Paras Nath vs Ram Narain Singh And Others
2017 Latest Caselaw 7335 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 25
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 37 of 2009
 

 
Petitioner :- Paras Nath
 
Respondent :- Ram Narain Singh And Others
 
Counsel for Petitioner :- Kripa Shanker Singh,Ajai Shanker Pathak
 
Counsel for Respondent :- S.C.,A.K. Mishra,P.S. Tewari
 

 
Hon'ble Siddhartha Varma,J.

Heard learned counsel for the petitioner Sri Ajay Shanker Pathak.

When the Suit was filed by the respondent no. 1 against the petitioner, the respondent nos. 2, 3/1, 3/2 and 3/3, the defendant/respondent no. 2 alone filed her written statement. However, the petitioner who was also a defendant in the case, though had filed a Vakalatnama of a counsel had not been able to file his written statement. Resultantly, the Suit was ordered to proceed ex parte on 7.3.2003. Thereafter, 27.4.2003 was fixed for the framing of issues. When the petitioner came to know about the order dated 7.3.2003 by which the case had been ordered to proceed ex parte, he filed an application on 14.2.2008 for recalling the order dated 7.3.2003. The plaintiff/respondent no. 1 filed his objection against the recall application. The recall application was rejected on 7.4.2008 and, therefore, the petitioner filed a revision which was also dismissed on 16.10.2008. The petitioner has, therefore, filed the instant writ petition.

Learned counsel has submitted that when the Suit was directed to proceed ex parte under Order IX Rule 6 of the C.P.C., then the petitioner had filed an application under Order IX Rule 7 of the C.P.C. wherein he had assigned good reasons for his previous non-appearance. He submits the Court should have recalled the order to proceed ex parte and should have directed for the hearing of the defendant as if he had appeared on 7.3.2003.

Learned counsel has read out of the provisions of the Order IX Rule 6 of the C.P.C. and Order IX Rule 7 of the C.P.C. and therefore, they are being reproduced here as under:-

6.Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not appear when the suit Is called on for hearing, then

(a) When summons duly served--lf it Is proved that the summons was duly served, the court may make an Order that the suit be heard ex parte;

(b) When summons not duly served--if it is not proved that the summons was duly served, the court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time--if it is proved that the summons was served on the defendant, but not insufficient time to enable him to appear and answer on the day fixed in the summons, the court shall postpone the hearing of the Suit to a future day to be fixed by the court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owning to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the court shall Order the plaintiff to pay the costs occasioned by the postponement.

And

7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non appearance.- Where the court has adjourned the hearing of the Suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

Learned counsel submitted that the reason given in the order dated 7.4.2008 which was confirmed by the revisional court on 16.10.2008 was absurd and stated that the order dated 7.3.2003 to proceed ex parte should have been recalled and the clock should have been put back to 7.3.2003 and the suit should have proceeded from where it had wrongly been directed to proceed ex parte.

Learned counsel submitted that even, otherwise, if the Court found that the cause shown by him for non-appearance on 7.3.2003 was not sufficient and that the clock could not be put back he could not have been forbidden to take part in the further proceedings of the Suit.

Learned counsel submitted that he could not have been denied the right to defend himself from the stage where he again entered in the year 2008.

In support of his submission, the petitioner has cited AIR 1964 SC 993 : (Arjun Singh Versus Mohindra Kumar and Ors.) and has read out a certain portion of paragraph 19 which is being reproduced here as under:-

"Having thus exhausted the cases where the defendant is not properly served, R 6(1)(a) enables the Court to proceed exparte where the defendant is absent even after due service. Rule 6 contemplates two cases: (1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and (2) where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case O. IX, r. 13 would come in. The defendant can, besides filing an appeal or an application for review, have recourse to an application under O. IX, r. 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of O. IX, r. 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non- appearance on the previous day or days he might have the earlier proceedings recalled" set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. "

He further cited AIR 2002 (5) SCC 30 : (Vijay Kumar Madan and Others Versus R.N. Gupta Technical Education Society and Others) and has read out paragraph 7 which is being reproduced here as under:-

"Power in the Court to impose costs and to put the defendant-applicant on terms is spelled out from the expression "Upon such terms as the Court directs as to costs or otherwise". It is settled with the decision of this Court in Arjun Singh v. Mohinder Kumar and Ors., AIR (1964) SC 993, that on an adjourned hearing, in spite of the Court having proceeded ex-parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be relegated back and re-open the proceedings from the date wherefrom they became ex- parte so as to convert the ex-parte hearings into bi-parte. While exercising power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not in the garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed out in the case of Arjun Singh (supra), the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation."

Under such circumstances, it becomes evident that if the petitioner is able to show a good cause for his non-appearance on 7.3.2003 then the case for the petitioner/defendant could begin from 7.3.2003, after actually putting the clock back. However, if the petitioner was unable to show a good cause for non-appearance then the minimum the court should have done was to allow him to participate from the time he re-entered the suit.

From a perusal of the record, it appears that the petitioner was prevented from appearing on 7.3.2003 because of a definite reason, which has unfortunately not been considered by the two courts. In the application, he had definitely stated that he was not aware about the proceedings and was also not aware about the date. The order dated 7.3.2003, therefore, is being quashed. In fact, after 2003, the application was filed in the year 2008 and the Court had observed that the petitioner had approached the Court for recalling the order dated 7.3.2003 after 13 years. This apparently was a wrong observation.

Under such circumstances, the orders dated 7.3.2003 and 7.4.2008 passed by Civil Judge, Junior Division. Robertsganj, Sonebhadra and the order dated 16.10.2008 passed by the District Judge, Sonebhadra, are quashed.

The writ petition is, accordingly, allowed.

The suit shall proceed from the stage where it had reached on 7.3.2003.

Order Date :- 28.11.2017

praveen.