THE HONOURABLE JUSTICE G. SRI DEVI
C.M.A. No. 538 of 2020
JUDGMENT:
This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of C.P.C., against the order, dated 09.01.2020, passed in I.A.No.549 of 2019 in O.S.No.670 of 2012 by the XI-Additional Chief Judge, City Civil Court at Hyderabad, dismissing the petition filed by the appellant, under Order IX Rule 13 of C.P.C., to set aside the ex parte decree passed on 08.02.2019 in O.S.No.670 of 2012.
The appellant is the petitioner/2nd defendant and 1st respondent herein is the plaintiff and the other respondents are defendant Nos.3 to 11 before the trial Court.
Necessary facts for disposal of this Civil Miscellaneous Appeal are as follows:
The 1st respondent/plaintiff filed a suit against the 1st defendant, who is the husband of the appellant/2nd defendant, seeking the following reliefs:-
1) to direct the defendant to deliver possession of the suit schedule property to the plaintiff;
2) to direct the defendant to receive the remaining balance amount of Rs.6,95,000/-;
3) consequently to restrain the defendant from creating any third party interest in the suit schedule property;2
4) to grant costs of the suit and pass such other order or orders as the Court may deem fit and proper in the circumstances of the case.
During the pendency of the suit, Syed Chand Habeeb (1st defendant), husband of the appellant, died on 23.01.2017 leaving behind his two wives and eight children and they were added as defendant Nos.2 to 11. The appellant, who is the wife of Syed Chand Habeeb, made appearance by engaging her advocate. As the appellant failed to file the written statement, an ex parte decree was passed in the said suit on 08.02.2019. On coming to know about passing of the said decree, the appellant filed I.A.No.549 of 2019 seeking to set aside the ex parte decree. It is stated in the affidavit filed in support of the petition that the above suit was filed by creating a false and baseless story against her husband and that the entire contents of the plaint are concocted to usurp the suit schedule property. It is further stated that she is a Green Card Holder of United States of America since 27.03.2002 and the said card is valid till 16.03.2022 and as there are changes in law, she had to leave India for United States of America to complete the formalities as per the American Laws and Rules and as such she could not appear before the trial Court to contest the suit by filing written statement and she came back to India only on 14.02.2019. It is further stated that non-appearance of the 2nd defendant was neither wilful nor wanton and that she has got a good case to contest the suit by filing 3 written statement and, therefore, prayed to set aside the ex parte decree passed in the said suit.
A counter-affidavit has been filed by the 1st respondent/ plaintiff contending that the said petition was filed with false and baseless grounds and that the appellant after her impleadment in the suit got filed Vakalath through her counsel; that neither the appellant nor her Counsel appeared before the Court to file additional written statement; that the appellant has not explained how she got knowledge about the passing of ex parte decree when she went to America and why other defendants have not appeared to defend the case; that the appellant did not make out a case by showing substantial reasons and facts to set aside the ex parte decree and that the husband of the appellant had received substantial amount and got executed registered sale deed in favour of the plaintiff and hence the ex parte decree cannot be set aside under any circumstances. It is further stated that the appellant and other defendants have no case at all and only to drag on the matter, the present petition has been filed and that the appellant has failed to explain as to how the present application is maintainable without filing delay petition.
After considering rival contentions and the material available on record, the trial Court dismissed the petition. Aggrieved by the same, the 2nd defendant has preferred the present Civil Miscellaneous Appeal.
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Heard learned Counsel appearing for the appellant, learned Counsel appearing for the 1st respondent/plaintiff and perused the record. As per the cause title itself respondent Nos.2 to 10 are not necessary parties.
Learned Counsel for the appellant/2nd defendant would submit that the trial Court erred in dismissing the application filed under Order IX Rule 13 of C.P.C., to set aside the ex parte decree, dated 08.02.2019 notwithstanding the fact that the appellant was able to show sufficient cause that she was not in India at the relevant point of time when the suit was called for hearing. It is further submitted that the trial Court erred in not accepting the contention of the appellant that she went to U.S.A. and came back to India on 14.02.2019 and that the endorsements dated 22.03.2018 and 18.01.2019 of the Immigration Authorities of the United States of America admitting the appellant in the U.S. would sufficiently prove that the appellant was not able to appear when the suit was called for hearing due to her staying in U.S. It is also submitted that the trial Court ought to have noticed that the words 'was prevented by any sufficient cause from appearing' in Order IX Rule 13 of C.P.C. must be liberally construed to do complete justice between the parties and enable the parties to contest the case on merits particularly when the consequence of ex parte decree would dispossess the appellant and cause irreparable injury and hardship. It is further submitted that the trial Court ignored the settled 5 principle of law that while dealing with an application under Order IX Rule 13 of C.P.C., the Court has to take liberal view as ordinary litigant should not be denied hearing on merits unless something akin to gross negligence or misconduct in conducting proceedings and that the trial Court ought to have seen that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the Courts may in the larger interests of administration of justice to excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best and that the trial Court ought to have noticed that in the case of present nature when the suit is pending for a long time and the appellant has come on record only as a result of her husband's death, justice would be met if ex parte decree is set aside and the case is decided on merits. In support of his arguments, he relied upon the following judgments of the Apex Court as well as this Court.
1. G.P.Srivastava v. R.K.Raizada and others1
2. Yelka Ram Reddy and others v. Kancharla Indira and others2 Learned Counsel for the 1st respondent/plaintiff would submit that the appellant had failed to appear before the trial Court at the time of hearing of the suit and also failed to show the sufficient cause for setting aside the ex parte decree and as such the 1 (2000) 3 SCC 54 2 (2004) 5 ALT 48 (S.B.) 6 trial Court has rightly dismissed the petition filed under Order IX Rule 13 of C.P.C. In support of his contentioinis, he relied upon the following judgments.
1. Rasiklal Manickchand Dhariwal and another v. M.S.S. food Products3
2. Parimal v. Veena4
3. Gangina Veera Venkamma v. M.Venkataramayya5
4. N.P.Siddaiah v. M/s. K.Gopal and sons6 and
5. Chigurupalli Satyanarayana v. The Amadalavalasa Co- operative Agricultural Industrial Society Limited7 Before proceeding further, it would be useful to refer to Order IX Rule 13 of the CPC which reads as follows:-
"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 made 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."
In G.P.Srivastava v. R.K.Raizada and others (1 supra), wherein the Apex Court held as under:3
2012 AIR SCW 1101 4 AIR 2011 SC 1150 5 AIR 1981 AP 199 6 AIR 1985 Karnataka 175 7 AIR 1975 AP 196 7 "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 "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 penalised 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."
While deciding whether there is a sufficient cause or not, the Court must bear in mind the object of doing substantial justice to all 8 the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. In order to determine the application under Order 9, Rule 13 CPC, the test 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 strait- jacket formula of universal application.
It is well settled that the words "sufficient cause" have got to be construed with regard to the facts and circumstances of each case. "What is" or "what is not" sufficient cause for non-appearance is a question of fact depending upon varied and special circumstances of each case. The words "sufficient cause" are to be liberally construed. For setting aside the ex parte decree passed, the Defendant has to only show cause for his absence on the day when the exparte decree was passed. The Defendant is not required to show cause for his absence on all previous dates of hearing though the conduct may be a relevant factor to be taken note of. 9
In the instant case, it is not in dispute that the suit was initially filed against the husband of the appellant, who died on 23.01.2017, leaving behind the appellant and respondent Nos.2 to 10 herein as his legal heirs and on the Memo filed by the Counsel to that effect notices were issued to them and the appellant appeared before the Court. The said suit was decreed ex parte on 08.02.2019. As per the endorsement made at page No.6 of the passport of the appellant, she went to America on 22.03.2018 and came back to India only on 14.02.2019. That apart, the appellant is the Green Card Holder of United States of America, which is valid from 27.03.2002 to 16.03.2022. It is the case of the petitioner that due to changes in law, she had to leave India for United States of America to complete the formalities as per the American Laws and Rules. The trial Court has adopted a very narrow approach in dealing with a matter pertaining to the recovery of possession despite the fact that the appellant had put a reasonable defence and had approached the Court for setting aside the ex parte decree, admittedly, within the statutory period. Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex parte decree could have been set aside on such other terms and conditions as were deemed proper by the trial Court. The ends of justice can be met only if the appellant is allowed opportunity to prove her case on merits within a reasonable time.
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For the aforesaid reasons, the Civil Miscellaneous Appeal is allowed by setting aside the order, dated 09.01.2020 passed in I.A.No.549 of 2019 in O.S.No.670 of 2012 by the XI-Additional Chief Judge, City Civil Court at Hyderabad and accordingly, the ex parte decree passed against the appellant and other defendants on 08.02.2019 in O.S.No.670 of 2012 is hereby set aside on payment of costs of Rs.10,000/- to the other side. The trial Court is directed to dispose of the suit after affording an opportunity to both the parties, as early as possible, preferably, within a period of six months from the date of receipt of a copy of this order.
Miscellaneous petitions, if any, pending, shall stand closed.
_____________________ JUSTICE G.SRI DEVI 22.01.2021 Gsn/gkv