Allowed

Chhertu Ram v. Savitri @ Uma

Chhattisgarh HC19 Sept 2024WP227/184/2020

Case brief

AI extract

What is this about?

High Court set aside an order dismissing a petitioner's application under Order 9 Rule 13 CPC to set aside an ex-parte decree. The Court held that the failure to properly attest the vakalatnama per Rule 9A of Chhattisgarh Civil Court Rules constituted sufficient cause.

What did the court decide?

Impugned order dismissed and set aside; ex-parte decree set aside; Civil Suit No.54A/12 restored to original number. Parties to appear on 21.10.2024 for merits.

Chhertu Ram Vs Savitri @ Uma — Property and Title | Chhattisgarh HC (2024)

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2024:CGHC:36970

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 184 of 2020

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1 - Chhertu Ram S/o Terchu Ram, Aged About 60 Years, Caste - Pahadi Korwa ( Scheduled Tribe ), R/o Village - Sonpur, Tahsil - Ambikapur, District - Surguja Chhattisgarh

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... Petitioners

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versus

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1 - Savitri @ Uma D/o Ramkes Kushwala, R/o Joda Pipal Nagar, Ambikapur, Police Station And Tahsil - Ambikapur, District - Surguja Chhattisgarh.

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2 - Shivshankar Kushwaha S/o Bhabbilal Kushwaha (Dead Deleted ) Through Lrs.:

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(a) Deepak Kushwaha S/o Late Shivshankar Kushwaha, Aged About 28 Years

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(b) Meena Kushwaha D/o Late Shivshankar Kushwaha, Aged About 32 Years (c) Soniya Kushwaha D/o Late Shivshankar Kushwaha

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2(a) to (c) are R/o Mohalla Police Line, Nagar Ambikapur, Police Station And Tahsil - Ambikapur, District - Surguja Chhattisgarh.

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Digitally signed by SHYNA AJAY Date: 2024.09.23 11:03:17 +0530

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3 - Sukhsai Gond S/o Banshgopal, Aged About 40 Years R/o Khairbar, Police Station And Tahsil - Ambikapur, District - Surguja Chhattisgarh

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4 - State Of Chhattisgarh, Through The Collector, Surguja Chhattisgarh.

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... Respondents

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(Cause Title downloaded from CIS Periphery)

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For Petitioner : Mr. Rahul K. Mishra, Advocate For Respondents 1 : Ms. Priyanka Mehta, Advocate to 3 Respondent/State Mr. Pramod Ramteke, Panel Lawyer

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SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Order On Board

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20/09/2024

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This petition has been filed under Article 227 of the Constitution of India assailing the legality and validity of the order dated 22.1.2020 passed by Seventh Additional District Judge, Ambikapur, District Sarguja, in Misc. Civil Appeal No.39/2017, whereby, an appeal preferred by the petitioner against the rejection of his application filed under Order 9 Rule 13 of the CPC in Misc. Civil suit No.114/2013 by the Fifth Civil Judge Class-II, Ambikapur, was dismissed.

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Brief facts of the case are that respondent No.1 has filed a civil suit for declaration of title and possession and to declare the order dated 6.4.2004 passed by the concerned SDO, order dated 9.9.2004 passed by the Collector, Sarguja and the order dated 10.1.2006 passed by the Revenue Board, Chhattisgarh Bilaspur as void. In the said Civil Suit, after filing of the written statement, the petitioner was proceeded

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ex-parte and a decree was passed in favour of the respondent/plaintiff. The petitioner has filed an application under Order 9 Rule 13 of the CPC to set-aside the ex-parte decree on the grounds that he had never engaged Shri Harsh Yadav as his Counsel and the said counsel acted in connivance with the plaintiff and also raised a ground that the suit is not maintainable but the said application preferred by the petitioner was dismissed on the grounds that he was properly served; he had filed the written statement; and also engaged a lawyer and further, he did not take any step to compare the thumb impression, afÏxed in the court records, to show that someone else has appeared in his place in the case. The learned Appellate Court has afÏrmed the said findings and rejected the appeal. Hence, this petition.

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Learned counsel for the petitioner would submit that the petitioner has never put any thumb impression on the Vakalatnama. Though the written statement has been filed on his behalf but he had never engaged any counsel nor received any notice in the civil suit. Lastly, learned counsel for the petitioner would submit that the matter may be remitted back with a direction to the concerned Court to decide the civil suit on merits.

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Per contra, learned counsel for the respondent/plaintiff would support the order impugned.

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Heard learned counsel for the parties and also perused the documents annexed with the petition with utmost circumspection.

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Rule 9A of the Chhattisgarh Civil Court Rules, 1961 clearly mandates that an advocate/pleader shall not accept a document of his

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appointment as such from a person who is unable to write his name, unless it is attested by a literate person. For the sake of brevity, the aforesaid rule is reproduced below :

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“9A. In exercise of the powers conferred by sub-rule (4) of rule 4 of Order III, First Schedule, to the Code of Civil Procedure, the High Court is pleased to direct that an advocate or pleader shall not accept a document of his appointment as such from a person who is unable to write his name, unless it is attested by a literate person in the following form:

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“I A. B. hereby attest the mark of C.D. who is known to me and who afÏxed this mark in may presence, declaring that he thereby appointed E.F. advocate/pleader, to act for him in the above named case.”

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Dated…………. Signature…………..

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If the person in unable to have the document so attested it may be accepted in Court in the presence of the presiding Judge who should endorse there on that the document was accepted in his presence.”

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When a query has been put to learned counsel for the parties in this regard, they would fairly admit that in the civil suit Mr. Harsh Yadav, Advocate, who has filed his power on behalf of the petitioner herein, has not complied with the aforesaid provision and further, there is no attestation of the witness in whose presence the Advocate was engaged. A certified copy of the Vakalatnama has also been shown

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by learned counsel for the petitioner before this Court during the course of hearing and the said document is not disputed by learned counsel appearing for the other side. The said documents is made a part of the record.

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In view of the above, it is explicit that a plea has been taken by the petitioner that he has never engaged/authorised any lawyer in the suit and further, there is a mandate under Rule 9A that whenever any lawyer is being engaged by an illiterate person, in such circumstances, the Vakalatnama has to be attested by a literate person. Even otherwise, the concerned trial Court did not verify the said fact and endorsed in the Vakalatnama that the same was accepted in their presence. For setting aside an ex-parte decree, if the petitioner is able to demonstrate that he was prevented by “sufÏcient cause” from appearing at the hearing of the suit, then, in such circumstances, the Court shall make an order to set-aside the decree. In catena of judgments, it has been established that the expression ‘sufÏcient cause’ must be liberally construed and a broad view must be taken so that a court may exercise ex debito justitiae. The said expression has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufÏcient cause keeping in view the peculiar facts and circumstances of the case.

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Considering the facts and circumstances of the present case and also considering that the Vakalatnama has not been properly attested in the instant case, this Court is of the view that the petitioner has presented ‘sufÏcient cause’ to set-aside the ex-parte decree, which

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was passed against the petitioner herein.

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10.Consequently, the impugned order is not sustainable and the same is liable to be and is hereby set-aside. Further, the impugned judgment dated 18.1.2013 passed in Civil Suit No.54A/12 passed by the First Additional Civil Judge Class-I, Ambikapur (Sarguja) is also set-aside and the same is restored to its original number. The parties shall appear before the concerned trial Court on 21.10.2024 and thereafter, the concerned Court shall proceed in the matter to decide the lis strictly on its own merits in accordance with law.

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11.With the aforesaid observations/directions, the Writ Petition is disposed of.

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Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Shyna

Chhertu Ram v. Savitri @ Uma

Case brief

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Chhertu Ram v. Savitri @ Uma

Case brief

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