Partly allowed

Ram Das v. Smt. Shakuntala Devi and Anotaher

Allahabad HC20 Jan 2023A227/659/2023

Case brief

AI extract

What is this about?

This petition under Article 227 challenged a civil court's ex parte decree in a suit for cancellation of a sale deed. The High Court held that the decree was unsustainable as the trial court failed to appreciate the written statement and framed issues. Proceedings were remanded for fresh trial.

What did the court decide?

The impugned orders were set aside; the suit was remanded for fresh trial within a stipulated time frame.

Ram Das Vs Smt. Shakuntala Devi and Anotaher — Property and Title | Allahabad HC (2023)

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Court No. - 37

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Case :- MATTERS UNDER ARTICLE 227 No. - 659 of 2023

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Petitioner :- Ram Das Respondent :- Smt. Shakuntala Devi And Anotaher Counsel for Petitioner :- Arimardan Yadav,Jadu Nandan Yadav Counsel for Respondent :- Deepak Kumar Kulshrestha

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Hon'ble Ajit Kumar,J.

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Heard Sri Jadu Nandan Yadav, learned counsel for the petitioner and Sri Deepak Kumar Kulshrestha, learned counsel for the respondents.

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By means of this petition filed under Article 227 of the Constitution, petitioner has challenged the order dated 07.12.2020 passed by the Civil Judge (Junior Division), Shikohabad, Firozabad along with Misc. Application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 affirmed in Civil Revision No. 12 of 2020 vide order dated 10.11.2022 revisional record is also under challenge.

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The ground raised by the learned counsel for the petitioner is that the defendants/ respondents were continuously appearing in the suit and after the issues were framed in the said suit, the court was left with no other option but to decide the issue ex parte .

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Per contra it is argued by learned counsel for the respondents that in the absence of any communication by the counsel appearing for him in the said suit, he could not know exact date in the matter and that is why he did not appear.

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Having heard learned counsel for the respective parties and their arguments raised across the bar, I find that the suit was instituted by the plaintiff for cancellation of sale deed.

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It has been submitted by learned counsel for the petitioner that the written statement was filed and issues were also framed, however, on the ex parte judgment I do not find any consideration of those issues or any consideration of the written statement filed by the present defendants/ respondents. It is settled that once a court proceeds to decide a suit, it should deal with the issues that are involved in the suit and once the written statement has been filed, even though the defendant later on did not appear, while deciding the suit, the trial court is required to look into the defence case also and the issues so framed and the court will appreciate the evidence, may be ex parte .

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This above principle is to the effect that there must be a judicial

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application of mind by the court while deciding a suit.

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Supreme Court in the case of Rameshwar Dayal v. Banda (Dead) through his LRs & Anr, (1993) 1 SCC 531 and this Court later on in the case of Commissioner of Income Tax v. Surendra Singh Pahwa & Ors, AIR 1995 All 259 have held that while passing ex parte decree, the judgment must reflect true application of judicial mind so as to render it as a decree within the meaning of Section 2(2) of C.P.C.

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Applying the above principle to the facts of the present case, more specially when the suit was filed for cancellation of sale deed, the order passed by the trial judge decreeing the ex parte suit cannot be sustained in law and therefore, the trial court as well as court of revision were justified in permitting the recall of an ex parte decree.

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In the circumstances I do not find any good ground to grant indulgence in the matter. However, since the suit is of the year 1997, and it is now to be decided afresh and the pleadings have also already stood exchanged, it is hereby provided that the plaintiff in all circumstances shall conclude evidence within a maximum period of 60 days from the date of presentation of certified copy of this order and the defendants in the suit do cooperate in conclusion of evidence of the plaintiff. After the plaintiff's evidence is concluded, the defendants shall be granted 60 days' further time to conclude evidence and the plaintiff shall also cooperate in conclusion of their evidence within the time stipulated herein above. After the conclusion of evidence of both the parties to the suit the trial court will proceed to to decide the matter as expeditiously as possible preferably within a period of three months.

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It is clarified that in the event, this order could not be carried out within the time frame fixed for any technical reason, then for such delay in disposal of the aforesaid case, and pendency thereof itself shall ordinarily not be a ground sufficient enough to fasten the authority concerned with personal liability of contempt but the Court shall have to record reasons to be justified enough for granting adjournments and/ or deferring hearing of the matter by fixing dates.

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With the aforesaid observations and directions, this petition stands disposed of .

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Order Date :- 20.1.2023 IrfanUddin

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Digitally signed by :- IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad

Ram Das v. Smt. Shakuntala Devi and Anotaher

Case brief

What is this about?

What did the court decide?

Ram Das v. Smt. Shakuntala Devi and Anotaher

Case brief

What is this about?

What did the court decide?

What the court decided

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