Allowed

Surjeet Singh v. Bhura Singh

Rajasthan HC20 Nov 2023CW/3972/2019

Case brief

AI extract

What is this about?

HC Jodhpur allowed a writ petition setting aside an order dismissing an application under Order 9 Rule 7 CPC. The High Court held that the trial court's refusal to allow the petitioner, an elderly former prisoner, to adduce evidence was arbitrary and violated substantive justice, granting the petitioner opportunities to present his case.

What did the court decide?

Impugned order under Order 9 Rule 7 CPC set aside; petitioner allowed one opportunity to file WS and two opportunities to adduce evidence; subject to payment of costs.

Surjeet Singh Vs Bhura Singh — Property and Title | Rajasthan HC (2023)

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(1 of 6) [CW-3972/2019]

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[2023:RJ-JD:39776]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 3972/2019

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Surjeet Singh S/o Shri Hari Singh, through his legal representatives: 1/1:- Gurdeep Singh s/o Late Shri Surjeet Singh, aged about 53 years, R/o Chotian, District Sri Muktsar Sahib (Punjab).

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----Petitioner/Defendant

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Versus

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1. Bhura Singh S/o Shri Nand Singh, B/c Jat Sikh, R/o Amarpura Jatan, Tehsil Suratgarh, District Sri Ganganagar.

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1. Sarwan Singh S/o Sri Nand Singh, B/c Jat Sikh, R/o Amarpura Jatan, Tehsil Suratgarh, District Sri Ganganagar.

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----Respondents/Plaintiffs

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For Petitioner(s) : Mr. Hamir Singh Sidhu For Respondent(s) : Mr. Hemant Kumar Jain

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HON'BLE MR. JUSTICE ARUN MONGA

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Order

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20/11/2023

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Petition herein is for setting aside impugned order dated 13.02.2019 (Annex.P/5), passed by learned Additional Sessions Judge, Suratgarh, District Sri Ganganagar (59/2008) in Suit No.30/2018, whereby, an application filed by defendant, petitioner herein, under Order 9 Rule 7 of CPC, seeking recalling of ex parte proceedings initiated against him, was dismissed.

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Given the nature of order being passed, there is no necessity to issue notice to respondents, as no serious would be caused to them. Notice to respondents is thus dispensed with.

(2 of 6)

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[CW-3972/2019]

Succinct facts first, as pleaded in the instant writ petition. A civil suit (No.59/2008) has been filed by the respondents for specific performance of an agreement dated 13.02.2005 before the Additional Sessions Judge in Suratgarh, District Sri Ganganagar. The petitioner, who executed the agreement, was in Bathinda Jail in Punjab serving a life sentence imposed by the trial court. The petitioner allegedly refused to execute the sale deed. 3.1. Notices were issued to the petitioner in November 2008, but due to his incarceration, they were not served. The plaintiff informed the court of the petitioner's jail status in July 2009, and subsequent notices were sent to the jail address in November 2010 without attaching a copy of the plaint. Consequently, the petitioner remained unaware of the proceedings. Ex-parte proceedings were initiated against him on 19.01.2011.

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3.2. After the ex-parte proceedings concluded, the respondents filed an application under Section 35 of the Rajasthan Registration Act to compound the agreement. During the ex-parte proceedings, the plaintiffs examined five witnesses in their favor until April 19, 2017.

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3.3. In September 2018, the petitioner was told about the exparte proceedings. He moved an application under Order 9 Rule 7 of CPC to set aside the ex-parte proceeding order. The application highlighted facts such as the petitioner being in jail during notice service, lack of awareness of the case type, and the petitioner's age and health condition. The trial court rejected the application, citing the petitioner's failure to submit an affidavit supporting the application, despite an existing affidavit on record.

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(3 of 6)

3.4. Aggrieved against the order dated 13.02.2019 passed by learned trial court, the petitioner has preferred the instant petition.

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Learned counsel for the petitioner submits that the impugned order dated 13.02.2019 passed by learned trial Court is per se arbitrary so as to be violative of Principle of Civil Law. The impugned order is, therefore, against the factual and legal aspect of the present controversy and the same is highly arbitrary, perverse and erroneous.

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Learned counsel for the petitioner further submits that the application under Order 9 Rule 7 of CPC was rejected on the ground that the petitioner did not file an affidavit in support of his application. Learned counsel points out that the application (Annex.P/3) is supported by an affidavit. The order passed by learned trial Court is thus contrary to the record, therefore, the liable to be quashed.

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The counsel asserts that the trial court, in rejecting the application, wrongly observed that the petitioner was not suffering any illness after being released from jail, which prevented him from approaching the court. The petitioner, presently is 85 years old, was around 80 years old at the relevant time. The counsel emphasizes that the petitioner provided a sworn account of all relevant facts in the application. Additionally, the order sheets of the trial court indicated the petitioner's incarceration during the pertinent period, preventing him from securing legal representation. The counsel contends that the trial court failed to consider this crucial evidence when issuing the impugned order, rendering it illegal and warranting its quashing.

[2023:RJ-JD:39776]

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(4 of 6)

Furthermore, the counsel argues that at the time notices were served to the petitioner in jail, he did not receive a copy of the plaint, resulting in his lack of awareness about the nature of the case. Given the petitioner's current age of 85 and considering the circumstances, the counsel contends that, in the interest of justice, the petitioner should be granted an opportunity to contest the case on its merits. The counsel asserts that the trial court did not take into account these circumstances while delivering the impugned order. To ensure a fair and just resolution, the counsel urges this court to allow the petitioner to present his evidence, asserting that denial of such an opportunity would amount to arbitrary and one-sided proceedings against the petitioner. He emphasizes the petitioner's readiness to present evidence in the case, if granted opportunity.

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I have heard learned counsel for the petitioner and have gone through the case file. 10. It appears that learned trial Court got over swayed with the fact that granting of opportunity to the petitioner-plaintiff to adduce evidence would delay the trial. No doubt, granting of such opportunity would have delayed the trial, but given the nature of dispute, the evidence which the petitioner proposes to adduce would be rather relevant for the proper adjudication of the controversy pending before the Court below and would be a further assistance to the Court to arrive at just decision. That aside, having seen the contents of the petitioner which are duly supported with an affidavit, it does appear that even the delay which has occurred in adducing the evidence, is not entirely

(5 of 6)

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[CW-3972/2019]

attributable to the petitioner and was also caused due to other contributory factors.

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Trite law it is that procedure is a handmaid of justice and, ought not to be given precedence at the cost of subjugation of substantive justice. The valuable right of litigants to establish their cases by adducing evidence ought not to be taken away by the Court except in a case of their deliberate omission/failure to produce evidence, particularly when the other side can be compensated with costs. Prejudice would indeed be caused to petitioner herein, unless afforded an opportunity to adduce evidence.

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As regards, the trial court insisting that medical record has not been produced showing that the petitioner who was unwell, the same also appears to be rather an over pedantic approach. Given that the petitioner is an 85 years old senior citizen. It is common sense that at such an age, a person commonly suffers from age-related ailments. One does not really need to doubt the same by compelling a person to produce his personal medical records to show as to what specific ailment is he suffering from. Learned court below ought to have given some benefit of doubt to the petitioner on account of his age.

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In the over-all premise, the impugned order dated 13.02.2019 (Annex.P/5) is set aside and the writ petition is allowed subject to payment of cost of Rs.5,000/- to the plaintiff. Application of the petitioner filed under order 9 rule 7 of CPC is thus allowed.

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Consequently, I deem it appropriate to grant one opportunity to the petitioner to file his WS, if not already filed and thereafter,

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(6 of 6) [CW-3972/2019]

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[2023:RJ-JD:39776]

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two effective opportunities to adduce his evidence subject, of course, to discretion of Ld. Trial Court to further grant opportunity, in case it so desires depending upon exigencies of work before it.

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Disposed of accordingly.

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Pending application(s), if any, shall also stand disposed of.

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(ARUN MONGA), J

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61-mSingh/-

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Whether reportable - Yes/No

Surjeet Singh v. Bhura Singh

Case brief

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What did the court decide?

Surjeet Singh v. Bhura Singh

Case brief

What is this about?

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