Ashiq Hussain Sofi Vs Intizamia Committee Jamia Masjid Abu Baker Sidiq

Through the medium of the present petition, the petitioner has challenged order dated 26^th of June, 2018, passed by the learned 4th Additional District Judge, Srinagar, (hereinafter referred as “the trial court ”) whereby the application of the petitioner–defendant for setting aside the ex parte proceedings has been dismissed.

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It appears that the respondent-plaintiff had filed a suit seeking a decree of Mandatory Injunction for vacation of suit shops and for recovery of land against the petitioner–defendant before the court of the learned 4th Additional District Judge, Srinagar. It further appears that the petitioner–defendant after putting in appearance in the suit through his counsel, stopped appearing in the case. Accordingly, he was proceeded ex-parte in terms of order dated 26^th of June, 2018, passed by the learned trial court.

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On 26th of April, 2019, the petitioner-defendant filed an application before the learned trial court for setting aside the ex-parte proceedings. It was contended in the application that on the date when the defendant was set ex-parte, his previous counsel was busy in some other court. The learned trial court, after inviting objections from the respondent-plaintiff, proceeded to dismiss the application of the petitioner-defendant by holding that he had failed to show good cause for his non-appearance on the date when he was set ex parte.

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The petitioner has thrown challenge to the aforesaid impugned order through the medium of present petition on the ground that the learned trial court has failed to exercise the jurisdiction vested in it under law, and that the impugned order has resulted in failure of justice. It is further contended that even otherwise the learned trial court could not have stopped the petitioner-defendant from participating in the proceedings merely because he had been proceeded ex parte. It is also the contention of the petitioner that he had properly explained the reasons for his non-appearance on the relevant date, but the learned trial court adopted a hyper-technical view of the matter and dismissed his application.

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I have heard learned counsel for the parties and perused record of the trial court.

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Order IX Rule 7 of the Code of Civil Procedure lays down the procedure when defendant appears on adjourned date of hearing and assigns good cause for his previous non-appearance. According to the said provision, when the court has adjourned the hearing of the suit in ex-parte, and the defendant appears on or before such hearing and assigns a good cause for his previous non-

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appearance, he can be upon such terms as the court directs, be heard in answer to the suit, as if he had appeared on the date fixed for his appearance.

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A plain reading of Order IX Rule 7 CPC makes it clear that an application for setting aside ex-parte proceedings can be made on any adjourned date of hearing of the suit in ex-parte. The expression “ at or before such hearing” does not necessarily mean that the application for setting aside ex-parte proceedings has to be made on or before the next date of hearing. So long as exparte decree is not passed, defendant is entitled to defend the suit if good cause is shown by him for his non-appearance on the previous dates of hearing. Thus, till the matter is finally heard by the court, defendant can always come at any time. 08. In the present case, the petitioner-defendant was proceeded ex-parte on 26^th of June, 2018, and he filed an application for setting aside the ex-parte proceedings on 6^th of March, 2019. A perusal of the minutes of proceedings of the learned trial court reveals that after the petitioner-defendant was set ex parte, the learned Presiding Officer was on leave on many subsequent dates. It further appears that nobody had appeared o behalf of the petitioner-defendant on other dates to which the suit was adjourned. Ultimately, on 16^th of December, 2018, when the respondent-plaintiff filed affidavits by way of evidence, a newly engaged counsel entered appearance on behalf of the petitioner-defendant and sought time to file his Vakalatnama as well as an application for setting aside the ex parte proceedings. The matter was accordingly adjourned to 25^th of January, 2019, on which date again, counsel for the petitioner-defendant sought time to file the requisite application. Thereafter, the said application came to be filed on the next date of hearing, i.e., on 6^th of March, 2019.

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In the application for setting aside the ex parte proceedings, the petitioner–defendant specifically averred that on 26^th of June, 2018, his previous counsel was busy in another court and, therefore, he could not attend the hearing. It is also discernable from the record that petitioner-defendant after being proceeded ex- parte, had engaged the services of another counsel but the learned Trial court despite noticing the facts that the petitioner had engaged the services of another counsel when his previous counsel had failed to appear before the court and had expressed his in-ability to continue, has proceeded to dismiss the application of the petitioner on the ground that he had failed to show good cause for his non-appearance on 26^th of June, 2018, on the ground that his previous counsel did not file an affidavit in support of the application.

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Once the previous counsel of the petitioner–defendant had abandoned the case of the defendant which had compelled him to engage the services of a new counsel, it would have been almost impossible for the defendant to obtain an affidavit from his former counsel in support of his application for setting aside ex-parte proceedings. It is natural that no counsel would swear an affidavit in support of assertions that would expose him to the charge of professional conduct. Therefore, insistence of the trial court on supporting affidavit of previous counsel of the defendant, was not warranted in the facts and circumstances of the case. In the absence of any material on record to rebut the assertions made by the defendant in his application, it was not open to the learned Trial court to discard the reasons assigned by him for his non-appearance on 26^th of June, 2018.

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It is a settled position of law that, in civil proceedings, the parties are not bound to appear in person before the court, and generally the parties enter appearance before court through their counsels. Therefore, non-appearance of the petitioner-defendant personally on 26th of June, 2018 cannot be read against him while considering his application for setting aside the ex parte proceedings.

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So far as the contention of learned counsel for the respondentplaintiff that the conduct of the petitioner-defendant was not satisfactory inasmuch as the application for setting aside the ex parte proceedings was filed after a lapse of eight months is concerned, in this regard, it is to be noted that the petitionerdefendant had to change his counsel, and on several dates of hearing, the learned Presiding Officer was on leave. Therefore, these circumstances, cannot form a basis for rejection of his application.

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In the present case, the petitioner-defendant has clearly succeeded in showing a ‘good cause’ for his non-appearance on the date on which the ex-parte proceedings were initiated against him. Therefore, the learned Trial court, was not justified in dismissing his application. An application for setting aside ex-parte proceedings has to be considered liberally and a hyertechnical view in such cases has to be avoided. The learned trial court has, in the present case, taken a very restricted view of the matter thereby causing failure of justice. The concern of the plaintiff that default of the defendant has resulted in the delay in disposal of the suit can be taken care of by awarding suitable costs in favour of the plaintiff.

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Accordingly, the petition is allowed and the impugned order dated 26^th of June, 2018 passed by the learned Trial court is set aside, subject to the

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payment of costs of Rs. 10,000/- which shall be payable by the petitionerdefendant to the respondent-plaintiff within a period of one month from today.

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The petition stands disposed of accordingly.

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(Sanjay Dhar) Judge

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SRINAGAR 21-11-2025 Showkat Khan

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Ashiq Hussain Sofi v. Intizamia Committee Jamia Masjid Abu Baker Sidiq

Case brief

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Ashiq Hussain Sofi v. Intizamia Committee Jamia Masjid Abu Baker Sidiq

Case brief

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