M/S Sasumorov Enterprises Pvt. ... vs M/S Svs Buildcon Pvt. Ltd.
2022 Latest Caselaw 5516 MP

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                                            CIVIL REVISION No. 621 of 2019

       IN THE HIGH COURT OF MADHYA PRADESH
                     AT INDORE
                      BEFORE
              HON'BLE SHRI JUSTICE ANIL VERMA

                    ON THE 18th OF APRIL, 2022

               CIVIL REVISION No. 621 of 2019
 Between:-
 M/S SASUMOROV ENTERPRISES PVT. LTD THROUGH
 MANAGING DIRECTOR MOHAN SAHNI PLOT NO. ED 102, SCH.
 NO. 94, RING ROAD, INDORE - 452016 (MADHYA PRADESH)
                                                    .....PETITIONER
 (BY SHRI U.K. CHOUKSE, ADVOCATE )

 AND

 M/S SVS BUILDCON PVT. LTD. 56-58, COMMUNITY CENTER
 EAST OF KAILASH NEW DELHI (DELHI)
                                                .....RESPONDENTS
 (BY SHRI R.B. SINGH ADVOCATE )


     This petition coming on for admission this day, the court
passed the following:
                              ORDER

With consent of both the parties,the matter is heard finally. The petitioner has preferred this civil revision under section 115 of Civil Procedure Code, 1908, ( In short " the CPC") being aggrieved by the impugned order dated 21/08/2019 passed by the 7th Additional District Judge, Indore in MJC no 107/2019, whereby the application filed under order 9 Rule 7 of CPC has been allowed.

2 Brief facts of the case are that the petitioner/plaintiff

CIVIL REVISION No. 621 of 2019

filed a civil suit no.24-B/2016 for recovery of Rs. 1,01,42,391/- along with interest against the goods sold from the respondent. The suit filed by the petitioner was decreed by the 12 th Additional District Judge, Indore by the judgment and decree dated 24th March 2018 awarding the impugn of Rs. 80,02,262/- along with interest to the petitioner and also costs of the suit Rs. 1,50,065/- Thereafter the petitioner filed execution proceeding before the Court of Additional District Judge, first South East District, Saket District Court, Delhi. The respondent moved an application under order 9 Rule 13 of CPC along with an application under section 5 of the limitation act for setting aside the ex-parte decree dated 24/03/2018 on 23/03/2019 before the 7th ADJ, Indore. After hearing both the parties, learned trial Court, vide order dated 21/08/2019, allowed the application of the respondent and set aside the ex-parte decree with costs of Rs. 10,000/-; out of which, Rs.7,000.- is to be paid to the petitioner and removing amount of Rs.3000/- is to be deposited with Legal Aid Services by the respondent, therefore, the petitioner has preferred this revision before this Court.

3 Learned counsel for the petitioner has contended that the trial Court has acted in exercise of jurisdictional illegally and with material irregularities in allowing the application filed under order 9 Rule 13 of CPC. The trial Court has erred in not considering the oral and documentary evidence available on record. The trial Court has committed grave error by allowing the application of the respondent and the same is resulted into miss-

CIVIL REVISION No. 621 of 2019

carriage of justice. The said application was time barred and delay of two years had not been duly explained. The impugned order passed by the trial Court is bad in law and is not sustainable, hence, the petitioner prays that the impugned order be set aside and the respondent's application has filed under order 9 Rule 13 of CPC be dismissed .

4 Learned counsel for the respondent has opposed the prayer made by learned counsel for the petitioner by supporting the impugned order passed by the court below.

5 Both the parties were heard at length and perused the documents filed along with the present revision.

6 Contention of learned counsel for the petitioner is that the respondent although claimed that its Ex-Law Officer Shri Avinash Sxsena, who was looking after the present case, resigned after giving his resignation letter in the year 2017, but the respondent has not filed any such resignation letter. The respondent is a big company having its presence in all over the India, even though the respondent or its officers/officials did not make any endeavor on their own behalf to find out the status of the case at Indore for the period of two years. The respondent/company is negligent and they cannot save themselves by putting responsibility on their employee. In the present case, it appears that the respondent's Ex-Law Officer suddenly resigned and left the respondent/company without informing their counsel.

7. Hon'ble Supreme Court in the case of G.P.

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Shrivastaca Vs. R.K. Raizada and others reported in (2000)3 SCC 54 it has been held that "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 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 malafide 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. In the present case, the respondent has shown sufficient reasons for his non-appearance before the trial Court on the fixed

CIVIL REVISION No. 621 of 2019

date, therefore, this Court is of the considered opinion that the trial Court has rightly allowed the application filed under Order 9 Rule 13 of C.P.C filed on behalf of the respondent. The trial Court has applied correct principal of law in allowing the application under Order 9 Rule 13 of CPC filed by the respondent/Company. The impugned order passed by the trial Court is just and proper and hence I do not find any irregularities or infirmities in the impugned order dated 21/08/2019. No interference is warranted in present matter in exercise of power vested under section 115 of CPC.

9. Accordingly, present revision petition sans merit, is hereby dismissed.

CC as per rules.

(ANIL VERMA) JUDGE amol

Digitally signed by AMOL N MAHANAG Date: 2022.04.20 14:05:47 +05'30'