The High Court dismissed an appeal against the dismissal of an application to set aside an ex parte decree under Order IX Rule 13 CPC. The court held that failure to obtain leave for work or college attendance did not constitute sufficient cause for non-appearance.
Civil miscellaneous appeal dismissed by the High Court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND HONOURABLE SRI JUSTICE K.S. APPA RAO CIVIL MISCELLANEOUS APPEAL No.141 OF 2012
JUDGMENT: (Per Hon’ble Sri Justice Ghulam Mohammed)
This Civil Miscellaneous Appeal is filed against the order and decree, dated 21-12-2011, passed in I.A. No.2775 of 2011 in O.S. No.21 of 2006 by the Principal District Judge, East Godavari at Rajahmundry, dismissing the application filed under Order – IX Rule 13 CPC, to set aside the ex parte decree, dated 19-10-2011, passed in O.S. No.21 of 2006.
2. The appellants are defendants and the respondent is plaintiff in the suit O.S.No.21 of 2006.
3. For the sake of convenience, in this appeal, the parties are referred to as they are arrayed in the suit before the Court below.
4. The plaintiff filed the suit against the sole defendant for the relief of specific performance of an agreement of sale. During the pendency of the suit, the sole defendant died and defendant Nos.2 to 4 were impleaded as her legal heirs. After their impleadment, summons were served directing them to appear before the Court on 29-09-2011 either in person or through an advocate. As the defendant Nos.2 to 4 did not appear before the Court on the said date, they were set ex parte and an ex parte decree was passed against them on 19-10-2011. Thereafter, the counsel appearing on behalf of defendants, filed the I.A.No.2775 of 2011 seeking to set aside the said ex parte decree on the ground that though the residential address of the defendants is at New Delhi, defendant Nos.2 and 3 are working at Allahabad and Gurgaon, respectively, and the defendant No.4 is a student studying at Delhi. Since defendant Nos.2 and 3 did not get leave and the 4th defendant had to attend the college, they could not attend the Court on that date. It is further stated that the vakalat was sent to the defendants on
17-10-2011 and after signing the same, they sent it back to the counsel, who received the vakalat on 21-10-2011 and in the meanwhile, on 19-10-2011 the ex parte decree was passed, and therefore, he prays to set aside the same.
5. The plaintiff filed counter to the said I.A. denying the material allegations made in the affidavit filed in support of the I.A., and contended that the defendants are residents of New Delhi, that after the death of the original defendant, he requested the counsel for the defendants to furnish the information about the legal heirs of the deceased defendant, but the counsel without furnishing the details, had filed a memo stating that it is the duty of the plaintiff to secure the particulars of the legal heirs of the deceased defendant, that subsequently, he secured the details of the legal heirs of the deceased defendant and thereafter summons were served on them. It is further contended that though the summons was served on them, defendant Nos.2 to 4 did not appear before the Court either personally or through an Advocate and the counsel is not competent to file the affidavit and hence, he prayed to dismiss the I.A.
6. After considering the matter at length, by order and decree dated 21-12-2011, the trial Court dismissed the I.A., on the ground that the petitioners have not shown sufficient cause, which prevented them from appearing before the Court on the dates of adjournment. Aggrieved by the said order and decree, defendant Nos.2 to 4 have preferred the present civil miscellaneous appeal.
7. Learned counsel for the defendants vehemently contended that the suit is filed for a valuable property, which is situated at Rajahmundry and that the trial Court ought to have allowed the application filed under Order – IX Rule – 13 CPC, so that the defendants would get an opportunity to contest the matter, that the trial Court has erred in not considering the reason for non-appearance of the appellants though the defendants had explained the reasons for
their non-appearance. In support of his contentions, the learned counsel relied upon the judgment of the Apex Court in G.P. Srivastava
v. R.K. Raizada and others[1] .
8. On the other hand, learned counsel appearing for plaintiff contended that though the summons were received, the defendants did not appear before the Court and no cause is shown by the defendants for their non-appearance on the date on which the ex parte decree was passed and the matter is being delayed for one reason or the other and, therefore, he prays to dismiss the appeal. In support of his contentions, he relied upon the judgment of the Apex Court in
Parimal v. Veena @ Bhart i[2] .
9. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
10. The record discloses that the ex parte decree was passed against the defendants on 19-10-2011. Thereafter, the present I.A. was filed by the counsel appearing for the defendants seeking to set aside the ex parte decree. The Court below dismissed the I.A. on 2112-2011 observing that the defendants have not shown the sufficient cause for their non-appearance before the Court.
11. Before considering the matter, it is apt to refer the relevant provision i.e., Order IX Rule 13 CPC, under which an ex parte decree can be set aside. The said provision reads as under:
“13. Setting aside decree ex parte against defendant:-- In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also;
Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.”
12. A perusal of the above provision would clearly disclose that an ex parte decree can be set aside, if sufficient cause is shown by the defendants.
13. In the judgment relied upon by the learned counsel for the defendants in G.P. Srivastava’s case (supra 1), the Apex Court observed as under:
“7. Under order 9 Rule 13 CPC 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 “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient 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 sufficient 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 the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient 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 “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence, which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide 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.
14. On the other hand, in the judgment relied upon by the learned counsel for the plaintiff in Parimal’s case (supra 2), the Apex Court observed as under:
“12. It is evident from the above that an ex parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.
13. “Sufficient cause” is an expression which has been used in a large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts, and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously.
16. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in
the case at hand. There cannot be a straitjacket formula of universal application.”
15. From a perusal of the above judgment, it is clear that the defendant must approach the Court with reasonable defence and that the sufficient cause is the cause for which the defendant could not be blamed for his absence and that there cannot be a straight-jacket formula of universal application.
16. In the instant case, as rightly observed by the Court below, though defendant Nos.2 and 3 could not get leave, nothing prevented defendant No.4 to appear before the Court below on the date of adjournment. Though the defendants pleaded that defendant Nos.2 and 3 could not get leave and defendant No.4 had to attend the college, that is not a sufficient cause, which prevented them from appearing before the Court below on the date of adjournment. The attendance of college is not beyond the control of defendant No.4 and that unless the nature of job is not permitting them to avail leave, defendant Nos.2 and 3 can avail leave. Further more, nothing was produced before the Court below to prove that defendant Nos.2 and 3 have applied for leave and the employers did not grant the same.
17. In our considered opinion, the Court below has dealt with all the aspects in proper perspective and rightly dismissed the application filed by the defendants. Therefore, we do not find any illegality or irregularity in the order passed by the Court below.
18. Accordingly, the civil miscellaneous appeal is dismissed. No order as to costs.
___________________ GHULAM MOHAMMED, J
March 06, 2012.
__________________ K.S. APPA RAO, J
KTL
3 issues framed by the court
Whether defendants showed sufficient cause for non-appearance to set aside an ex parte decree under Order IX Rule 13 CPC.
Whether inability to obtain leave of absence or attendance at college constitutes sufficient cause for non-appearance.
Whether the trial court erred in dismissing the application to set aside the ex parte decree.
Colour shows how this judgement treated each authority
G.P. Srivastava v. R.K. Raizada and othersExplained¶23
(2000) 3 Supreme Court Cases 54
Parimal v. Veena @ BhartExplained¶24
(2011) 3 Supreme Court Cases 545
1 provisions across 1 enactments
Defendant Nos. 2 to 4
Plaintiff
Ghulam Mohammed
K.S. Appa Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
