Allowed

Brij Bala v. Roop Singh Mehta

Himachal Pradesh HC28 May 2013CMPMO/211/2012

Case brief

AI extract

What is this about?

Writ petition allowed. The High Court quashed orders dismissing a petition to set aside an ex-parte dismissal due to default, holding the petitioner's unavoidable circumstances (fracture) were credible explanations for her absence. The application to restore the order is permitted.

What did the court decide?

Order dated 4.7.2000 set aside. Application under Order 9 Rule 9 read with Section 151 CPC allowed subject to costs of Rs. 2000/- payable to respondent No.1.

Brij Bala Vs Roop Singh Mehta — Civil Procedure and Limitation | Himachal Pradesh HC (2013)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 211 of 2012.

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Reserved on : 1.5.2013

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Date of decision: 28.5.2013

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Smt. Brij Bala …..Petitioner Vs.

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Sh. Roop Singh Mehta and another …..Respondents

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Coram

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The Hon’ble Mr. Justice Kuldip Singh, Judge.

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Whether approved for reporting?¹ No

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For the petitioner : Mr. G.D.Verma, Senior Advocate, with Mr. B.C.Verma, Advocate. For the respondents : None for respondent No.1. Mr. O.P. Negi, Advocate, for respondent No.2.

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Kuldip Singh, J

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This petition under Article 227 of the Constitution of India is at the instance of defendant, he has assailed the order dated 16.4.2012 passed by learned Additional District Judge, Fast Track Court, Shimla in Civil Misc. Appeal RBT No.57-S/14 of 2005/04 affirming order dated 4.8.2004 passed by learned Civil Judge (Junior Division), Court No.II, Shimla in CMA No. 100/6 of 2000 declining to set-aside order dated 4.7.2000 and restore the application under Order 9 Rule 13 CPC dismissed in default.

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Whether the reporters of the local papers may be allowed to see the Judgment?yes

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…2…

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2. The facts, in brief, are that respondent No.1 has filed a Civil Suit No. 364/1 of 1995/94 against the petitioner and respondent No.2 for permanent prohibitory injunction as well as mandatory injunction which was decreed exparte by learned Sub Judge, 1^st Class (2), Shimla on 18.1.1997. The petitioner moved an application under Order 9 Rule 13 read with Section 151CPC for setting-aside exparte order dated 15.5.1996 and exparte decree dated 18.1.1997 alongwith application under Section 5 of the Limitation Act, which was dismissed in default on 4.7.2000. The petitioner moved another application under Order 9 Rule 9 read with Section 151 CPC for setting aside order dated 4.7.2000.

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3. This application was contested by respondent No.1 by filing reply in which preliminary objection of maintainability was taken. On merits also, the stand of the petitioner was contested. The learned Civil Judge on 4.8.2004 dismissed the application. In appeal, the learned Additional District Judge on 16.4.2012 affirmed the order dated 4.8.2004.

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4. I have heard learned counsel for the parties and have also gone through the record. In the application under Order 9 Rule 9 read with Section 151 CPC, it has been stated that on 4.7.2000 the application under Order 9 Rule 13 read with Section 151 CPC was fixed but the counsel for the petitioner had a case before erstwhile Himachal Pradesh Administrative Tribunal, he had asked the petitioner to appear

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…3…

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in the Court but petitioner due to some unavoidable circumstance could not appear in the Court when the application was dismissed on 4.7.2000. This was discovered by the learned counsel for the petitioner on 15.8.2000.

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5. The application was contested by taking preliminary objection of maintainability. On merits, it was denied that petitioner herein was not in a position to appear in the Court due to unavoidable circumstance. In the file of CMA No. 28/10 of 1997 on 12.11.2001, the following issues were framed:

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Whether there are sufficient reasons to set aside the ex-parte order dated 4.7.2000 passed against the J.D./applicant? OPA

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Relief.

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The statement of AW-1 Smt. Brij Bala was recorded in CMA No. 28/10 of 1997 and the evidence of the applicant was closed vide order dated 20.9.2002. On 7.11.2002 the counsel for the respondent No.1/decree holder had made statement that respondent No.1/ decree holder would not lead any evidence and therefore, evidence was closed as per order in CMA No. 28/10 of 1997.

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6. AW-1 Brij Bala has stated that her counsel was Sh. Vaneet Gautam, Advocate. The case was fixed on 4.7.2000, she had fracture of leg and she was under treatment. She could not pursue the matter, her advocate could not appear as he was busy in some other court. She moved the application through another advocate. In cross-

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…4…

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examination it has been suggested to her that her advocate asked her to appear in application under Order 9 Rule 13 CPC. She denied that on 4.7.2000 she intentionally did not appear. This is the only evidence led by the petitioner and as noticed above respondent No.1/decree holder opted not to lead any evidence.

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7. The trial court dismissed the application, being CMA No. 100-6 of 2000 on 4.8.2004 on the ground that the counsel was not examined to prove that he was busy in the Tribunal nor any medical certificate has been produced that petitioner was sick or she sustained a fracture. The trial Court handled CMA No. 28/10 of 1997 and CMA No. 100-6 of 2000 very casually. CMA No. 28/10 of 1997 is execution petition for executing the decree dated 18.1.1997 and CMA No. 100-6 of 2000 is an application under Order 9 Rule 9 read with Section 151 CPC for setting aside order dated 4.7.2000. CMA No. 120-6 of 1998 is an application under Order 9 Rule 13 read with Section 151 CPC for setting aside decree dated 18.1.1997. The trial Court has framed issues on 12.11.2001 in the file of CMA No. 28/10 of 1997 and recorded the statement of AW-1 Brij Bala in the file of CMA No. 28/10 of 1997.

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8. The petitioner in substance has pleaded that on 4.7.2000 her counsel was busy in a case before the Tribunal and he had asked her to appear in the Court but due to certain circumstances, she could not appear in the Court on

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…5…

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4.7.2000. In cross-examination of AW-1, it has been suggested to her which she answered in affirmative that her advocate in the application under Order 9 Rule 13 read with Section 151 CPC had asked her to appear personally. This means that even the respondent No.1/ decree holder has not denied that the counsel for the petitioner had asked her to appear in the trial Court personally on 4.7.2000 when application under Order 9 Rule 13 read with Section 151 CPC was dismissed in default. The counsel for the petitioner was busy in the Tribunal or not was secondary, but what was relevant was that he asked the petitioner to appear personally on 4.7.2000 in the Court. The petitioner did not appear and consequently the application under Order 9 Rule 13 read with Section 151 CPC was dismissed in default. Therefore, what is to be seen is the explanation of petitioner whether she has properly explained her absence on 4.7.2000.

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9. The Courts below refused to accept the explanation of the absence of the petitioner on the ground that no medical certificate regarding sickness or fracture has been placed on record. The petitioner in her statement has stated that due to fracture she could not appear in the Court whereas in the application under Order 9 Rule 9 read with Section 151 CPC, she has given the reason unavoidable circumstance. The application is not happily worded but still it cannot be said that fracture is not an unavoidable circumstance. The statement of petitioner remained un-

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…6…

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rebutted. The petitioner was not to gain anything by getting her application for restoration dismissed in default. The two courts below have not properly appreciated the material on record in returning the finding that the petitioner has failed to make out a case for setting aside order dated 4.7.2000.

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10. In view of above, the petition is allowed, order dated 4.7.2000 is set-aside. The application under Order 9 Rule 9 read with Section 151 CPC is allowed subject to costs `2000/- which shall be paid by the petitioner to respondent No.1 in the Court below. The parties through their counsel are directed to appear in the Court below on 17.6.2013 . The record be sent back immediately so as to reach before the date fixed.

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May 28 , 2013 ( Kuldip Singh), ( GR) Judge

Brij Bala v. Roop Singh Mehta

Case brief

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Brij Bala v. Roop Singh Mehta

Case brief

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