11.2019 09.10.2020 09.11.2020 08.02.2021 02.03.2021 19.03.2021
1839/2022
Chandraprabha
Musale
04.11.2019 09.10.2020 09.11.2020 08.02.2021 02.03.2021 19.03.2021
1840/2022
Hemant
Bhumare
04.11.2019 09.10.2020 09.12.2020 08.02.2021 02.03.2021 19.03.2021
1841/2022
Hemant
Bhumare
04.11.2019 09.10.2020 09.12.2020 08.02.2021 02.03.2021 19.03.2021
1842/2022
Sangita
Bhumare
04.11.2019 09.10.2020 09.12.2020 08.02.2021 02.03.2021 19.03.2021
2396/2022
Trimbakrao
Kadu
04.11.2019 09.10.2020 09.11.2020 08.02.2021 02.03.2021 19.03.2021
8. Since all matters are identical, for the sake of convenience I
took up the facts of Writ Petition No.1667 of 2022 pertaining to
13
claimant (land owner) Jyoti Mahesh Agrawal, whose land admeasuring
2H 42R has been acquired for Wardha to Nanded Rail
Project. Award has been passed on 10.07.2017 in terms of Section 23 of
the Act of 2013 determining compensation. Being aggrieved by the said
Award the claimant made a Reference under Section 64 of the Act of
2013 for enhancement of the compensation. In response to the notices,
the Deputy Chief Engineer (works), Railway has appeared through
Advocate Sawarkar on 30.10.2019 and filed Written Statement (page
71) on 03.09.2020. Claimant Jyoti Agrawal led evidence on affidavit
(page 80) on 28.10.2020. It was accompanied with several documents
supporting the claim for enhancement. In said Reference, evidence
affidavit has been filed on behalf of Railway on 23.12.2020 (page 93).
The authority has decided the claim on 23.02.2021 (page 107) by
enhancing the rate of compensation.
9. Since the controversy revolves around the question whether
the Reference order can be treated as an ex-parte, it necessitates to go
through the Roznama of the proceeding bearing case
No.631/AMT/YVT/2019. With the assistance of both side, the entire
Roznama has been carefully examined. The writ petitioners (claimants)
are seriously disputing that the Reference order is an ex-parte, whilst
Acquiring Body claims it to be ex-parte amenable to set aside in terms
14
of Order IX Rule 13 of the Code.
10. The Roznama (page 191) indicates that Advocate Sawarkar
for respondent/railway filed his appearance on 30.10.2019. It was
followed by filing of Written Statement by advocate Sawarkar for
Railway on 03.09.2020. The Roznama indicates that on 28.10.2020
claimant has filed evidence affidavit along with documents. Advocate
Sawarkar for Railway has received the copy of evidence affidavit and
the matter was posted for verification and cross-examination on
13.11.2020. On that day, the claimant has filed evidence close Pursis on
which the matter was adjourned for cross-examination to 20.11.2020.
On 20.11.2020 respondent nos. 1 and 2 were absent but the matter
was adjourned to 04.12.2020 at the request of respondent - Railway for
evidence.
11. On 23.12.2020, advocate Sawarkar for Railway has filed
evidence affidavit on which the matter has been adjourned to
15.01.2021 for final arguments. On that day claimant filed application
calling other side to admit documents, and claimants verification was
recorded. On adjourned date i.e. on 27.01.2021, advocate Sawarkar
was absent, hence it was again adjourned for arguments to 09.02.2021.
The Roznama dated 09.02.2021 discloses that in presence of advocate
15
Sawarkar (for the Railway) the arguments were advanced by the
claimant’s learned Counsel and the matter was posted for judgment to
23.02.2021. On the adjourned date, in presence of both advocates, the
order was passed enhancing the rate of compensation. Since the dates
of appearance and stages assumes significance, it has been extracted
from the Roznama.
12. The said Reference order has been set aside by the Second
Authority under Order IX Rule 13 of the Code treating it to be ex-parte
vide order dated 07.03.2022. The petitioner/ claimant has challenged
the said order dated 07.03.2022 passed under Order IX Rule 13 of the
Code. It is the petitioner’s contention that the order was purely passed
on merits therefore, provisions of Order IX Rule 13 of the Code would
not apply. It is submitted that the respondent /acquiring body has put
its appearance in the proceeding through Advocate Sawarkar, written
statement was filed and evidence affidavit was also filed. According to
the petitioner, the Authority has also heard the submissions of both
sides and after considering the entire material passed the order, which
cannot be termed as an ex-parte.
13. As against this, learned Deputy Solicitor General of India
(D.S.G.I.) by supporting the impugned order would submit that
16
Advocate Sawarkar was absent on the date of hearing and therefore,
order assumes a character of ex-parte hence the provisions of Order IX
Rule 13 of the Code would apply. Moreover, he would submit that in
terms of Section 60(3) of the Act of 2013, the Authority is not bound by
the Code but can regulate its own procedure while dealing with the
matter. It is also submitted that the Authority is under obligation to
follow the principles of natural justice as well as it has power to review
its own decision.
14. So far as the last contention about power to review is
concerned, there can be no dispute that Section 60(1)(f) of the Act of
2013, confers a power of review to the Authority. However, the said
submission is wholly untenable because, the respondent has specifically
approached to the Second Authority under Order IX Rule 13 of the
Code stating the order to be ex-parte. There is vast difference in
between the powers to set aside ex-parte order and the power of
review. Both provision works in different area. Firstly, the respondent
had not applied to the Second Authority seeking review of its own
order by invoking the provisions of Section 114 read with Order XLVII
of the Code. The Misc. Civil Application 118 of 2021 filed by the
respondent (railway) is purely under order IX Rule 13 read with
Section 151 of the Code. Apart from the provision quoted in the
17
application, there is no whisper in the entire application to infer that
the respondent was seeking review of the Reference order dated
23.02.2021. The grounds for review and grounds for setting aside exparte
order are quite distinct having no nexus with each other.
Application under Order IX Rule 13 of the Code is guided by the
grounds contained therein. In two exigencies the ex-parte order can be
set aside i.e. if the summons was not duly served, or the party was
prevented by any sufficient cause from appearing on the date of
hearing. Whilst in case of review, it would be tenable if there is
discovery of new material or there has been error apparent on the face
of the record. Undoubtedly, the respondent is not coming with a case of
discovery of new and important material or stating that there is error
apparent on the face of the record. Needless to say that, the error
apparent would be an error, which would strike at the face of the
record which does not require elaborate arguments. Moreover, learned
D.S.G.I. has not adhered to his submission that the respondent is
claiming to upset the Reference order under the powers of review.
15. It necessitates to see whether the Reference order can be
treated as an ex-parte to invoke the provisions of Order IX Rule 13 of
the Code. It has been argued by the respondent that since Advocate
Sawarkar was absent, the Reference order is ex-parte and thus, the
18
provisions of Order IX Rule 13 of the Code would apply. The principal
question falls for consideration is whether the Reference order can be
treated as an ex-parte. There was no quarrel in between the parties that
summons was duly served on the respondent. The respondent is
precisely laying hands on the second limb that he was prevented by
sufficient cause from appearing therefore, the impugned order assumes
the character of ex-parte order.
16. Learned D.S.G.I. would submit that even if the respondent
files a written statement, but remains absent, a decree can be treated as
an ex-parte. In this regard, he relied on the decision of this Court in
case of R.P. Bros vs. Fakhruddin Siraj Topiwala 2017(6)Mh.L.J. 845. In
said case, the defendant appeared and filed his written statement. The
matter was sent for mediation where the plaintiff agreed to withdraw
the suit. In these circumstances, the defendant did not appear assuming
that the matter was settled, however the plaintiff filed evidence
affidavit and due to non-appearance of the defendant, no-cross order
was passed. In absence of defendant, the plaintiff has argued the
matter and ultimately the judgment was passed. In said situation, this
Court was called upon to answer whether the application of the
defendant under Order IX Rule 13 of the Code is maintainable. In said
case the defendant has filed written statement, however did not appear
19
before the Court on the date of hearing or on adjourned dates. The
defendant also did not led evidence which was followed by hearing the
arguments of the plaintiff in absence of the defendant, followed by
judgment. In said situation, it has been observed that though the
defendant has filed his written statement, however he remained absent
throughout, therefore, the decree passed in his absence has to be
termed as ‘ex-parte’ exposing itself under Order IX Rule 13 of the Code.
17. The facts of the case in hand are quite distinct. This is not a
case where after filing of written statement, the defendant
(respondent) disappeared, but he was throughout present till the final
arguments advanced by the petitioner (claimants). Rather it reveals
from the record that the arguments of both sides have been heard by
the First Authority. Therefore, being different facts, the above decision
would not assist to the respondent in any manner.
18. Learned D.S.G.I. for the respondent relied on the decision
of the Supreme Court in case of G. Ratna Raj (dead) by Legal
representatives vs. Sri Muthukumarasamy Permanent Fund Limited and
anr. (2019) 11 SCC 301 to contend that, if the defendant was absent
after filing of written statement and the decree is passed, it can be
termed as an ex-parte decree. In fact, the said decision relates to the
20
applicability of explanation added to order XVII Rule 2 of the Code. In
said case the plaintiff’s evidence was recorded and case was closed.
When the case was fixed for recording of the defendant’s evidence, the
defendant remained absent. The defendant did not led evidence. In
that context it has been ruled that, since the defendant was absent and
did not led evidence, the Court could only proceed under Order XVII
Rule 3(b) read with Order XVII Rule 2 of the Code. In that situation it is
observed that explanation to Order XVII Rule 2 of the Code is not
applicable since there is no evidence on behalf of absentee party.
19. Learned D.S.G.I. further relied on the decision of the
Supreme Court in case of International Woollen Mills vs. Standard
Wool (U.K) Ltd. (2001) 5 SCC 265 to impress that what amounts to
judgment ‘on merits’. The said decision is not applicable since it relates
to the executability of foreign decree. In given facts it has been held
that the decree was not on merits and could not be enforced in India.
Being distinct facts, the said decision would not render any assistance
to resolve the controversy.
20. Besides that the learned D.S.G.I. relied on the decision of
this Court in case of Ayaaubkhan Noorkhan Pathan vs. State of
Maharashtra and ors 2013(4) Mh.L.J. 561 to contend about the
21
importance of cross-examination and also to state that affidavit cannot
be treated as an evidence. He was not clear on the second submission
because amended provisions of Order XVIII Rule 4 of the Code, permits
to lead evidence on affidavit. So far as the first contention regarding
importance of cross-examination, there can be no dispute, however the
party has to exercise their right to that extent.
21. For the applicability of explanation to Rule 2 of Order XVI
of the Code, the Court has to satisfy itself that, a substantial portion of
the evidence of any party has been already recorded, such a party has
failed to appear on any day, and on the adjourned date of hearing. In
fact, this explanation is in the nature of an exception to the general
power given under the Rule conferring discretion on the Court to act
under special circumstances permitting Court to adopt the modes
provided in Order IX of the Code if on facts, the substantial portion of
the evidence is led by the party and then remained absent, the Court
has discretion to deem its presence and proceed further. Thus, the
applicability of explanation depends upon the facts of the case. In other
words, if evidence of absentee party i.e. defendant is available, it is
open for the Court to proceed as a regular suit instead of taking
recourse of Order IX of the Code. However, the case in hand is more
worse as one is even not required to take recourse of explanation to
22
Order XVII Rule 2 of the Code, since the defendant was throughout
present till the date of judgment barring isolated occasion. Therefore, it
is clear that if on the fixed date one of the party remained absent and
for that party’s no evidence has been led, only then the Court has no
option but to proceed and dispose of the matter in accordance with
Order XVII Rule 2 of the Code in any one of the mode prescribed under
Order IX of the Code. The mandate of resorting the provisions of Order
IX of the Code would apply only if the party is absent on the date of
hearing.
22. In the light of said position, one needs to revert to the facts
of the case to find out whether the decree can be termed as an ex-parte.
Perusal of the Reference order (631/AMT/YVT/2019) indicates the
appearance of Advocate Sawarkar on behalf of Acquiring Body. The
order bears a reference that Acquiring Body has filed written statement
at Exhibit 7. Moreover, the First Authority has referred the contents of
written statement in the order. Though there is reference in the order
that respondent has not led evidence, however the respondent’s
evidence affidavit was very much on record. More particularly, there is
a reference (page 110) that the Authority has heard argument of both
sides and upon considering the facts, proceeded in passing the
Reference order.
23
23. Contextually, Roznama of the case needs reference. It
indicates that Advocate Sawarkar has filed written statement, received
the copies of claimant’s evidence as well as filed his evidence affidavit
on 23.12.2020. Not only that, on the date of argument advanced by
claimant (i.e. on 09.02.2021) respondents Counsel Sawarkar was very
much present. On that day, the matter was specifically adjourned to
23.02.2021 for judgment. Moreso, in presence of Advocate Sawarkar,
judgment was delivered. Close examination of Roznama discloses that
respondent’s Advocate Sawarkar was throughout present till the matter
was adjourned to 27.01.2021 for final arguments. Only on that day,
Advocate Sawarkar was absent, however it is not the case that on that
day the First Authority has heard the arguments of claimant and
delivered the judgment in absence of respondent’s Advocate Sawarkar.
24. The record indicates that on 27.01.2021 though the matter
was fixed for final arguments, however due to absence of respondent’s
Advocate Sawarkar, it was simply adjourned for arguments to
09.02.2021. On said date in presence of Advocate Sawarkar, claimant’s
learned Advocate has advanced arguments and the matter was placed
after two weeks i.e. on 23.02.2021 for judgment. Not only that, on the
date of judgment also Advocate Sawarkar was very much present.
Pertinent to note that Reference order bears reference that arguments
24
of both side were heard. In the scenario, how it can be said that the
judgment was delivered in absence of respondents to treat it ex-parte.
25. It is not the case of the respondent that they were either
prevented by the First Authority to cross-examine the claimant, or
precluded from advancing final arguments. Rather all steps were in
presence of respondent’s Advocate Sawarkar. If the respondent chooses
not to cross-examine the plaintiff’s witnesses one cannot compel him to
do so. The respondent may choose not to advance arguments if he
desirous so. Herein, the respondent though led evidence still opted for
not to cross-examine the claimant. The respondent never says that in
his absence the final arguments were advanced and judgment was
delivered.
26. The respondent appears to have capitalized the isolated
absence of Advocate Sawarkar only on a single day i.e. on 27.01.2022.
The entire thrust is on the absence of Advocate Sawarkar on the said
particular date. The respondent would have some space to claim the
decree to be ex-parte, if on 27.01.2021 itself in his absence, the matter
was disposed of. However, as noted above, on 27.01.2021, since the
respondent’s Advocate was absent, the First Authority has simply
adjourned the matter meaning thereby it was inconsequential date.
25
Rather the First Authority did nothing in absence of respondent’s
Advocate but once again placed the matter for final arguments on
09.02.2021. Pertinent to note that, in presence of Advocate Sawarkar,
learned Advocate for the claimant has advanced arguments. I may
reiterate that judgment bears a reference that final argument of both
side were heard. Even if it is assumed that respondents argument were
not heard, but it is not their case that the First Authority has declined
them from making submission. There is possibility of making common
submission by Advocate Sawarkar since all the matters are identical
and running parallel. In such a scenario, if the respondent chooses to
not to cross-examine the claimant to his detriment, he cannot take
advantage thereof.
27. It is not the respondent’s case that Roznama was incorrect,
but concededly on the date of argument, he was present as well as on
the date of judgment too. Pertinent to note that on 09.02.2021 in
presence of Advocate Sawarkar, learned Advocate of the Claimants has
advanced arguments, however the matter was not decided forthwith.
Particularly, it has been adjourned after two weeks for order/judgment.
Therefore, if Advocate Sawarkar has any grievance that he was not
heard, he could have approached to the First Authority, having
sufficient time. However, neither he requested the First Authority for
26
adjourning the case for his arguments nor it is a case of the respondent
that the First Authority has precluded him from making submissions. In
any eventuality, the respondent cannot take disadvantage of his
complete inaction by saying that the matter proceeded ex-parte. Rather
respondent’s absence on insignificant date (27.01.2021) is tried to be
projected, which has no meaning at all. It is evident that respondents’
Advocate Sawarkar has very much participated in the proceedings, but
chooses to remain ideal. He was present on the date of final arguments
and therefore, in any eventuality it can not be said that he was
prevented from appearing on the date of hearing to treat the order exparte.
28. It has been primely argued that the First Authority has not
given proper opportunity to the respondent. While setting aside the
reference order the Second Authority repeatedly quoted that there was
no cross-examination and the opportunity was denied to the
respondent. However, the close examination of entire record speaks
otherwise. Careful examination indicates that in Writ Petition
Nos.1667/2022, 1669/2022 and 1860/2022 the First Authority has
specifically mentioned in reference order that arguments of both side
were heard. Likewise, Roznama dated 02.03.2021 of remaining
petitions discloses that First Authority has specifically mentioned that
27
arguments of both side were heard. Thus the record indicates that the
First Authority has heard final submissions of the respondent and
therefore the contention in that regard, is untenable. Notably, it is not a
case of the respondent that either the First Authority has wrongly
quoted in reference order or Roznama about the arguments advanced
by the respondents. Therefore, certainly it cannot be said that no
opportunity was given to the respondent by the First Authority while
passing reference orders.
29. Looking the matter from another angle, the order bears a
reference of written statement as well as contentions raised therein.
The First Authority has considered those contentions while passing the
order. In the situation, it would not lie in the mouth of the respondent
that the First Authority has not given fair opportunity. Perusal of
impugned order passed under Order IX Rule 13 of the Code indicates
that (page 172) the Second Authority was conscious that the matter
was contested by filing written statement as well as respondent’s
Advocate Sawarkar has advanced arguments. The Second Authority
also took a note that the respondent (Acquiring Body ) has filed
evidence affidavit of one Mr. Siddharth Gupta – Deputy Chief Engineer
(Constructions). However, the Second Authority has observed (para 12,
page 173) that though the evidence affidavit was filed by both sides,
28
there is no cross-examination. The said observation does not convey as
to what the Second Authority wanted to say. The Authority or Court
cannot compel the party to cross-examine the rival. One may very well
choose to abstain from cross-examining the rival, but in that case he
can not claim that the order is ex-parte. If such view is adopted then
one may not cross examine and after judgment seeks to set aside the
order by stating it to be ex-parte. The provision of Order IX Rule 13 of
the Code is meant to remedied the situation where matter proceeded in
absence of defendant for his no fault. It would not apply to the cases
where defendant remains present but voluntarily forsake to participate.
30. The Second Authority while setting aside the order has
observed (para 18 page 175) that, the claimant has not demonstrated
or pointed out that the case was decided on merits. As a matter of fact,
the respondent was coming with an application under Order IX Rule 13
of the Code in the capacity of applicant. It is for the respondent/
applicant to establish that the order was ex-parte so as to uphold the
applicability of Order IX Rule 13 of the Code. However, the Second
Authority has put reverse burden on the claimants to establish that the
case was decided on merit. Thus, the very approach of the Second
Authority of casting a reverse burden on the claimant, is wholly
erroneous.
29
31. The Second Authority stated that the Advocate for the
Acquiring body has filed documents to show that he was tested positive
(COVID-19) in the Month of January 2021, therefore, unable to appear.
I have already detailed above that, only on 27.01.2021 respondents
Advocate was absent, which was insignificant date of the proceeding.
Pertinent to note that the Second Authority has not commented as to
on which date respondents Advocate was absent, and about the
consequence of his absence. Rather the Second Authority has neglected
the important aspect of the matter that on 09.02.2021 the final
arguments were heard in presence of respondent’s Advocate. Therefore,
isolated absence on insignificant date would not empower the
respondent to claim the applicability of Order IX Rule 13 of the Code
stating the order to be ex-parte. If, such view is adopted then most of
the suits have to be treated ex-parte, because in each case, on some or
other date, the defendant remains absent. One has to see as to what
was the consequence of defendant’s absence on particular date. The
provisions of Order XVII Rules 2 and 3 of the Code would apply if the
party remains absent on the date of hearing and not on insignificant
date. As a matter of fact, in case at hand on the date of hearing, the
respondent’s Counsel was very much present, therefore in any
eventuality the impugned order cannot be treated to be ex-parte.
30
32. The application under Order IX Rule 13 of the Code can be
made only in a cases where the ex-parte order has been passed against
the defendant. The grounds available for defendant are only two, i.e
(i) the summons was not duly served and (ii) he was prevented by
sufficient cause from appearing when the suit was called for hearing.
The second ground cannot be stretched to the extent of encompassing
any isolated intermittent absence of defendant that too on a date on
which the matter was simply adjourned. When the defendant appears,
files written statement, chooses not to cross-examine (claimant), files
his own evidence affidavit, choose not to advance arguments though
present, it cannot be said that the Court proceeded in deciding the
matter ex-parte.
33. The Reference order was passed by the First Authority
under Section 64 of the Act of 2013. Section 60 of the Act of 2013
specifies the powers of the Authority and a procedure to be followed
while passing the Reference order. Though in terms of Section 60(3) of
the Act of 2013, the Authority is not bound by the procedure laid down
in the Code however it does not mean that the Authority can follow a
course which is too novel to be logical or palatable. The Authority is
invested with a power to regulate its own procedure, however, it does
not mean that one can devise a procedure so as to take benefit of his
31
own wrong. The enabling provisions are to be used in the aid to
advance cause of justice, to remove procedural difficulties but not
beyond that. It is to be remembered that the provisions of the Act of
2013 are in addition to existing laws and not in derogation thereof. It
also conveys that to remedied the technical difficulties, the powers have
been invested to the Authority to lay down its own procedure and not
for any other reason.
34. The Second Authority has expressed that it shall be guided
by the principles of natural justice in terms of Section 60(3) of the Act
of 2013 while exercising jurisdiction under Section 64 of the Act of
2013. There can be no dispute about the said proposition, however, the
respondent is unable to demonstrate as to how the First Authority has
acted in defiance with the Rules of natural justice. Undoubtedly, one
must get a right of hearing but one cannot be compelled to exercise
said right. The entire proceeding shows that on each and every stage,
the respondent was present before the First Authority, partook in the
proceeding and voluntarily abstained from cross-examining the rival. In
civil cases one cannot be compelled to do those things. Obviously, if the
respondent himself chooses not to exercise his valuable right of crossexamination
and advance arguments, then it is not open for him to say
that the Authority has not followed the Rules of natural justice.
35. The term ‘ex-parte’ means in absence of party. Order IX of
the Code provides consequences of non-appearance of the party.
Particularly, Rule 6 to Order IX prescribes a procedure in the
contingency when only plaintiff appears. In case when summons was
duly served but the defendant does not appear then the Court may
make an order that the suit be heard ex-parte in terms of Sub-clause
(a) of Clause (1) to Rule 6 of Order IX of the Code. Basically, when
defendant fails to appear and consequently no evidence could be
recorded on his behalf and defendant’s case is closed, then the Court is
bound to proceed under Rule 2 of Order XVII of the Code. The basic
requirement is the absence of defendant when the suit was called on
for hearing resulting into deciding case without defendant’s presence.
36. The provisions of Order IX Rule 13 of the Code have been
introduced to remedied the situation where the defendant is absent
meaning thereby the cause was decided in his absence. It is for the
reason that, there is no contest due to absence of defendant at the time of hearing. Even if written statement is filed but the defendant remains absent throughout till adjudication then certainly the decision can be termed as an ‘ex-parte’, however a casual absence of defendant on any intermediate date would not suffice to treat the decision ex-parte. The defendant cannot take disadvantage of his isolated absence on insignificant date to state that the order was ex-parte. In order to assume the character of ex-parte, there must be absence of defendantat the time of hearing, meaning thereby in his absence the Court has proceeded in passing the decree. In short, defendant’s voluntary act of
not cross examining the party and not advancing arguments, is not
capable enough to term the order as ‘ex-parte’.
37. In sum and substance, the order passed by the First
Authority after considering the rival contentions was purely on merit.
The respondent was throughout present in the proceeding as well as
participated till fag end. The First Authority has taken into account
written statement of the respondent as well as his evidence affidavit
was on record. The First Authority has heard submissions of the
claimants in presence of the respondent and as per record also heard
submissions of respondent too. It is not a case that on the date of
hearing, the respondent was absent to claim the benefit. The factual
position in all petitions is one and the same. The Second Authority fell
in serious error in holding that the orders were ex-parte decision
amenable to set aside in terms of Order IX Rule 13 of the Code. In
absence of the applicability of Order IX Rule 13 of the Code, the same
Authority has no power to set aside its own order. Though submissions
are made on merits that the First Authority went wrong in assessing
compensation, however said challenge would squarely fall within the
competence of the Appellate Forum and not to the same Authority. In
short, the impugned orders passed in all petition are unsustainable in
the eyes of law.
38. In view of above, all petitions are allowed. Impugned
orders therein are hereby quashed and set aside. The related
applications under Order IX Rule 13 of the Code are not maintainable
and accordingly dismissed. No order as to costs.
(VINAY JOSHI, J.)
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