Rajasthan High Court

Yusuf Hussain @ Guddu S/O Tafazzul ... vs Smt. Sabra Begum W/O Tafazzul ... on 14 November, 2022

Bench: Birendra Kumar

                                                                   REPORTABLE

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 512/2020

Yusuf Hussain @ Guddu S/o Tafazzul Hussain Zaidi, R/o House
No. 4037, Under Naharwada School, Cheete Walon Ka Mohalla,
Jagannath Shah Ka Khurra, Chaukri Ramchandra Ji, Jaipur (Raj)
                                                                   ----Appellant
                                 Versus


1.    Smt. Sabra Begum W/o Tafazzul Hussain Zaidi, R/o House
      No. 4037, Under Naharwada School, Cheete Walon Ka
      Mohalla, Jagannath Shah Ka Khurra, Chaukri Ramchandra
      Ji, Jaipur (Raj) R/o Chaudhary Hospital, Housing Board,
      Eidgah, Delhi Bypass, Jaipur
2.    Tarannu Bano @ Kahkasha D/o Tafazzul Haussain Zaidi,
      R/o House No. 4037, Under Naharwada School, Cheete
      Walon Ka Mohalla, Jagannath Shah Ka Khurra, Chaukri
      Ramchandra Ji, Jaipur (Raj) R/o Chaudhary Hospital,
      Housing Board, Eidgah, Delhi Bypass, Jaipur
3.    Tajammul Hussain S/o Tafazzul Hussain Zaidi, R/o House
      No. 4037, Under Naharwada School, Cheete Walon Ka
      Mohalla, Jagannath Shah Ka Khurra, Chaukri Ramchandra
      Ji, Jaipur (Raj) R/o Chaudhary Hospital, Housing Board,
      Eidgah, Delhi Bypass, Jaipur
4.    Smt. Khurshid D/o Tafazzul Hussain Zaidi, R/o Nauganwa
      Sadat,   District     Muradabad           (U.P.)        At   Present   R/o
      Chaudhary Hospital, Housing Board, Eidgah Delhi Bypass,
      Jaipur
5.    Smt. Kishwar D/o Tafazzul Hussain Zaidi, R/o Saeed
      Nagar, Mohalla Tejliyan, Agra (U.P.) At Present R/o
      Chaudhary Hospital, Housing Board, Eidgah Delhi Bypass,
      Jaipur
6.    Nighat Zaidi D/o Tafazzul Hussain Zaidi, Sillochikam, Bas
      Badanpura, Jaipur
7.    Nusrat Jahan D/o Tafazzul Hussain Zaidi, R/o Chaudhary
      Hospital, Housing Board, Eidgah Delhi Bypass, Jaipur
8.    Afsar Zaidi D/o Tafazzul Hussain Zaidi, Presently Residing
      At Chaudhary Hospital, Housing Board, Eidgah Delhi

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        Bypass, Jaipur
                                                                      ----Respondents

For Appellant(s) : Mr. Gaurav Sharma Saraswat For Respondent(s) : Mr. Manoj Kumar Bhardwaj

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment

14/11/2022

1. This is an appeal under Order 43 Rule 1 (d) of the Code of

Civil Procedure against refusal of the prayer of the appellant to set

aside ex parte decree in exercise of powers under Rule 13 of Order

IX CPC by order dated 14.10.2019 passed in Civil Misc. Application

No. 56/2013 (121/2014).

2. A suit for partition of house standing on Plot No. 4037 was

going on between the parties. On 26.2.2009, an ex parte

preliminary decree was passed in the suit and on 18.1.2012, final

decree was also drawn ex parte. The appellant who was

defendant in the suit had already appeared in the suit

proceedings, however according to appellant, he was prevented by

sufficient cause from not appearing when the suit was called on

for hearing.

3. The impugned order would reveal that the learned trial Judge

mainly relined on the material to support proper service of notice

on the defendant appellant and knowledge of the defendant

appellant regarding proceedings of the partition suit. Rule 13 of

Order IX CPC reads as follows:

13. Setting aside decree ex parte against defendant.

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he

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satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall m-ake an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

(Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.)"

4. Thus, ex parte decree passed against the defendant

appellant might have been interfered with by the court concerned

not only for the reason that the court was satisfied that the

summons was not duly served rather even on the ground that the

appellant was prevented by any sufficient cause from appearing

when the suit was called on for hearing.

5. Mr. Gaurav Sharma Saraswat, learned counsel for the

appellant contends that son of the appellant was suffering from

60% of muscular dystrophy which would be evident from the

certificate dated 4.10.2004 issued by the Government of

Rajasthan and produced before the court below as Exhibit-1.

Taranum Bano, one of the plaintiffs in the suit has admitted in her

cross-examination in the proceedings under O.IX R.13 CPC that

when the suit was filed, son of the appellant was a disabled person

from his lower limbs due to injury caused by fall from the roof.

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The parents of the disabled person including his grand-mother

were engaged in the treatment of disabled person. It is not

denied on behalf of the respondents that the son of the appellant

died on 6.2.2013 thereafter according to the appellant, the

appellant was in depression and only in June, 2013 he came to

know that ex parte judgment and decree was passed in the suit.

Soon thereafter the application under O.IX R.13 CPC was filed.

6. The cause disclosed by the appellant has not been denied by

the respondents. However, Mr. Manoj Kumar Bhardwaj, learned

counsel for the respondents has referred to the material on record

especially, the report of the Advocate-Commissioner at the time of

preparation of final decree stating therein that the appellant had

participated in the proceedings conducted by the Commissioner.

7. Learned counsel for the respondents further contends that

the provisions of O.IX R.13 CPC are to protect the bonafide seeker

of justice and not to allow deliberate evader to abuse the process

of law. Learned counsel has relied on the judgment of the Hon'ble

Supreme Court in Parimal Vs. Veena @ Bharti reported in

(2011) 3 SCC 545. In Parimal's case (supra), the Hon'ble

Supreme Court considered the provisions of O.IX R.13 CPC and

observed as follows:

"13. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much 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 view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a

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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: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459)

14. In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR 1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

15. While deciding whether there is a 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 & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).

16. In order to determine the application under Order IX, Rule 13 CPC, the test 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 strait-jacket formula of universal application."

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8. Learned counsel for the appellant strenuously relied on the

judgment of this Court in the case of Jagidsh Prasad Swami Vs.

Ramji Lal Joshi, reported in RLW 2007 (3) Raj. 1970. In

Jagdish Prasad Swami's case (supra), the Court stated the law as

follows:

"7. The function of the courts and reason for creation of the Judicial system is to do justice to the parties. Thus, by the very raison d'etre, the courts are expected to be liberal in spirit and not pedantic in their approach. Although, Order 9 of the Code bestows sufficient power to deny the defendant an opportunity of hearing, but such a power should not be used mechanically or at the drop of the head. Since exercise of such a power infringes on the constitutional right of being heard, since it also infringes on the principles of natural justice, such a power should be exercised in the rarest of the rare case. Repeatedly, it has come to the notice of this Court that the door is being shut on the defendant on the ground that the defendant has approached the Court beyond the period of limitation or ostensibly- on the ground that the summons were served. While judging the sufficiency of the reasons for the non-appearance of the defendant, the court should be sensitive to the harsh reality of this country. The illiterate and the poor litigant approaches the court for justice. The defendant approaches the court with the hope that the will be given ample opportunity to defend his case. At times, the defendant is assured by the counsel that he will be informed about the progress of the court. But, the counsel falls to adhere to his promise. At times, the counsel pleads "no instructions", but the defendant has no knowledge of the counsel's pleading "no instructions" before the court. At times, summons are said to be served upon the defendant, but no cogent evidence is produced to buttress such a claim. At times, the service of summons is presumed on weak evidence. At times, cases are transferred from one court to another without any information to the litigant, who may be residing miles away from the court. In such circumstances, the court should be circumspect in dismissing the application under Order 9 Rule 13 of the Code. For, defendant is being ousted from the court for no fault on his own. The illiterate litigant is hardly aware of the intricacies of the legal procedure. The illiterate litigant instinctively and in good faith relies on the assurance of the counsel and hopes that the court will be vigilant about his interests.

Therefore, while dealing with an application under Order 9 Rule 13 of the Code, the court should not only be liberal in its spirit but should also be sensitive to the reality in which the litigant is trying to survive in the system. A mechanical, a pedantic, a myopic attitude of the court

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tends to thrown the litigation out of the Court and tends to shut the doors of the court upon him. Such an procedure compels the defendant to rush to this Court and this Court is unnecessarily being flooded by such litigation. In case the trial Courts were to be more sensitive to invoke its power under Order 9 Rule 13 of the Code, such needless litigation coming to this Court can be stopped.

11. In case N. Balakrishnan v. M. Krishnamurthy , the Hon'ble Supreme Court had clearly held that the court should lean towards giving opportunity of hearing to the defendant. Similarly, in the case of Vegepro Foods & Feeds Limited v. Jagannath Shreelal & Sons SBCMA No. 338/2001, decided on 21st August, 2006, this Court had held as under-

"Every person has a right to be heard. Such a right not only flows out of the principle of natural justice, but also eminents from Article 21 of the Constitution of India. The right of hearing is an integral part of the right to life and right to personal liberty. Such a right can only be deprived by a procedure established by the law. Under Order 9 Rule 6 of the Code, where the plaintiff appears and defendant does not appear when the suit is called for hearing and if it is proved that the summons were duly served, the court has the power to hear the case ex- parte. Thus, in case the defendant does not appear after receiving the summons, the court is entitled to proceed ex-parte against him. According to Order 9 Rule 7 of the Code in case the defendant, for his previous non-appearance, shows good cause, then the right to contest the suit may be restored. In case, an exparte decree has been passed against the defendant under Order 9 Rule 13 of the Code, a right has been given to the defendant to seek setting aside of the ex-parte decree provided sufficient cause for his absence is placed before the court. The court is further empowered to impose cost as it thinks fit before setting aside the ex-parte decree. While setting aside an ex-parte decree, the court has to balance the conflicting interest of the defendant as he has a right to be heard, and to the plaintiff who has a right to claim that the case has been finally decided in his favour and a finality has to be attached to the said judgment and decree. Since an onerous responsibility has been imposed on the court, the court should not dismiss an application under Order 9 Rule 13 of the Code, in a mechanical manner. The court should be sensitive to the right of the defendant, to his social and educational background to be able to understand the intricacies of the legal procedure, to his conduct after passing of the decree. In case, the court has reasons to believe that the defendant has been avoiding the proceedings intentionally, or he has been

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lethargic in defending his case, or there has been an inordinate delay in submitting an application under Order 9 Rule 13 of the Code, then the Court would be justified in dismissing the application under the said order. However, in cases where the litigant is poor and illiterate, where he is unaware of the complexity of the judicial process, where he has been assured by the advocate that he will be informed, but no such information was ever sent, or where he has been vigilant to immediately approach the court after coming to know about the ex-parte decree, in such cases, the court should be liberal enough to set aside the ex-parte decree. The provisions for imposing a cost upon the defendant, in order to balance the interest of the plaintiff, should also be invoked by the court. The situations enumerated above are, of course, merely illustrative and not exhaustive of the situations. Each case, certainly, has to be decided on the peculiar facts and circumstances of that case, but considering the fact that the right of hearing evolves from the principle of natural justice and originates from Article 21 of the Constitution of India, a liberal spirit should be exercised by the trial Court. In case the trial Court is satisfied that the interest the plaintiff should be protected, it is empowered to impose a cost, even an exemplary cost on the defendant. Such a power should be exercised in appropriate cases. A narrow exercise of the powers under Order 9 Rule 13 of the Code is flooding the High Court. Since it is a matter which can be decided by the Subordinate Judiciary, the tide of litigation coming to the High Court against the orders rejection needs to be stemmed by all concerned."

9. The case on hand does not show that the appellant remained

inactive. Whenever the appellant was free, he participated in the

proceedings which would be evident from the report of the

Advocate Commissioner however for a long period, the appellant

was engaged in the treatment of his son who died subsequently in

2013. Therefore, it cannot be argued that the appellant had no

sufficient and adequate reason for not appearing before the Court.

There is no evidence that on the date the ex parte decrees were

passed, appellant was roaming in the court premises or was at his

home to say that he was not inclined to attend the court

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proceedings. The reason of absence due to long treatment of