Naveen Khanna Vs Nabashree Mudoi and Anr.

Heard Mr. D. Saraf, the Learned counsel appearing on behalf of the Petitioner. Mr. H. Das, the Learned counsel appears on behalf of the Respondent No. 1.

¶20

This is an application filed under Section 115 of the Code of Civil Procedure, 1908 (for short, “the Code”) challenging the judgment and order dated 13.03.2024 passed by the Learned Civil Judge (Senior Division) Kamrup at Amingaon (hereinafter referred to as, “the Learned First Appellate Court”) in Misc Appeal No. 07/2018 whereby the Misc Appeal No. 07/2018 was dismissed thereby confirming the order dated 21.08.2018 passed by the Learned Court of the Munsiff, Kamrup at Amingaon (hereinafter referred to as, “the Learned Trial Court”) in Misc (J) Case No. 88/2016.

¶21

The question arises in the instant proceedings, as to whether, this Court ought to exercise its revisional jurisdiction against the order dated 13.03.2024.

¶22

For ascertaining the said aspect of the matter, this Court finds it relevant to take note of the brief facts which led to the filing of the instant proceeding. The parties herein are referred to in the same status as they stood before the Learned Trial Court.

¶23

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¶24

From the materials on record, it is seen that the respondent No. 1 herein as plaintiff had instituted a suit seeking declaration of his right, title and interest in respect to a plot of land admeasuring 1 Bigha covered by Dag No. 278 of K.P. Patta No. 10 of Revenue Village Tiling Gaon, under Silasundarighopa Mouza in the District of Kamrup, Assam; for delivery of khas possession and for permanent injunction. The said suit was initially registered and numbered as Title Suit No. 408/2009 (old), but was subsequently re-registered as Title Suit No. 112/2014 (new).

¶25

In the said suit, the Petitioner herein who was the Defendant No. 1 filed his written statement and further took all necessary steps. Annexure-A series is the order-sheet of Title Suit No. 112/2014. From the said Order sheet, it is seen that on 16.07.2014, the suit was fixed for filing of examination-in-chief on affidavit of the Plaintiff Witnesses. The Plaintiff sought for time and the Learned Trial Court fixed the matter on 12.08.2014 for filing of examination-in-chief on affidavit of the Plaintiff Witnesses. On 12.08.2014, the Plaintiff instead of filing the examination-in-chief on affidavit of his witnesses, the Learned counsel appearing on behalf of the Plaintiff filed an application that he wanted to withdraw from the said suit on the ground that the Plaintiff was

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¶27

not maintaining any contact with him and further sought for time that he may be permitted to take steps by issuance of notice upon the Plaintiff. Therefore, though the suit was at the hearing stage but the Learned Trial Court fixed 11.09.2014 for Service Report so that the Plaintiff could be informed about the disengagement of his Counsel.

¶28

The above aspect of the matter therefore makes it very clear that the suit was not fixed for hearing on 11.09.2014. Be that as it may, a further perusal of Annexure –A Series would show that till 11.09.2014, the Learned counsel for the plaintiff did not even take steps to inform the Plaintiff about his disengagement. The Defendant No. 1 did not appear on 11.09.2014. The Learned Trial Court on a complete misconception of the settled principle of law decided to proceed ex-parte against the Defendant No. 1 herein and fixed 11.11.2014 for necessary Order. It is pertinent to observe that from a perusal of the order dated 11.09.2014 itself, that the counsel for the Plaintiff had taken steps upon the Plaintiff to inform him that the Counsel would not further like to continue representing the Plaintiff.

¶29

A perusal of the order dated 11.11.2014 of the Learned Trial Court would shows that the same counsel who was representing

¶30

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¶31

the plaintiff earlier, appeared before the Learned Trial Court and submitted that he may be permitted to continue with his representation of the Plaintiff as the Plaintiff had contacted him. The learned Trial Court thereupon fixed the matter on 28.11.2014 for filing of the examination-in-chief on affidavit of the plaintiff witnesses. It is relevant herein to observe that the appearance of the Defendant No. 1 was not essential on 11.11.2014 also as the suit was not fixed for hearing.

¶32

The proviso to Order XVII Rule 1(1) of the Code stipulates that there shall be no adjournments beyond three times that too for sufficient reasons at the stage of hearing of the Suit. However, Annexure –A Series would show that the suit was fixed on 28.11.2014, 17.01.2015, 05.02.2015 and 07.03.2015 for filling of the examination-in-chief of the Plaintiff Witnesses on affidavit but the plaintiff did not file the examination-in-chief on affidavit of the Plaintiff Witnesses. The learned Trial Court ought to have proceeded in view of the above, in terms with Order XVII Rule 3 of the Code but the Learned Trial Court fixed the suit again on 07.04.2015 for filing of the examination-in-chief of the Plaintiff witnesses on affidavit. In terms with the Code, the Defendant No. 1 had no role in the suit till the examination-in-chief of the plaintiff witnesses was filed

¶33

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¶34

It is pertinent to mention that on 07.04.2015, the date was fixed for filing of the examination-in-chief on affidavit of the plaintiff witnesses; the Defendant No. 1 duly appeared and submitted his Hazira through his counsel. The Learned Trial Court on a complete misconception of the settled law did not accept the same on the ground that the suit was proceeding ex-parte. On 07.04.2015 also no examination-in-chief of the Plaintiff witnesses on affidavit were filed and the Learned Trial Court again granted another opportunity to the Plaintiff to file the examination-inchief of the Plaintiff witnesses on affidavit on 11.05.2015.

¶35

The Order sheet i.e. Annexure – A Series would show that on 11.05.2015, the plaintiff filed the examination-in-chief on affidavit of two witnesses, i.e. PW 2 and PW 3 and the Court fixed 22.06.2015 for the cross-examination of PW 2 and PW 3 and any other evidence to be filed by the plaintiff.

¶36

The order dated 22.06.2015 shocks and surprises this Court. The Plaintiff sought for an adjournment requesting that the suit be fixed for cross-examination of PW 2 and PW 3 to another date. The Defendant No. 1 was represented by his counsel. As per provisions the Code and the settled position of law, the Learned Trial Court ought to have either granted an adjournment

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¶38

thereby fixing another date for cross-examination of the PW 2 and PW 3 as sought for by the plaintiff or ought to have rejected the plaintiff's prayer for adjournment and proceeded in terms with Order XVII Rule 3 of the Code. Surprisingly, the Learned Trial Court on the ground that the suit was proceeding ex-parte against the Defendant No. 1. fixed 22.07.2015 for ex-parte argument. This procedure so followed by the Learned Trial Court is unheard of in law.

¶39

On 22.07.2015, the Defendant No. 1 wanted to participate in the suit proceeding but the Learned Trial Court again did not permit as would be very apparent from the order dated 22.07.2015. The record further reveals that the Learned Trial Court fixed 29.09.2015 for judgment. However, on 29.09.2015, the judgment could not be delivered on the ground that some of the exhibits were not signed. In this process, the suit went on but no judgment was delivered until on 02.03.2016, the Learned Trial Court again fixed the matter for judgment. From the order sheet, it is therefore apparent that though the Defendant No. 1 wanted to participate in the suit proceedings but the Learned Trial Court did not permit the Defendant No. 1 to participate on a misconceived notion that the suit was proceeding ex-parte against the Defendant No. 1.

¶40

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¶41

The record reveals that on 18.04.2016, the judgment was delivered by the Learned Trial Court whereby the suit was decreed in favour of the plaintiff by declaring the plaintiff's right, title and interest over the suit land as well as for recovery of khas possession. In addition to that, the Defendant No. 1 was permanently restrained from entering into the suit land.

¶42

The Defendant No. 1 however was not informed about the aforesaid manner in which the suit was proceeding against him by the Counsel representing the Defendant No. 1. On 12.09.2016, the Defendant No. 1 came to learn that the Suit was decreed against the Defendant No. 1., when some official persons visited his property to take possession. Under such circumstances, the Defendant No. 1 filed an application under Order IX Rule 13 read with Section 151 of the Code for setting aside the ex-parte judgment and decree dated 18.04.2016. This application was registered and numbered as Misc (J) Case No. 88/2016. The Learned Trial Court vide the order dated 21.08.2018 rejected the application under Order IX Rule 13 of the Code on the ground that the reasons so assigned did not appear to be sufficient to condone the delay on the part of the Petitioner to file the application under Order IX Rule 13 of the Code after a period of 170 days.

¶43

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¶44

Being aggrieved, an Appeal was preferred which was registered and numbered as Misc Appeal No. 07/2018. The Learned First Appellate Court vide the order dated 13.03.2024, rejected the said appeal by confirming to the order dated 21.08.2018 and it is under such circumstances, the present proceedings have been filed.

¶45

This Court has heard the Learned counsels appearing on behalf of the parties and has also given an anxious consideration to the materials on record.

¶46

From the narration of the above facts, it would be seen that the manner in which the Learned Trial Court proceeded with the suit, thereby not permitting the Defendant No. 1 to participate in the suit proceedings and then to pass the decree in favour of the Plaintiff without even the PW 2 and PW 3 being present in the Court to confirm to the statements made in the examination-inchief by way of affidavit baffles this Court with shocks and dismay.

¶47

Before proceedings further, this Court finds it relevant to observe that as far back as 70 years ago, the law is settled as to what Order IX Rule 7 of the Code contemplates. The Judgment of the

¶48

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¶49

Supreme Court in the case of Sangram Singh vs Election Tribunal, Kotah & Anr[1] had clearly laid down the scope and ambit of Order IX Rule 7 of the Code and what is the effect and consequences of an ex-parte order. A subsequent Judgment of the Supreme Court in the case of Arjun Singh vs Mohindra Kumar[2] reiterates and explains the scope of Order IX Rule 7 of the Code and what an ex-parte order in terms with Order IX Rule 7 of the Code imply. The relevant part of Paragraph 16 of the judgment in the case of Arjun Singh (Supra) is reproduced herein below:

¶50

“ 16. The scope of a proceeding under 0. IX Rule 7 and its place in the scheme of the provisions of the Code relating to the trial of suits was the subject of consideration in Sangram Singh v. Election Tribunal . Dealing with the meaning of the words “The Court may proceed exparte” in O. IX. Rule 6(1)(a) Bose, J. speaking for the Court said:

¶51

“ When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex parte order. Of course the fact that it is proceeding exparte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an exparte decree or other exparte order which the court is authorised to make. All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties.”

¶52

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¶53

Dealing next with the scheme of the Code, the learned Judge pointed out that the manner in which the Court could thereafter proceed i.e., after Rule 6(1)(a) was passed would depend upon the purpose for which the suit stood adjourned, and proceeded:

¶54

“ If it is for final hearing, an ex parte decree can be passed, and if it is passed, then O. IX, Rule 13 comes into play and before the decree is set aside the Court is required to make an order to set it aside. Contrast this with Rule 7 which does not require the setting aside of what is commonly, though erroneously, known as ‘the exparte order, No order is contemplated by the Code and therefore no order to set aside, the order is contemplated either.” (Italics ours).

¶55

and referring to the effect of the rejection of application made under O. IX Rule 7, he added:

¶56

“ If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order 9 Rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in.”

¶57

That being the effect of the proceedings, the question next arises what is the nature of the order if it can be called an order or the nature of the adjudication which the Court makes under O. IX. Rule 7 ? In its essence it is directed to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. Besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as contrasted with O. IX,

¶58

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¶59

Rule 9 or O. IX. Rule 13, no Appeal is provided against action of the Court under O. IX. Rule 7 “refusing to setback the Clock”. It is, therefore, manifest that the Code proceeds upon the view not imparting any finality to the determination of any issues of fact on which the court's action under that provision is based. In this connection……….”

¶60

From the above exposition of law, it would be apparently clear that when the suit is fixed for appearance of the Defendant or the suit is fixed for hearing and the Defendant does not appear, the Court is pass an order to proceed ex-parte against the Defendant. The reason is that as per the settled procedure, the Court is required to proceed in the suit in presence of both the parties. However, Order IX Rule 6(1) of the Code confers power upon the Learned Trial Court to pass an order to proceed exparte against the Defendant, if the conditions as mentioned in Order IX Rule 6(1) are satisfied. The reason is explained by the Supreme Court in Sangram Singh (Supra) with the following words “ It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties” . However, if the Defendant appears on the adjourned date of hearing, the Trial Court cannot stop the Defendant from appearing in the Court and proceeding further with the suit. It is only when the Defendant wants to put the clock back to the date on which the order to proceed exparte against him was passed, then only the Defendant is

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¶62

required to seek setting aside of the ex-parte order by assigning good reason(s). In other words, if the Defendant wishes to put the clock back to the date on which the order to proceed exparte against the Defendant was passed, the Defendant is required to file an application showing good cause for his nonappearance on the date so fixed for hearing of the suit and not otherwise.

¶63

Further to that is also relevant to take note that Order IX Rule 7 of the Code specifically refers to hearing of the suit being adjourned. Therefore, in a case where the Defendant had duly appeared pursuant to receipt of the summons and filed the written statement, the Trial Court can pass an order to proceed ex-parte when the date is fixed for hearing of the suit and not otherwise. In that context, if this Court takes note of the orders dated 12.08.2014 and 11.09.201, it would be seen that 11.09.2014 was not fixed for hearing of the suit. Rather it was fixed for service report upon the plaintiff who was to be notified as the Learned counsel appearing on behalf of the plaintiff wanted to withdraw from the suit. The Learned Trial Court, however, on the ground that the Defendant No. 1 did not appear, proceed ex-parte against the Defendant No. 1. The order dated 11.09.2014 therefore on the face of it was uncalled for. This is

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¶65

the first mistake of the Learned Trial Court.

¶66

The second mistake of the Learned Trial Court is apparent that the Defendant No. 1 participated in the suit proceeding on 07.04.2015 which was the date fixed for filing of the examination-in-chief on affidavit of the plaintiff witnesses and the Learned Trial Court did not permit the Defendant to participate.

¶67

The record further reveal that on 11.05.2015, the Defendant No. 1 appeared before the Learned Trial Court and took copies of the examination-in-chief on affidavit filed by the plaintiff witness Nos. 2 and 3. The Learned Trial Court rightly fixed the suit for cross-examination of the plaintiff witness on 22.06.2015.

¶68

The third mistake is manifest, fundamental and goes to the root of the matter. On 22.06.2015, the plaintiff sought for an adjournment. The witnesses of the plaintiff did not appear. The Learned counsel for the Defendant No. 1 was duly present. In such eventuality, the Learned Trial Court ought to have either granted a further adjournment to the plaintiff, if otherwise, permissible in terms with Order XVII Rule 1(1) of the Code or

¶69

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¶70

ought to have proceeded under Order XVII Rule 3 of the Code. Most surprisingly, the Learned Trial Court fixed the suit for exparte judgment. The only conclusion that can be drawn from such an order of the Learned Trial Court is that the Learned Trial Court was not aware, how a civil proceeding is required to be conducted under the Code.

¶71

The fourth mistake is that the Defendant wanted to participate at the time of argument in the suit, but the Learned Trial Court did not permit and this aspect is apparent from the order dated 22.07.2015.

¶72

The records further reveal that the Learned Trial Court thereupon fixed the matter for judgment on 29.09.2015. The judgment was however delivered on 18.04.2016 i.e. after a period of more than 6 (six) months from the date fixed for judgment. The same is contrary to the provisions Order XX Rule 1 of the Code.

¶73

The records further reveal that on one hand the Learned Trial Court did not permit the Defendant to participate in the suit proceedings, but on the other hand rejected the application for setting aside the ex-parte judgment and decree filed under

¶74

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¶75

Order IX Rule 13 of the Code on the ground that there was some delay of 170 days. The Learned Trial Court vide the order dated 21.08.2018 observed that the Petitioner/the Defendant could not show a sufficient cause, but did not at all discuss that the Defendant No. 1 came to learn only on 12.09.2016 when certain persons visited the suit land wherein the Defendant/the Petitioner herein was in possession of.

¶76

The mistakes which were apparently committed by the Learned Trial Court were not taken into consideration by the Learned First Appellate Court, and as such it led to the passing of the impugned order dated 30.03.2024.

¶77

This Court further finds it relevant to observe that on account of the mistake committed by the Learned Trial Court in not permitting the Defendant No. 1/the Petitioner herein to participate in the suit proceedings is contrary to law. The manner in which the Learned Trial Court has proceeded with the suit goes completely against the Code and the settled principles of law. As the manner in which the suit had proceeded which led to the passing of the judgment and decree dated 18.04.2016, this Court is of the opinion that the impugned judgment and decree dated 18.04.2016 is required to be set aside on the

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¶79

ground that the Defendant No. 1 was prevented by sufficient cause (i.e prevented by the Learned Trial Court contrary to law) from appearing when the suit was called for hearing. At the cost of repetition, this Court observes that the Learned Trial Court unjustly and unreasonably did not permit the Defendant No. 1 to participate in the suit proceeding.

¶80

Accordingly, this Court is of the opinion that the Learned Trial Court as well as the Learned First Appellate Court failed to exercise its jurisdiction conferred upon it by law in rejecting the application under Order IX Rule 13 of the Code vide the order dated 21.08.2018 as well as in dismissing the appeal vide the impugned judgment and order dated 13.03.2024 passed in Misc Appeal No. 03/2018.

¶81

Consequently, the order dated 21.08.2018 passed in Misc (J) Case No. 88/2016 and the judgment and order dated 13.03.2024 passed in Misc Appeal No. 07/2018 are set aside and quashed.

¶82

This Court allows the application filed under Order IX Rule 13 of the Code by the Petitioner which was registered and numbered as Misc(J) Case No. 88/2016 and thereby set aside the judgment and decree dated 18.04.2016 passed in Title Suit No. 112/2014.

¶83

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¶84

As both the parties are duly represented, the parties are directed to appear before the Learned Trial Court i.e. the Court of the Learned Civil Judge (Junior Division), Kamrup at Amingaon on 07.04.2025. The suit now shall proceed from the stage of cross-examination of the Plaintiff witnesses. The Learned Trial Court shall upon appearance of the parties fix a date for cross-examination of the Plaintiff witnesses and proceed with the suit in accordance with law.

¶85

Taking into account the facts of the case and the mistake committed by the Learned Trial Court which in the opinion of this Court constituted sufficient cause, this Court is not inclined to impose any costs.

¶86

With the above observations and directions, the instant petition stands allowed. No Costs.

¶87

[1] AIR 1955 SC 425

¶88

[2] AIR 1964 SC 993

¶89

JUDGE

¶90

Comparing Assistant

Naveen Khanna v. Nabashree Mudoi and Anr.

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