Allahabad High Court
Prakash Chand vs District Judge G.B. Nagar And Others on 1 May, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:78267
Court No. - 4
Case :- WRIT - C No. - 378 of 2003
Petitioner :- Prakash Chand
Respondent :- District Judge G.B. Nagar And Others
Counsel for Petitioner :- Hemendra Pratap Singh,Raj Kumar Kesari
Counsel for Respondent :- Krishna Murari,I.C.Tyagi,Pradeep Kumar Rai,S.C.
Hon'ble Ajit Kumar,J.
Re: Civil Misc. Delay Condonation Application No.- 3 of 2018
Cause shown for delay in filing the recall application is sufficient. Delay in filing the recall application is condoned.
Delay condonation application is allowed.
Order on Recall/ Restoration Application No.- 4 of 2018
Cause shown for non-appearance of the counsel on the date fixed when the petition was dismissed as infructuous is taken to be sufficient and accordingly, restoration application is allowed.
The order dated 1st December, 2011 is hereby recalled.
The petition is restored to its original number with the same status as it had prior to the passing of the order which has been recalled today.
Order on Amendment Application No.- 10 of 2022
Heard learned counsel for the parties.
Amendment application is allowed.
Learned counsel for the petitioner is permitted to carry out necessary amendment in the petition forthwith.
Order on Petition
Heard learned counsel for the parties and perused the records.
By means of this petition filed under Article 227 of the Constitution, petitioner has questioned the order passed by the trial court, whereby recall application under Order IX Rule 13 in respect of an ex parte judgment and decree has been rejected. He also challenged the order passed in Misc. Civil Appeal No.- 52 of 2002 affirming the order of the trial court.
The contention advanced by learned counsel for the petitioner is that the suit was filed by the plaintiff respondent for cancellation of the registered sale deed and he had put up his defence by filing written statement. He submits that the case was going on at the stage of framing of issues that suddenly he fell ill and, therefore, he could not appear in the court. Resultantly, the suit proceeded ex parte and got decreed on 17th August, 1991. After his recovery he moved an application for recall of the ex parte judgment and decree on 3rd December, 1991 annexing therewith a copy of the medical certificate evidencing the factum of evidence. However, the same has been rejected by the trial court only on the ground that recall was only maintainable in the case despite summons defendant could not appear. This view, according to the learned counsel for the petitioner, is erroneous in law because once the court proceeded ex parte and sufficient cause is shown by the defendant for not putting in appearance in suit proceeding an ex parte judgment and decree, could have been recalled.
He further submits that similar erroneous view was taken by the court sitting in misc. appeal while affirming the order of trial court. He further submits before this Court that ex parte judgment and decree passed by the trial court is not a judgment and decree within the meaning of Section 2(2) of Code of Civil Procedure, 1908 as there is no issue framed, nor any adjudication has taken place in the matter whereas written statement was already on record. He submits that written statement once was filed, the court was to apply its mind to the pleadings raised therein as well even while it proceeded ex parte. He has placed reliance upon the authority of this Court in the case of Sabbir Ahmed and others v. Additional District Judge and others, 2011 (3) All LJ 209.
Per contra, it is argued by Sri Pradeep Kumar Rai, learned counsel for plaintiff respondent that after ex parte judgment and decree even the execution has taken placed and registered sale deed has been cancelled.
Having heard learned counsel for the respective parties and having perused the records, the question of execution of cancellation of sale deed will not come in the way, in my considered view, of a decision on merits upon an application under Order IX Rule 13 of C.P.C. I have gone through the ex parte judgment and decree passed by the trial court on 17th August, 1991 and find that the trial court has simply proceeded to record statement of plaintiff and had decreed the suit. He has referred to the written statement filed by the defendant but has not considered it only on the ground that court had proceeded ex parte in the matter.
In my considered view, while the court was proceeding ex parte, the court ought to have considered the written statement and defence taken therein.
It is well settled law that whenever the suit filed and finally judgment is passed, it is an adjudication of lis between the parties. There has to be independent application of mind as to the issues emerging out from the plaint allegations and written statement if filed. There has to be a proper adjudication and only then it can be said that to be formal declaration of judgment to fall within the meaning of Section 2(2) of C.P.C.
In view of the above, this petition holds merit and is accordingly allowed.
The order passed by the trial court dated 23rd 23rd July, 2002 in Civil Misc. Case No.- 74 of 2001 and that of District Judge dated 8th October, 2002 passed in Misc. Appeal No.- 52 of 2002 stands set aside.
As a consequence thereof the order IX Rule 13 application is also allowed.
The judgment and decree passed by the trial court dated 17th August, 1991 is hereby set aside.
The suit is restored to its original number to be tried again as fresh.
Since the parties have already exchanged their pleadings in the suit, following directions are issued:
(a) If issues were not framed, the same will be framed within a period of 30 days' from the date of production of certified copy of this order.
(b). Thereafter, plaintiff shall conclude his evidence within a next period of 60 days and the defendant shall cooperate in recording of evidence of plaintiff within the time prescribed by this Court without seeking any unnecessary adjournment and every such adjournment should be visited with the cost, as may be assessed reasonable and appropriate by the court concerned;
(c). After evidence of plaintiff is concluded, the court will proceed to record evidence of the defendant and defendant shall conclude his evidence within the next 60 days' time and plaintiff shall cooperate in conclusion of the evidence of the defendant within the time prescribed by this Court without seeking any unnecessary adjournment and every such adjournment should be visited with the cost, as may be assessed reasonable and appropriate by the court concerned; and
(d). Soon after the conclusion of evidence by the respective parties to the suit, the trial court shall proceed to decide the suit as expeditiously as possible preferably within a further period of six months, however in the order of other expedited cases, if pending before it.
It is, however, clarified that in the event trial court is not able to decide the suit for any technical reason, such delay in disposal of the suit and pendency thereof shall ordinarily not be a ground sufficient enough to fasten the officer concerned with any personal liability of contempt.
Order Date :- 1.5.2024
Atmesh
