Sahdeo Choubey vs Arjun Choubey ... ...Plaintiff/
2023 Latest Caselaw 3544 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
              W.P.(C) No. 6020 of 2017
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1. Sahdeo Choubey

2. Bhim Choubey

3. Yudhishthir Choubey @ Judhisthir Choubey .... ....Petitioners Versus

1. Arjun Choubey ... ...Plaintiff/ Respondent

2. Nakul Choubey

3. Bhola Nath Choubey

4. Bhagirathi Choubey .... ....Proforma/Respondents

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PRESENT

HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Petitioners : Mr. Sanjay Kumar Tiwari, Advocate : Mr. Sachin Kumar, Advocate For the Respondents : None

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C.A.V. ON 06.09.2023 PRONOUNCED ON 18.09.2023

1. Heard learned counsel for the petitioners Mr. Sanjay Kumar

Tiwari. However, the respondents did not appear inspite of valid service of notice.

2. This writ petition has been filed under Article 227 of the Constitution of India for quashing the order dated 18.09.2017 passed by the learned Additional Civil Judge (Junior Division), Garhwa in Original Title Suit No. 28 of 2016 (hereinafter called as impugned order) whereby and whereunder, the learned Additional Civil Judge (Junior Division) has rejected the application of petitioners/defendants under Order 9 Rule 7 read with Section 151 CPC.

3. Factual matrix giving rise to this petition is that the respondent no. 1/plaintiff has instituted the aforesaid Title Suit against present petitioners/defendant nos. 1, 3 and 4 and proforma defendants nos. 2, 5 and 6/proforma respondent nos. 2, 3 and 4 seeking declaration of their right, title and share in the suit land and further declaration that the deed of gift executed in favour of the defendants/petitioners in the year 1986 is void, ab-initio and inoperative, conferring and conveying no title.

Argument on behalf of the petitioners:

3. Learned counsel for the petitioners assailing the impugned order has submitted that neither summons through ordinary process nor the registered summons were ever received by any of the defendants and

the publication of summons in newspaper also could not be known to the petitioners. The petitioners recently got knowledge through rumor in the village about ex-parte proceedings in the said suit against them and they promptly appeared before the court below and filed their applications for setting aside ex-parte proceedings, but the learned court below without assigning any valid reasons and without considering the provisions of order 9 Rule 7 CPC not only dismissed the petition for recalling the ex-parte order but also debarred them from filing their written statement. The impugned order is absolutely illegal and devoid of any reasons. Hence, fit to be set aside and the petitioners may be provided opportunity to file their written statement to address and contest the suit on merits.

4. On the other hand, no one has appeared on behalf of the plaintiff/respondent as well as proforma respondents to rebut the contentions of the learned counsel for the petitioners. However, it is apparent from the impugned order that the stand of the plaintiffs/respondents while refuting the petition filed by the petitioners is that the summons have duly been served upon the defendants through Nazarat as well as through registered post but they had refused to take summons or registered post with a view to avoid appearance and inspite of publication of summons in local newspaper Dainik Bhasker, they did not appear. The defendants were keeping watch to the proceeding of the case and just after the court proceeded ex-parte the present petition was filed on false plea which is fit to be rejected.

: Point for determination:

5. The only question for determination in this case is as to impugned order suffers from any illegality or infirmity calling for any interference by way of this petition under Article 227 of the Constitution of India?

6. Before imparting my judgment on above point, relevant provisions for appearance and consequences of non-appearance in a suit and remedy, therefore, has to be discussed.

Order 9 Rule 6 C.P.C.

Rule 6: The procedure when only plaintiff appears- (1) where the plaintiff appear and the defendant does not appear when the suit is called on for hearing, then -

(a) When summons duly served- if 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 in sufficient time to enable him to appear and answer on the day fixed on the summons, the court shall postpone the hearing of the suit for 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 owing to the plaintiffs 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.

Rule 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 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 cost or otherwise, be heard in answer to the sutit as if he has appeared on the day fixed for his appearance.

7. In the case of Vijay Kumar Madan and Others vs. R. N. Gupta Technical Education Society and Others reported in (2002) 5 SCC 30 reiterating the principles laid down in the case of Arjun Singh vs. Mohinder Kumar and Ors. reported in AIR 1964 SC 993 dealing with the scope and objects of Order 9 Rule 7 the Hon'ble Supreme Court observed as follows:

"7. Power of 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. Mohindra Kumar [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 reflected back and reopen 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 in, 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 [AIR 1964 SC 993] 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."

8. Now coming to the factual status of the Original Suit No. 28 of 2016, it is apparent that the suit was instituted on 19.08.2016 and admitted on 09.09.2016 and from perusal of the entire order-sheets produced by the learned counsel for the petitioners through supplementary affidavit, it appears that summons issued against the defendants were returned un-served due to their non-appearance at the house and the service of summons sent through registered post with A/D were also never received by the court or returned back till 20.03.2017. Thereafter, vide order dated 20.03.2017 on request of the plaintiff the court ordered for newspaper publication of summons in "Dainik Bhasker". The summons was published on 15.04.2017 mentioning the date of appearance on 25.04.2017. Thereafter, the case was heard on 30.05.2017 and on the strength of paper publication of the summons, notice of the case was presumed against the defendants/petitioners and the court preceded ex-parte against all the defendants and fixed the case for plaintiffs evidence. It further appears that most of the defendants appeared on 28.06.2017 and an application for recalling the ex-parte order was filed meanwhile the case was transferred to another court where the case was listed for the first time on 20.07.2017 but again adjourned for hearing on the petition. On 25.08, 2017 defendant no. 2 also appeared and filed written statement and both the petitions were taken together for hearing and disposal on 18.09.2017. The impugned order clearly goes to show that the learned court below has simply recorded finding that "even after due service of summons the defendants did not appear inspite of ample opportunity given to them to file their written statement, they did not file written statement. Hence, the applications filed by defendants dated 28.06.2017 and 25.08.2017 respectively holds no good and thus it was rejected".

9. From perusal of the impugned order it is crystal clear that the learned court below has not gone through the provisions of Order 9 Rule 7 CPC which specifically mandates that if the defendant shows good cause for his non-appearance on previous dates ex-parte hearing of the suit, he can be allowed to file written statement and contest the

suit and if no good cause is shown he cannot be allowed to take part in the further proceeding of the suit.

It is also settled law that if the suit is pending adjudication and no prejudice shall be caused to the other side, the petition filed under Order 9 Rule 7 CPC may be liberally construed and hyper technical approach should be avoided securing the ends of justice.

It must always be born in mined while deciding the fate of party to participate in a suit or proceeding, our law of procedure are grounded on "principle of natural justice" which requires that no one should be condemned unheard, the decision should not be reached behind back of the parties, the proceedings affecting their live and property should not continue in their absence and they should not be precluded from participating in them. The principle laid down under Order 9 Rule 7 CPC is also based on above laudable object.

It must also be remembered that the courts are respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice and is accepted to do so and further taking into consideration the fact that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done.

All the rules of procedures are the handmaid justice. The language implied by the draftsman of processual law may be liberal or stringent, but the fact remains that the objects of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensession. Unless compelled by expression and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would lead the court helpless to meet extraordinary situations in the ends of justice.

Keeping in the view provisions of Order 6 Rule 7 CPC, principle propounded by Hon'ble Apex Court as discussed above. It is crystal clear that the terms "good cause" has to be understand in its proper sprit and philosophy and purpose, regard being had to the facts that the terms is basically elastic and is to be applied in a proper perspective in liberal and pragmatic justice oriented and not pedantic approach has to

be opted while considering the reasons offered to explain the "good cause".

In the instant case, the learned court below has recorded no findings as regards cause shown by the petitioners for their non- appearance on the date fixed for hearing. The entire language used by the learned court below shows the penal approach against the defendants as there was no question of any substantial delay caused in the suit. In absence of proper service of notice/summons and knowledge about the hearing of the suit, the defendant could not appear. They have been held guilt of deemed service of summons and the door of justice has been shut against them at the very initial stage of the proceeding. There was no irreparable loss or injury to the plaintiff due to contest of the suit on merits and they might have been compensated in terms of money as per the provision of Order 9 rule 7 CPC.

10. The learned court below without appreciating the provisions of Order 9 Rule 7 CPC which categorically provide for recalling ex-parte order subject to payment of some costs or otherwise to meet the ends of justice rejected the application of the petitioners. Hence, the impugned order cannot be justified under law which is based upon improper exercise of discretion vested in the court and devoid of any sound reasons.

11. In view of the aforesaid discussions and reasons, I find that the impugned order is not legally sustainable as it suffers from non- application of mind towards provision under Order 9 Rule 7 CPC and proper appreciation of the grounds taken by the defendants/petitioners, hence, hereby set aside and this petition is allowed subject to the payment of cost of Rs. 10,000/- (Ten thousand only) to the respondent no. 1/plaintiff.

12. The petitioners are at liberty to file their written statement within two months from the date of receipt this order in court below. The learned trial court is also directed to expedite the trial.

(Pradeep Kumar Srivastava, J.)

Umesh/-A.F.R.