Smt. Shamim And 2 Others vs Aman Ullah Khan And 3 Others
2022 Latest Caselaw 16223 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 9667 of 2022
 

 
Petitioner :- Smt. Shamim And 2 Others
 
Respondent :- Aman Ullah Khan And 3 Others
 
Counsel for Petitioner :- Pramod Kumar Srivastava,Shashank Tripathi
 
Counsel for Respondent :- Mohammad Sadab Khan
 

 
Hon'ble Ajit Kumar,J.

1. Heard Sri Pramod Kumar Srivstava and Sri Shashank Tripathi, learned counsel for the petitioners and Mohammad Sadab Khan and Sri Brajesh Kumar, learned counsel for the contesting respondent.

2. By means of present petition filed under Article 226 of the Constitution, the petitioners have challenged the order dated 16.09.2022 whereby his miscellaneous application filed under Order IX Rule 13 for recall of an ex parte judgment and decree has been rejected. The order passed by the court sitting in revision dated 3rd October, 2022 confirming the order passed by the Judge, Small Causes in Suit No. 6 of 1992 has also been challenged.

3. The argument advanced by learned counsel for the petitioner is that both the courts below have proceeded on wrong presumption that application filed under the proviso to Section 17(1) of the Small Provincial Cause Courts Act, 1887 dated 13th July, 2021 had already stood disposed and, therefore, petitioner was hide bound in law to submit entire decretal amount to maintain an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) as per the order passed and he having not done so, was not entitled to recall of the order under Order IX Rule 13 of CPC.

4. In support of his argument learned counsel for the petitioner has drawn the attention of the Court towards the order-sheet dated 28th February, 2022, which records that an application under Section 17 has been filed and the applicant was directed to make deposit as per his own risk. The opposite party/ decree holder was directed to file his objection and the records of SCC Suit No. 01 of 2014 was summoned fixing 15.4.2022. On 15.4.2022, last opportunity was afforded to the decree-holder to file objection fixing 18.5.2022 and it was recorded that since decree-holder had died, therefore, time was granted for necessary substitution application fixing 14.7.2022. On 14.7.2022 substitution application was allowed and case was fixed for 31st August, 2022 for disposal of 4-C application which is order IX Rule 13 CPC application . Both the applications, it appears, were heard on 31st August, 2022 and 16.09.2022 was fixed for orders.

5. Submission advanced, therefore, is that instead disposing of the application paper no. 8-C, the trial Judge proceeded to dispose of application under Order IX Rule 13 CPC itself and then erroneously recorded finding that petitioners had not complied with mandatory requirement of deposit of decretal amount under the proviso to Section 17 of Act Act, 1887, application order IX Rule 13 CPC was not maintainable.

6. It is argued that the court sitting in revision has taken similar view holding that petitioners having deposited lessor amount than decretal amount, the proviso to section 17 of Act, 1887 stood not complied and, therefore, there was no manifest error in the order passed by the trial judge. Learned Advocate has drawn attention towards finding part of the judgment of the court sitting in revision, wherein it has categorically been recorded that 8-C application for submitting security having not been allowed, the petitioner was hide bound in law to pay entire decretal amount and in absence thereof, the order IX Rule 13 CPC was not maintainable.

7. Both the learned counsel appearing for the contesting respondent conceded to the extent that miscellaneous application bearing paper no. 8-C was never finally disposed. Consideration was to be accorded to the application at the time of hearing and, therefore, the deposit made by the petitioner at his own risk would mean that in the event application was rejected, he would have to deposit the entire amount, failing which Order IX Rule 13 CPC would be liable to be dismissed. They submit that the Court on that count was not justified in dismissing the Order IX Rule 13 CPC application on the ground that 8-C application to submit security was not allowed. Even otherwise from the perusal of the orders impugned, I find that the Court had proceeded on the assumption that application under the Proviso 17(1) of Act 1887 had stood disposed of .

8. The ordersheet reflects otherwise. The ordersheet shows that on 28th February, 2022, the decree holder was directed to file objection and petitioner was permitted to deposit amount at his own risk. The petitioner did deposit the amount as per his own application and, therefore, first thing should have been for the court to decide the said application filed under proviso to Section 17(1) of Act, 1887.

9. In the circumstances, I am of the considered view that both the court below manifestly erred in rejecting the order IX Rule 13 application.

10. I would have remanded the matter to be decided afresh as far as paper no. 8-C is concerned and then order IX Rule 13 application but I find that even judgment and decree which is ex parte one is without formulating any point for determination and, therefore, such judgment cannot pass test of being an adjudication of lis between litigating parties, may be ex parte. This has been held by this Court and by Supreme Court as well that such judgment cannot amount to a decree within the definition of decree under Section 2(2) of CPC.

11. Principles of adjudication have been reiterated time and again by this Court even and in this regard a judgment of Rameshwar Dayal v. Banda, 1993 (1) SCC 531 cited before this Court as relied upon the judgment in the case of Commissioner of Income Tax v. Surendra Singh Pahwa, 1995 AIR (All) 259 vide paragraph 5 and 6, the Court has held thus:

"5. Having heard the learned counsel for the parties and having perused the judgment dated 5-1 -1994, I am of the view that it cannot be sustained. Even an ex parte judgment should satisfy the description of 'judgment' as laid down in Order 20, Rule 4(2), C.P.C., which visualises that the judgment of a Court other than the court of Small Causes "shall contain aeoncise statement of the case, points for determination, decision and the reasons for such decision." A 'judgment' for its sustenance must contain not only findings on the points, but must also contain:' what evidence consists of, and how does not prove plaintiff's case. A judgment unsupported by reasons is no judgment in the eye of law. It is well settled that reasons are the links between the material on record and the conclusion arrived at by the Court. Mere fact that the defendant absented himself on the date of hearing and the suit proceeded ex parte, did not by itself entitle the plaintiff to get a decree in his favour. The court was under an obligation to apply its mind to whatever ex parte evidence or affidavit filed under Order 19 of the Code is on the record of the case, and application of mind must be writ large on the face of record. This is possible only if the court directs itself to whatever material is on record of the case, analyses the same and then comes to any conclusion on the basis of evidentiary value of the ex parte evidence or affidavit brought on record by the plaintiff. It may also be observed that the written statement already filed in this case would not be deemed to have been wiped off the record merely because the defendant did not appear on the date of issues and the suit was ordered to proceed ex parte. The trial court ought to have, on consideration of pleadings, formulated points for determination. The judgment dated 5-1-1994 does not satisfy these tests in as much as apart from stating parties' case, the learned Additional Civil Judge has not stated as to what was the evidence on record and how did it prove the plaintiffs case. All that the learned trial court has stated is that affidavit was filed on behalf of the plaintiff which completely proved his case. The finding and the reasons as given by the learned trial court run as thus:--

" VADI NE APNE SHAPATH PATRIYA SAKSHYA DWARA VAD PATRA ME KAHE GAVE ABHIKATHNON KA PURNRUREN SAMRTHAN~KIYA HAI TATHA VADI KA VAD VIRUDDHA PROTIVADIGAN EK PARKSHIYA DECREE HONE YOGYA HAI".

What follows the aforequoted observation is the operative portion of the judgment. It is thus evident that the judgment given by the learned trial court is no judgment in the eye of law. In Rameshwar Dayal v. Banda (dead) through his LR's 1993 All CJ 597, a judgment of Judge Small Causes Court without setting out the points for determination and without giving findings thereon was held by the Supreme Court as a judgment not amounting to a decree within the meaning of Section 2(2) read with Section 2(9) and Rules 4 and 5 of Order 20, C.P.C. In the facts and circumstances of the case, therefore, this court is inclined to set aside the judgment and decree but not without the appellant being saddled with cost which I assess to be Rs. 2,000 / - (two thousand only) in as much the appellant has not been diligent in prosecuting its case before the trial court and this has led to an avoidable harassment to the plaintiff respondent who must be compensated by cost."

12. In such above view of the matter therefore, I set aside the judgment order passed by Trial Judge dated16.09.2022 as well as the court sitting in revision dated 3rd October, 2022. The miscellaneous application being paper No. 8-C stands allowed. The petitioners are directed to submit security in terms of personal bond by way of affidavit for the remaining decretal amount and also submit papers in respect of any property movable or immovable that he wants to submit by way of security within a period of three weeks from today.

13. Order IX rule 13 CPC application in the circumstances also stands allowed. The judgment and decree passed by the trial judge dated 26.09.2019 in SCC Case No. 1 of 2014 is hereby set aside. The suit is restored to its original number and now shall be decided expeditiously. The petitioner shall be filing written statement within a period of eight weeks from today. The replication, if any, may be filed within four weeks thereafter and thereafter parties shall lead their respective evidence within two months' time each. After the parties conclude their evidence, the Court shall proceed to conclude and decide the case within next three months' time.

14. It is, however, provided that in the event petitioner fails to submit sureties as directed hereinabove, the defence of the defendant petitioner shall be struck off with no further opportunity to challenge the order striking off the defence and court will further proceed to decide the suit finally.

Order Date :- 9.11.2022

Sanjeev