M/S Shrishti Technologies Vs N. Balram

the learned Senior Civil Judge, Nalagarh, District Solan, H.P., on 14.02.2025, whereby the application filed by the present respondent/defendant under the provisions of Order 9, Rule 13 of Code of Civil Procedure read with Section 5 of the Limitation Act has been allowed.

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Brief facts of the case are that the present petitioner/plaintiff has filed a suit for recovery of Rs.11,87,025/against the present respondent/defendant. The said suit was

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1 Whether reporters of the local papers may be allowed to see the judgment?

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instituted before the learned trial Court on the ground that the plaintiff purchased one number ceiling fan rotor turning CNC SPM machine from the defendant through invoice No.064, dated 31.03.2016, for an amount of Rs.12,49,500/- and the same was delivered by the defendant to the plaintiff on 18.04.2016. That the plaintiff had already paid Rs.11,87,025/- to the defendant upto 07.04.2016 in advance and the remaining amount was payable to the defendant after getting a trial of smooth working of the said machine and the defendant was legally liable to get the said machine in smooth working. The plaintiff installed the aforesaid machine supplied by the defendant, but the aforesaid machine could not work since the day of its installation and the plaintiff was loosing its production and was incurring financial losses on day to day basis due to non working of aforesaid machine. Therefore, the plaintiff filed the suit for recovery of Rs.11,87,025/- against the defendant/present respondent.

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The defendant was served and on 24.07.2017, time was sought by the defendant for filing of the written statement. On the said date Mr. R.D. Thakur, Advocate, appeared on behalf of the defendant and power of attorney was filed by him on behalf of the

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defendant. Thereafter, the case was listed on different dates. The defendant/present respondent filed an application under the provisions of Order 7, Rule 11(d) of the CPC for the rejection of the plaint. Vide its order dated 18.09.2018, the learned trial Court dismissed the said application. It is matter of record that the said order was assailed before this Court and the findings as returned by the learned trial Court were afÏrmed by this Court.

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On 19.11.2018, the learned trial Court framed the issues

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in the matter and thereafter the case was fixed for leading of evidence by the parties. Till 14.11.2019, Mr. R.D. Thakur, Advocate vice Mr. V.V. Narshimha Rao, Advocate was appearing on behalf of the defendant. On 13.01.2020, Mr. Rajesh Chaudhary, Advocate filed memo of appearance on behalf of the defendant. Thereafter, on 05.08.2022, none appeared on behalf of the defendant, consequently, the defendant was proceeded against ex-parte. Thereafter, the learned trial Court on 03.08.2023, had passed an exparte decree in favour of the present petitioner/plaintiff against the respondent/defendant.

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The present respondent/defendant filed an application under Order 9, Rule 13 of the CPC read with Section 5 of the

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Limitation Act before the learned trial Court on 20.08.2024. It has been averred in the application that the applicant/respondent had engaged Shri R.D. Thakur, Advocate, and he filed his written statement in the proceedings. He was actively participating in the proceedings of the case. As and when his counsel Mr. R.K. Thakur called him and asked to appear before the Court, he was doing so. That subsequently, the applicant/defendant engaged Shri Rajesh Chaudhary, Advocate , by handing over him the papers of the case including power of attorney. On 13.01.2020, Shri Rajesh Chaudhary, Advocate, put his appearance on behalf of the defendant by filing power of attorney but did not file regular power of attorney on behalf of the defendant.

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As per defendant, Shri Rajesh Chaudhary, Advocate did not appear on 20.08.2020 and the learned trial Court passed the order for issuing notices to the defendant for the next date of hearing. The applicant did not receive any such notices, however, vide order dated 05.01.2022, the learned trial Court issued notice to the defendant through registered post and notice was also issued to the counsel for the next date i.e. 20.04.2022. The counsel for the applicant/defendant Shri Rajesh Chaudhary had put in appearance

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on the next date of hearing i.e. 20.04.2022 and again filed the memo

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of appearance on behalf of the defendant. Thereafter, the case adjourned to 05.08.2022 for PWs and also for filing of power of attorney. Shri Rajesh Chaudhary, Advocate, did not inform the defendant regarding the aforesaid proceedings having taken place, though the defendant had already handed over the regular power of attorney to him, who had assured that as and when the presence of the defendant will be required, he will inform the applicant/defendant well in time.

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On 05.08.2022, Shri Rajesh Chaudhary, Advocate, had failed to put an appearance on behalf of the defendant before Court and consequently, the defendant was proceeded against ex-parte. It has been averred in the application that the said counsel had assured that the applicant/defendant will be informed well in time as and when his presence is required in the case before the Court. On such assurances, the applicant/defendant kept waiting for the information from his ofÏce but he did not receive any such communication.

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The defendant received summons in the execution of the ex-parte decree from the Court of Senior Civil Judge, Secunderabad (Hyderabad) for dated 16.07.2024 and on the said date, the

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defendant came to know from the records of the execution that an

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ex-parte decree has been passed against him in above mentioned

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civil suit. It has further been averred that before that, the defendant was not knowing about the passing of ex-parte decree and he came to know about the same on 16.07.2024. Thereafter, prompt action was taken by the defendant by obtaining necessary papers and filed the present application under the provisions of Order 9, Rule 13 of the CPC read with Section 5 of the Limitation Act.

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The application was duly resisted and contested by the petitioner/plaintiff by filing reply. It was averred in the reply that the ex-parte decree which has been passed by the learned trial Court is legal, justifiable and sustainable. Since the defendant failed to appear before the learned trial Court, therefore, he has been rightly proceeded against ex-parte and the said order does not call for any interference.

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Learned trial Court vide its order dated 14.02.2025 allowed application filed by the plaintiff/applicant by imposing a costs of Rs.10,000/- against the defendant.

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Feeling dissatisfied, the petitioner/plaintiff has

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approached this Court challenging the impugned order as passed by the learned trial Court on dated 14.02.2025.

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It is contended by Mr. Rajat Awasthy, learned counsel for

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the petitioner/plaintiff that the impugned order is not sustainable in the eyes of law and is liable to be quashed and set aside. He submits that there are no sufÏcient grounds for setting aside the ex-parte decree and the delay in filing the application is also willful and intentional.

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On the other hand, Ms. Dhanvanti Devi, learned counsel for the respondent/defendant has defended the impugned order. She has submitted that the impugned order does not suffer from any infirmity and while invoking the provisions of Article 227 of the Constitution of India, this Court will not interfere in the impugned order.

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I have heard learned counsel for the parties and have also gone through the record carefully.

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Admittedly, the suit was filed by the present petitioner/plaintiff for recovery of an amount of Rs. 11,87,025/against the present respondent/defendant. The record reveals that

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defendant was duly served and he had engaged Shri R.D. Thakur, Advocate, to appear on his behalf before the learned trial Court. When the case was fixed for evidence of the parties, the defendant engaged Shri Rajesh Chaudhary, Advocate as counsel to represent him in the case. He had put in appearance for the first time on 13.01.2020 and filed his memo of appearance on behalf of the defendant. Thereafter, the case was listed on different dates and as per the case of the defendant, Shri Rajesh Chaudhary, Advocate, did not inform him about the proceedings pending before the learned trial Court and he never informed or asked him to appear before the Court. It is case of the defendant that learned counsel failed to communicate him about the proceedings and had the counsel informed him well in advance, he would certainly attend the proceedings well in time before the Court. In order to substantiate, its contention, the defendant placed reliance upon the decision of the Hon’ble Apex Court in G.P. Srivastava vs. R.K. Raizada and Others, (2000)3 SCC 54, the relevant paragraph thereof reads as under:-

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“7. Under Order 9 Rule 13 C.P.C. an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufÏcient cause'

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from appearing when the suit was called on for hearing. Unless 'sufÏcient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex-parte decree. The words "was prevented by any sufÏcient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. SufÏcient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufÏcient cause keeping in view the peculiar facts and circumstances of each case. The 'sufÏcient cause' for non appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufÏcient cause' is made out for non appearance of the defendant on the date fixed for hearing when ex-parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.”

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Hon’ble Apex Court in the aforesaid decision has held

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that sufÏcient cause for the purpose of Order 9, Rule 13 has to be

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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 each case. The words “sufÏcient cause” for non appearance refers to the date on which the absence was made a ground for proceeding exparte and cannot be stretched to rely upon other circumstances anterior in time. If “sufÏcient cause” is made out for non appearance of the defendant on the date fixed for hearing when exparte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier.

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In the present case also it is the case of the defendant/respondent that though he had engaged Shri Rajesh Chaudhary, Advocate, to defend his case but the said counsel had failed to inform him about the proceedings and he came to know about the proceedings on 16.07.2024 when he received summons in the execution proceedings from the Court of Senior Civil Judge, Secunderabad (Hyderabad). It is only then he came to know about the passing of an exparte decree against him.

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It is contended by the learned counsel for the

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defendant/respondent that for the inaction on the part of the counsel representing the defendant, he cannot be penalized. In the present case, the learned trail Court after appreciating the material as placed on record has rightly came to the conclusion that the defendant/respondent has been able to make out a case for setting aside the ex-parte decree and for condonation of delay in filing the said application. The application as filed by the defendant is exhaustive and the reasons as assigned are plausible and reasonable. Therefore, the learned Court below has not committed any infirmity and illegality in passing the impugned order.

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Hon’ble Apex Court in Garment Craft vs. Prakash Chand Goel (2022)4 SCC 181 has laid down the parameters for exercising the supervisory jurisdiction under Article 227 of the Constitution of India and has came to conclusion that High Court will not act as a Court of appeal while exercising the said jurisdiction. In the present case, the learned Court below has not committed any jurisdictional error.

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