Santosh Uppal vs M/S Dharam Pal Sandeep Kumar Gupta ...
2021 Latest Caselaw 1655 j&K

                                                                      Sr. No.60
        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                                  Pronounced on : 10.12.2021
                                                     RFA No. 22/2019
                                                     CM No. 4029/2019
                                                     CM No. 4030/2019


Santosh Uppal                                                  .....Petitioner(s)

                       Through: Mr. R.K.Bhatia, Advocate.
                  Vs

M/s Dharam Pal Sandeep Kumar Gupta and                          ..... Respondent(s)
another

                       Through: Mr. R.P.Sharma, Advocate.

Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                  JUDGMENT

1. The present petition is treated as revision petition. The judgment and

decree was passed against the petitioner herein, defendant in the suit, by the

Court of learned Principal District Judge, Jammu vide dated 17.10.2017. The HIGH O Fdefendant decree is passed against the JAMM forUamount & of Rs.3,20,750/- along with COURT interest @ 8% per annumKfrom A Sthe HM I Rof institution date A N D of the suit till realization of LADAKH the decreetal amount. The petitioner moved an application under Order 9 Rule

13 CPC for setting aside ex-parte judgment and decree. The Court set aside the

ex-parte decree subject to the deposit of the 50 % of the decreetal amount in the

court within a period of 15 days and payment of compensatory cost of Rs.

5,000/- to be paid by the defendant to the plaintiff. By virtue of said order, it was

further directed that in case the defendant fails to deposit the 50 % of the

decreetal amount the application filed for setting aside the ex-parte

judgment/decree shall be deemed to have been dismissed. The petitioner-

defendant in the meanwhile moved application for review of the order but was

dismissed vide order dated 23.01.2019. Inspite of dismissal of the review

application, the Court still granted final opportunity of five days to the defendant

to deposit 50% of the decreetal amount failing which the application under

Order 9 Rule 13 shall be deemed to have been dismissed. As the petitioner

herein did not comply the order dated 23.01.2019 also, the application filed

under O 9 R 13 CPC, as per order dated 29.1.2019, was held deemed to have

been dismissed.

2. The present petition has been filed by the petitioner-defendant against

orders dated 02.01.2019 and 29.01.2019 respectively on the ground that the

learned Court has not recorded any reason while imposing condition of deposit

of 50 % of decreetal amount and that the direction for such deposit is, in any

case, onerous as the defendant is unable to deposit it. It is further pleaded that

the compensatory cost having been directed to be paid while deciding the

HIGH application for setting aside judgment/decree the Court could not direct for OF JAMMU & COURT deposit of 50 % of the decreetal amount.

KASHMIR AND

3. The respondents have appeared in the appeal and have contested the LADAKH submissions made in the present appeal.

4. Learned counsel appearing for the petitioner has argued that the

direction given for deposit of 50% of the decreetal amount is unjustified though

the court set aside the decree passed against her while passing directions in the

application for setting aside the decree. The petitioner is not in a position to

comply with the order as she is unable to deposit 50% of the decreetal amount.

5. Learned counsel for the respondents-plaintiffs has argued that the

Court had every discretion to direct deposit of 50 % of the decreetal amount.

The defendant not only failed to carry out the directions of the Court she also

failed to make out a case for her in the review petition. The defendant failed to

deposit the requisite amount even as the indulgence was shown by the court vide

order dated 23.01.2019.

6. The issue which requires consideration is as to whether the Court

while setting aside the ex-parte decree could impose the conditions as initially

ordered vide dated 02.01.2019. The plaintiff had earned the money decree in his

favour. The defendant did not choose to contest the suit after having initially

caused her appearance as is evident from the decree passed by the court. The

trial court apparently did not find that sufficient reason was shown by the

defendant for setting aside ex-parte decree yet in the interest of justice the ex-

parte decree was set aside but subject to the conditions as mentioned above. The

HIGH court while setting aside the ex-parte decree could direct the defendant to OF JAMMU & COURT deposit reasonable amount of the decreetal amount cannot be disputed. It is not KASHMIR AND that the court has passed the order in the absence of provision of law.

LADAKH O9R13CPC arms the court to set aside the decree upon such terms as to costs,

payment into court or otherwise as it thinks fit. The court was within its

discretion in passing the direction for costs and deposit of portion of the

decreetal amount.

7. The Hon'ble Apex Court in AIR 2007 SC 67 held that the court is

competent to direct the defendant to pay portion of the decreetal amount while

setting aside ex-parte decree. Of course the condition imposed has to be

reasonable and legal.

8. The condition imposed by the court to deposit 50% of the decreetal

amount cannot said to be unjustified. The discretion shown by the court is not

arbitrary. The defendant cannot take the plea that as the application filed for

setting aside decree was allowed the court could not impose the deposit of the

portion of the decreetal amount. The court has shown leniency to the defendant

to contest the suit again inspite of the fact that the court did not otherwise find

merit in the application filed for setting aside decree.

9. It appears that the defendant was not serious about the contesting the

suit as instead of complying with the directions of the court she preferred review

of the directions passed by the court and even thereafter failed to comply with

the order dated 23.1 2019 whereby further five days time was granted to do the

needful in terms of order dated 02.1.2019.

10. HIGH In totality of the circumstances of the case this Court does not find the OF JAMMU & condition imposed regarding C OUR deposit of T 50% of the decreetal amount as KASHMIR AND unreasonable or excessive. As the defendant failed to comply with the court LADAKH directions, the court was left with no other option but to pass order impugned

dated 29.01.2019 whereby the application filed under O 9 R 13 CPC was held to

have been deemed to have been dismissed. No interference is called for in the

orders dated 02.01.2019 and 29.01.2019. The petition is without merit and is

dismissed.

(Puneet Gupta) Judge Jammu 10.12.2021 Shammi Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No