Andhra Pradesh High Court - Amravati

G. Saraswathi vs G. Malleswari on 4 November, 2022

         THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


               Civil Revision Petition No.2467 of 2019

ORDER:

This civil revision petition, under Article 227 of the

Constitution of India, is directed against the order, dated

23.07.2019, allowing I.A.No.1140 of 2018 in O.S.No.614 of 2016 on

the file of the Court of Principal Junior Civil Judge, Ananthapuramu,

filed under Order IX Rule 13 CPC to set aside the ex parte decree

and judgment, dated 28.02.2017, passed against the defendant.

2. Heard Sri V. Nitesh, learned counsel for the revision

petitioner/respondent/plaintiff and Sri Harish Kumar Rasineni,

learned counsel for the respondent/petitioner/defendant.

3. The facts, in brief, are as follows:

The plaintiff brought the suit against the defendant seeking

permanent injunction restraining the defendant, her men, agents

and relatives from interfering with peaceful possession and

enjoyment of the plaintiff over the schedule property. The suit was

posted to 14.12.2016 for filing the written statement by the

defendant. On that day, as the defendant could not file written

statement, she was set ex parte and the suit was posted to

28.02.2017 for judgment. The defendant got good grounds and fair

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chances to succeed in the case. If the ex parte decree & judgment,

dated 28.02.2017, passed against her is not set aside, the

defendant would be put to great loss and hardship. Hence, the

defendant filed I.A.No.1140 of 2017 with a prayer to set aside the

ex parte decree & judgment, dated 28.02.2017, passed against her.

(b) The respondent filed counter opposing the petition and stating

that the petitioner was set ex parte on 14.12.2016. The present

suit was filed on 12.08.2016. Thereafter, the matter underwent

several adjournments, i.e., 14.09.2016, 19.10.2016, and

14.12.2016 for filing written statement. On 14.12.2016, as the

defendant has not filed her written statement, she was set ex parte.

Subsequently, the suit was posted to 31.01.2017 for evidence of

plaintiff; and, on 15.02.2017, the evidence of PW1 was recorded

and the matter was posted to 27.02.2017 for judgment.

Accordingly, on 28.02.2017, judgment was pronounced. In spite of

granting several opportunities, the petitioner never tried to contest

the matter and after grant of number of adjournments, she has filed

the present petition intentionally to drag on the proceedings in the

suit. No reasons are assigned for not filing the written statement

within time. The petitioner has not enclosed her written statement

even to the petition seeking to set aside the ex parte decree. After

a lapse of one and half year, the petition was re-presented which

shows that the petitioner is not diligent in prosecuting the case.

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There are no merits. The petition is filed only to harass the

respondent. The petition is liable to be dismissed.

4. On merits, the trial Court allowed the petition holding that no

prejudice would be caused to the respondent/plaintiff if the petition

is allowed.

5. The aggrieved plaintiff, preferred this revision petition

contending that the order of the trial Court, if allowed to stand,

would cause irreparable loss to the plaintiff and that the trial Court

ought not to have allowed the petition as the defendant was not

diligent in prosecuting the matter in spite of granting several

adjournments.

6. Though, while dealing with petition under Order IX Rule 13

CPC, sufficiency of the cause for not being able to represent the

matter on the relevant date shall be examined, the past conduct

and participation of the defendant cannot be ignored altogether.

The petitioner has filed the petition to set aside the ex parte decree,

dated 28.02.2017, within 30 days, i.e., on 02.03.2017. But, not

only on 28.02.2017, even earlier also, the petitioner has not shown

interest in prosecuting the matter. It is represented that the

petitioner has filed caveat before filing of the suit and there was

also exchange of notices before filing of the caveat and though he

filed appearance on 19.08.2016 on receipt of service of documents

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in the suit, written statement was not filed till 14.12.2016 and thus,

she was set ex parte on 14.12.2016 and later, finally, ex parte

decree was passed on 28.02.2017. It is only then she approached

the court with this petition, and therefore, it is not that the

petitioner has no knowledge of the proceedings in the suit, but she

was just watching the proceedings silently.

7. Even when this petition was filed, her callous approach is

evident from the affidavit in not setting out even a single reason as

to why she could not make a representation and file written

statement and allowed the proceedings in the suit to go on

ex parte. If at all, the petitioner speaks of any reason, the Court

will have an opportunity of examining whether it is sufficient cause

or not. In the absence of any reason, there is no possibility to

examine whether there is sufficient cause or not.

8. Learned counsel for the revision petitioner submitted that

when there is no sufficient reason shown by the petitioner, petition

under Order IX Rule 13 CPC cannot be allowed, and relied on the

following decisions:

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(i) M/s. Hira Sweets & Confectionary Pvt. Ltd. and others

v. Hira Confectioners1, wherein it was held at paragraph Nos.11,

12, 14, 15, 17, 18 and 22 as follows:

11. Insofar as the scope of an application under Order IX Rule 13 CPC is concerned, the Court has to see whether the summons in the suit were duly served or not and/or whether the defendant was prevented by any "sufficient cause" from appearing when the suit was called for hearing. In the present case, the defendant was duly served with the summons in the suit and had appeared.

12. "Sufficient Cause" is an elastic expression and no hard and fast guidelines are prescribed. The Court, in its discretion, has to consider the "sufficient cause" in the facts and circumstances of every individual case. Although in interpreting the words "sufficient cause", the Court has wide discretion but the same has to be exercised in the particular facts of the case.

14. In Sudarshan Sareen (Supra), a Division Bench of this Court while holding that the appellant therein, was wilfully negligent in not appearing and thus rejecting his prayer for setting aside of an ex-parte decree, relied on the following passage in the case of Parimal v. Veena reported as [(2011) 3 SCC 545], where the expression "sufficient cause" was interpreted as under:

"13. "Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously.

(Vide Ramial v. Rewa Coalfields Ltd. [AIR 1962 SC 361],

CS (COMM) 17/2018, dt.27.04.2021

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Lonand Gram panchayat v. Ramgiri Gosavi [AIR 1968 SC 222], Surinder Singh Sibia v. Vijay Kumar Sood [(1992) 1 SCC 70] and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn. (2010) 5 SCC 459].

xxx xxx xxx

15. While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all 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. (Vide State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94], Madanlal v. Shyamlal [(2002) 1 SCC 535], Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd. [2002) 3 SCC 156], Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195], Kaushalya Devi v. Prem Chand [(2005) 10 SCC 127], Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd. [(2005) 13 SCC 95] and Reena Sadh v. Aniana Enterprises [2008 : (2008) 12 SCC 589].)

16. In order to determine the application under Order 9 Rule 13 CPC, the test that 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 straitjacket formula of universal application.'

15. Recently, the Supreme Court in A. Murugesan v. Jamuna Rani reported as [(2019) 20 SCC 803] affirmed its earlier view in G.P. Srivastava v. R.K. Raizada and Others reported as [(2000) 3 SCC 54], which is reproduced as under:

"7. Under Order 9 Rule 13 CPC 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

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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 pate 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."

17. A perusal of the case record would show that the defendant had applied for a certified copy of the decree on 29.05.2019 which admittedly, was received by her on 18.07.2019. The defendant has failed to state that after becoming aware of the passing of the ex-parte decree on 18.07.2019, what steps were taken by it to seek setting aside of the same. It appears that the defendant rather preferred to sit over it. The captioned applications came to be filed on 19.10.2020, only after the plaintiffs filed the execution petition.

18. The Apex Court in decisions relied by learned counsel for the defendant has held that a party should not suffer from the inaction, deliberate omission or misdemeanour of his agent......

19. Insofar as the delay of 582 days in filing the application is concerned, the defendant has sought to explain the same by claiming that some settlement talks were going on between the parties. The defendant has also relied upon certain medical documents of the son and mother of the defendant's proprietor.

22. Accordingly, this Court is not inclined to accept the explanation provided by the defendant. Consequently, the captioned applications are dismissed."

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ii) Raghubir Sahai Bhatnagar v. Bhakt Sajjan 2, it was held at

paragraph No.12 as follows:

"12. In view of the above discussion, we are of the opinion that the applicant had failed to make out any sufficient cause for his absence on the date of hearing of the suit and the courts below rightly rejected his application for setting aside the ex parte decree. The application fails and is accordingly dismissed, but there will be no order as to costs."

9. On the other hand, learned counsel for the respondent also

relied on the following decisions in support of the contention that a

liberal approach may be adopted in dealing with petition under

Order IX Rule 13 CPC to advance justice by disposing of the matter

on merits rather than dismissing the petition on technicalities.

(i) In G.P.Srivastava v. R.K. Raizada and others3, it was held at

paragraph Nos.7 & 8 as follows:

"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

AIR 1978 All 139

(2000) 3 Supreme Court Cases

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particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have 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 initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where 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.

8. ........Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant-defendant is allowed opportunity to prove his case within a reasonable time.'

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(ii) In Mallaram Sanjeeva Goud v. P.Bhikshapathi 4 , at

paragraph No.18, it was held as follows:

"18. The Supreme Court in G.P. Srivastava v. R.K. Raizada and others (2000) 3 SCC Pg. 54 : 2000 (2) ALT 2.1 (DN SC) held that the term "sufficient cause" appearing in Order IX Rule 13 of Civil Procedure Code, 1908 refers to the sufficient cause for non-appearance on the date on which absence was held a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time; and if such sufficient cause is made out for non-appearance of defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier."

(iii) In Bhivchandra Shankar More v. Balu Gangaram More

and others5, at paragraph No.15, it was held as follows:

"15. It is a fairly well settled law that "sufficient cause" should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the Appellant. After referring to various judgments, in B. Madhuri, this Court held as under:

6. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast Rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay."

(2019) 5 ALT 19

(2019) 6 Supreme Court Cases 387

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(iv) In Robin Thapa v. Rohit Dora 6 , it was held at paragraph No.7 as follows:

"Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the Plaintiff or the Defendant. The cause of justice does require that as far as possible, adjudication be done on merits."

10. No doubt, the afore-stated proposition of law relied by the

respondent can be applied; if at all a petitioner sets out any reason.

Liberal approach does not mean that a helping hand should be given

to a party who is grossly negligent and treading on the rights of

other party who is vigilant and diligent in prosecuting their case.

11. Even when the defendant filed petition under Order IX Rule 13

CPC, she has not filed her written statement along with it to show

her bona fides. It is only after 1 ½ years, after filing the petition

i.e., on 28.07.2018, the written statement was filed, and that too,

with all mere denials of the averments made in the plaint and no

case of her own is spelt out. The written statement also appears to

be very casually pleaded, just for the sake of defence stating that