Pramod vs Suresh
2023 Latest Caselaw 1301 MP

                             1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                         BEFORE
             HON'BLE SMT. JUSTICE ANJULI PALO
                 ON THE 23 rd OF JANUARY, 2023
                 CIVIL REVISION No. 397 of 2022

BETWEEN:-
PRAMOD S/O SURESH MALVIYA, AGED ABOUT 40
YEARS, OCCUPATION: AGRICULTURIST RESIDENT OF
VILLAGE BABRI TEHSIL REHTI DISTRICT SEHORE
PRESENTLY RESIDING AT BHILADIYA KALAN TEHSIL
SEONI MALWA DISTRICT HOSHANGABAD (MADHYA
PRADESH)

                                                   .....PETITIONER
(BY SHRI ASHISH SHROTI - ADVOCATE)

AND
1.    SURESH S/O RAMAUTAR, AGED ABOUT 65 YEARS,
      RESIDENTS OF VILLAGE BABRI TEHSIL REHTI
      DISTRICT SEHORE (MADHYA PRADESH)

2.    CHANDRA BHUSHAN S/O SURESH, AGED ABOUT
      33 YEARS, R/O VILLAGE BABRI, TEHSIL REHTI,
      DISTRICT SEHORE (MADHYA PRADESH)

3.    RAMJIVAN S/O SURESH, AGED ABOUT 31 YEARS,
      R/O VILLLAGE BABRI, TEHSIL REHTI, DISTRICT
      SEHORE (MADHYA PRADESH)

4.    SMT. SARITA @ BHURI W/O VINOD MALVIYA,
      AGED ABOUT 36 YEARS, R/O GADAMOD, TEHSIL
      RAHATGAON, DISTRICT HARDA (MADHYA
      PRADESH)

5.    SMT. SHANTIBAI W/O BHAWANI SHANKER
      MALVIYA R/O NEAR KALI MANDIR, GWALTOLI,
      HOSHANGABAD (MADHYA PRADESH)

6.    SMT. MADHU BAI W/O KODURAM MALVIYA R/O
      NEAR SHANKER MANDIR, HOSHANGABAD,
      DISTRICT HOSHANGABAD (MADHYA PRADESH)

7.    ANIL S/O MAHESH MALVIYA, AGED ABOUT 38
                              2
      YE A R S , R/O NEAR LAXMI MANDIR, GWAL
      NAGAR, CHHIPANER ROAD, HARDA, DISTRICT
      HARDA (MADHYA PRADESH)

8.    SUSHIL S/O MAHESH MALVIYA, AGED ABOUT 36
      YE A R S , R/O NEAR LAXMI MANDIR, GWAL
      NAGAR, CHHIPANER ROAD, HARDA, DISTRICT
      HARDA (MADHYA PRADESH)

9.    SUNIL S/O MAHESH MALVIYA, AGED ABOUT 32
      YE A R S , R/O NEAR LAXMI MANDIR, GWAL
      NAGAR, CHHIPANER ROAD, HARDA, DISTRICT
      HARDA (MADHYA PRADESH)

10.   STATE OF MADHYA PRADESH THROUGH
      COLLECTOR HARDA DISTRICT HARDA (MADHYA
      PRADESH)

                                                                 .....RESPONDENTS
(SHRI LALJI KUSHWAHA - ADVOCATE FOR RESPONDENT NO. 1 )

(SHRI B.K. VAISHYA - ADVOCATE FOR RESPONDENT NO.2)
_______________________________________________________________
                        Reserved on   :   02-01-2023
                      Pronounced on :   23-01-2023
_______________________________________________________________
      This petition having been heard and reserved for orders, coming on for
pronouncement this day, the Court pronounced the following:
                                      ORDER

This revision has been filed by the applicant/plaintiff against the order dated 12.1.2022 passed by Additional Judge to the Court of Civil Judge Class- I, Nasrullaganj, District Sehore in Misc. Judicial Case No. 1 of 2018 whereby the application filed by respondent No.1/defendant under Order 9 Rule 13, CPC has been allowed and ex-parte proceedings and decree dated 13.7.2017 has been set aside.

2. The facts of the case, in short, are that the applicant/plaintiff filed a suit for declaration of title, partition, possession and permanent injunction and also for compensation against defendants/non-applicants on 29.11.2016. The suit

was decreed ex-parte against the defendants vide judgment and decree dated 13.7.2017. The defendants/respondents filed an application under Order 9 Rule 13 of CPC in MJC No. 1 of 2018 for setting aside the ex-parte decree passed in C.S. No. 19-A of 2017, which was rejected vide order dated 14.5.2019. Being aggrieved thereby the defendants/respondents filed an appeal before Additional District Judge bearing M.A. No. 96 of 2019 (Suresh Vs. Pramod & others). Learned Additional District Judge vide order dated 13.2.2021 passed in the aforesaid appeal observed that the trial Court should first decide the application under Section 5 of the Limitation Act for condonation of delay whereupon the application for setting aside ex-parte decree would itself stand rejected and if the application is allowed, the application under Order 9 Rule 13 will be decided on merits after taking evidence of both the parties.

3. On remand, the trial Court considered the application for condonation o f delay and passed an order dated 12.3.2021 condoning the delay and fixed the case for evidence and after recording of evidence, the ex-parte decree was set aside vide impugned order dated 12.1.2022, hence this revision.

4. Learned counsel for the applicant submits that the order passed by the Court below is illegal. The Court below ought to have seen that non-applicant No. 1 was duly served with the summons of the suit and therefore, there was no reason for him not to appear on the date fixed. He proceeded ex-pare on

19.12.2016 and the ex-parte judgment and decree was passed on 13.7.2017. The Court below further erred in setting aside ex-parte judgment and decree even though it held that there was no plausible reason assigned for condonation of delay by non applicant No. 1. Hence, the impugned order passed by the Court below may be set aside and this revision may be allowed.

5. Learned counsel for the respondents have supported the impugned

order and submitted that no interference is required in this revision.

6. I have heard learned counsel for the parties. In an application filed under Order IX Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any "sufficient cause" from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for "sufficient cause"ÂÂ, the Court may set aside the ex- parte decree and restore the suit to its original position.

7. The Supreme Court in the case of N. Balakrishnan v. M.

​Krishnamurthy reported in (1998) 7 SCC 123 has observed that the rules of limitation are not meant to destroy the rights of the parties and has held as under:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts."

8. The Supreme Court in the case of B. Madhuri Goud v. B.

Damodar Reddy reported in (2012) 12 SCC 693 has observed that 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 the Supreme Court, it has been 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."

9. The Supreme Court in the case of A. Murugesan Vs. Jamuna Rani reported in (2019) 20 SCC 803 has held that when application is filed under Order 9 Rule 13, CPC, only aspect required to be considered is whether any sufficient cause is shown by defendant for his absence when matter was called out. It has been further held that 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 the erring party. The Supreme Court has further observed that expression "sufficient cause" has to be construed as elastic expression for which no hard-and-fast rules can be prescribed. Considering facts and circumstances of each case, Courts have wide discretion in deciding sufficient cause. Expression "sufficient cause" refers to date on which absence was made ground to proceed ex parte and it cannot be stretched to rely upon circumstances anterior in time. If "sufficient cause" is made out for non- appearance on fixed date for hearing when ex parte proceedings initiated against defendant, he cannot be penalised for his previous negligence which had been overlooked and condoned earlier. When application under Order 9 Rule 13 filed immediately and within statutory time, normally discretion is exercised in favour

of defendant if absence was not malafide or intention. Other side can be compensated by adequate costs and litigation to be decided on merits.

10. The Supreme Court in the case of Deputy Commissioner of Police and another Vs. Neelam Rani and others reported in 2022 SCC OnLine Del 3371 referring the decision of A. Murugesan (supra) has taken similar view

11. In the case in hand, the applicant/plaintiff filed a suit for declaration of title, partition, possession and permanent injunction and also for compensation against defendants/non-applicants on 29.11.2016. The suit was decreed ex-parte against the defendants vide judgment and decree dated 13.7.2017. The defendants/respondents filed an application MJC No. 1 of 2018 under Order 9 Rule 13 of CPC for setting aside the ex-parte decree passed in C.S. No. 19-A of 2017, which was rejected vide order dated 14.5.2019. Being aggrieved thereby the defendants/respondents filed an appeal before Additional District Judge bearing M.A. No. 96 of 2019 (Suresh Vs. Pramod & others).

The learned Additional District Judge vide order dated 13.2.2021 passed in the aforesaid appeal observed that the trial Court should first decide the application under Section 5 of the Limitation Act for condonation of delay whereupon the application for setting aside ex-parte decree would itself stand rejected and if the application is allowed, the application under Order 9 Rule 13 will be decided on merits after taking evidence of both the parties. On remand, the trial Court considered the application for condonation of delay and passed an order dated 12.3.2021 condoning the delay and fixed the case for evidence and after recording of evidence, the ex-parte decree was set aside vide impugned order dated 12.1.2022.

12. From the perusal of the application filed under Order 9 Rule 13 CPC filed by the defendants/respondents and also the reasons assigned by the Court below in the impugned order dated 12.1.2022 to set aside the ex-parte decree, the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as "sufficient cause"ÂÂ. The suit was filed for declaration of title, partition, possession and permanent injunction and also for compensation against defendants/non-applicants, hence, in the considered opinion of this Court, the trial Court has not committed any error while passing the impugned order and setting aside the ex-parte decree. I do not find any ground to make interference in the impugned order.

13. The revision, being devoid of merit, is hereby dismissed.

(SMT. ANJULI PALO) JUDGE PB

PRADYUMNA BARVE 2023.01.20 07:55:38 +05'30'