Revision against order setting aside ex-parte judgment. Petitioner challenged the High Court of Judicature for Rajasthan at Jodhpur, which dismissed the revision petition and upheld the trial Court's decision to set aside the ex-parte decree, citing substantial justice.
Revision petition fails and is dismissed summarily.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. CIVIL REVISION PETITION No.236/2014 Ashok Kumar V/s. Narayan Lal
Date of Judgment
::
05.01.2015
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. Sanjay Nahar, for the petitioner.
Petitioner-plaintiff has filed this revision petition under Section 115 CPC assailing the order dated 21st July, 2014 passed by the Debt Recovery Court-cum-Civil Judge (Senior Division), Vallabh Nagar, District Udaipur, whereby the learned Court below has allowed the application of the respondent-defendant under Order 9 Rule 13 CPC. By the order impugned, the learned Court below has set aside the ex-parte judgment and decree dated 14th March, 2007 passed against the respondent-defendant.
Brief facts of the case are that petitioner laid an application under Section 6 of the Rajasthan Relief of Agricultural Indebtedness Act, 1957 against the respondent for recovery of a sum of Rs.2 lacs with interest and the total amount was quantified as Rs.3,40,000/-. After issuance of notice, respondent appeared on 06.03.2006, but thereafter
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no-one appeared on his behalf. Therefore, Court proceed ex-parte against him. Finally, Court passed ex-parte judgment and decree on 14th March, 2007.
For setting aside the ex-parte judgment and decree, respondent laid an application under Order 9 Rule 13 read with Section 151 CPC. In the application, it is, inter alia, averred by the respondent that on receipt of the notice of the Court, he has negotiated with the petitioner and paid the entire amount. It is also stated that after receiving the amount, the petitioner informed him that he will be withdrawing the suit and henceforth he is not required to appear in the Court. Citing the reason of his illiteracy and unawareness about the legal proceedings, the respondent also stated in the application that even after receiving the amount, the petitioner proceeded with the claim, whereas, he remained under the bona fide impression that the matter has already been settled, therefore, he need not appear before the learned Court below. In that background, the respondent made endeavour for setting aside the ex-parte judgment and decree. As the application was filed belatedly, a separate application under Section 5 of the Limitation Act for condonation of delay is also made.
Both the applications were contested by the petitioners and separate replies were filed to the applications. Learned Court below after hearing the rival
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parties, by the order impugned set aside the ex-parte judgment and decree subject to payment of cost of Rs.500/-.
Learned counsel for the petitioner, Mr. Sanjay Nahar, has argued that the conditions envisage under Order 9 Rule 13 were not satisfied for setting aside ex-parte judgment and decree, yet the learned Court below has granted indulgence to the respondent, while passing the impugned order which is not sustainable. Mr. Nahar further submits that when the notices were served on the respondent and he has appeared before the Court, there was no question of granting any indulgence to the respondent on his application under Order 9 Rule 13 CPC. Mr. Nahar has also submitted that the application was also submitted after inordinate delay of almost seven years and there is no plausible explanation, therefore, by condoning the delay and setting aside the ex-parte judgment and decree, learned Court below has committed serious error in exercise of its jurisdiction.
I have heard learned counsel for the petitioner and perused the impugned order.
Upon perusal of the impugned order, in my view, learned trial Court has not committed any illegality or material irregularity in exercise of its jurisdiction for setting aside the ex-parte judgment and decree.
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It is trite that, while considering the application for setting aside ex-parte judgment and decree, the learned trial Court can exercise its discretion by considering the grounds set out in the application for the same. From a bare perusal of the impugned order, it is amply clear that the learned Court below has examined all the pros and cons and more particularly the fact that respondent is a poor agriculturist and illiterate person and considering that aspect has granted indulgence to him by setting aside exparte judgment and decree. Therefore, by setting aside exparte judgment and decree, the learned Court below has neither committed jurisdictional error, nor it has acted in exercise of its jurisdiction illegally or with material irregularity warranting interference in the limited scope of judicial review under Section 115 CPC. By setting aside exparte decree, the learned Court below has exercised its jurisdiction for advancing substantial justice, and therefore, I am not persuaded to interfere with impugned order in the limited scope of judicial review in this revision petition.
Consequently, the revision petition fails and same is, accordingly, dismissed summarily.
(P.K. LOHRA) J.
a.asopa/-
3 issues framed by the court
Whether the High Court should interfere with the ex-parte judgment and decree set aside order under Section 115 CPC.
Whether the conditions under Order 9 Rule 13 CPC were satisfied for setting aside the ex-parte judgment.
Whether the condonation of delay in filing the application to set aside the ex-parte judgment was justified.
3 provisions across 2 enactments
Ashok Kumar
Narayan Lal
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
