Allahabad High Court
Sri Rajendra Singh And Another vs Shri Malik Azim Khan on 9 November, 2017
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 25
Case :- MATTERS UNDER ARTICLE 227 No. - 1797 of 2012
Petitioner :- Sri Rajendra Singh and Another
Respondent :- Shri Malik Azim Khan
Counsel for Petitioner :- P.C. Jain
Counsel for Respondent :- Surendra Kumar
Hon'ble Siddhartha Varma,J.
Heard, Sri P.C. Jain, learned counsel for the petitioners and Sri Surendra Kumar, learned counsel for the respondent.
While J.S.C.C. Suit No. 125 of 2002 seeking a decree of ejectment and recovery of arrears of rent was proceeding against the petitioners/defendants and evidence was being led, the petitioners/defendants on 9.3.2010 could not be present in the Court and opportunity for cross-examining the plaintiff's witnesses was closed and the Suit was, after hearing the plaintiff's counsel, decreed on 29.3.2010.
The applicant-petitioner filed an application under Order IX Rule 13 of the C.P.C. for setting aside the ex parte judgment and decree dated 29.3.2010 which, however, was dismissed on 14.3.2011 saying that the application under Order IX Rule 13 of the C.P.C. was not maintainable and the Revision filed against it was also dismissed on 31.8.2012. Aggrieved thereof the instant writ petition has been filed.
The counsel for the petitioner submitted that under Order XVII Rule 2 of the C.P.C., if upon the absence of the defendants, the suit was disposed of then an application under Order IX Rule 13 of the C.P.C. would lie and has relied upon AIR 1987 SC 42 : Prakash Chander Manchanda and another, Versus Smt. Janki Manchanda. He has further stated that the Trial Court and the Revisional Court erred in dismissing the application of the petitioner as not maintainable under Order IX Rule 13 by saying that they had not proceeded under Order XVII Rule 2 of the C.P.C. but had decided the case on the basis of the material before the Court which was produced by both the sides.
Learned counsel for the respondents submitted that as the judgment and decree dated 29.3.2012 was passed after the defendants had appeared and had produced their documentary evidence it could not be said that it was an ex parte decree and, therefore, the provisions of Order IX Rule 13 of the C.P.C. would not apply. He further stated that since the judgment and decree dated 29.3.2010 was passed after the parties had appeared only a review application would lie.
In my view, the orders of the courts below are patently erroneous and cannot be sustained. The trial court itself on 9.3.2010 had, on account of the non-appearance of the defendants, proceeded under order XVII rule 2 of the C.P.C., directing the matter to proceed ex parte against the defendant and had fixed another date for the hearing the matter ex parte. Because of the passing of this order it could, without any doubt be said that the Court was proceeding in the manner a Court would proceed under Order IX as has been provided under Order XVII rule 2 of the C.P.C. The Order XVII Rule 2 is to be following effect:-
"2. Procedure if parties fail to appear on day fixed. - Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."
Once the Court proceeds in the mode provided under Order IX against the defendant, and thereafter, decrees the suit the defendant definitely gets a right to file an application under Order 9 Rule 13 of the C. P .C. As it was an ex parte decree the defendant could have also filed a regular first appeal. The choice was with the defendants and if they chose to file an application under order 9 rule 13 of the C.P.C., it was very much maintainable. AIR 1987 SC 42 : (Prakash Chander Manchanda and Another V. Smt. Janki Manchanda) is also of this view. It states:-
"It is clear that in cases where a party is absent only course is as mentioned in Order 17(3)(b) to proceed under Rule 2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fail to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined upto that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure. It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy."
Further, I find that when the application under Order IX Rule 13 was filed by the petitioner and an explanation was provided for his absence which was that he was ill then the plaintiffs in their a counter affidavit to the application of the defendants which was filed under Order IX Rule 13 had not disputed the illness of the petitioners/defendants.
In fact, the contents of the paragraph 14 of the writ petition were very vaguely denied by the respondents in his counter affidavit in paragraph no. 7. paragraph 14 of the writ petition and paragraph 7 of the counter affidavit are being reproduced here as under:-
"14. That the plaintiff in reply to restoration filed his counter affidavit, where in the facts relating to illness of the Defendants were not disputed and it was asserted that judgment was not an ex parte judgment but was given on merit, hence could not be set aside."
"7. That in reply to the contents of paragraph nos. 11 to 16 of the writ petition relates to record of the case. However, it has already been stated that the story said(sic) up to recall the alleged ex parte decree has already been denied by both the courts below. The judgement and orders passed by the courts below are just and fair and within the ambit of law, which do not require judicial scrutiny under Article 226 of the Constitution of India. The courts below have acted fairly and on the basis of material available on records."
Under such circumstances, the order dated 14.3.2011 passed by the Trial Court and the order dated 31.8.2012 passed by the Revisional Court are quashed. The judgement and decree dated 29.3.2010 passed in J.S.C.C. Suit No. 125 of 2002 is also set aside. The matter is remanded back to the Judge Small Causes Court which shall finally decide the suit No. 125 of 2002 after hearing the parties within a period of two months from the date of production of a certified copy of this order.
The writ petition is allowed.
Order Date :- 9.11.2017
praveen.
