Rajasthan High Court
Ecgc Ltd vs M/S Dave Exports Thr Proprietor And Ors ... on 14 February, 2024
Author: Ashok Kumar Jain
Bench: Ashok Kumar Jain
[2024:RJ-JP:8338]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 82/2017
ECGC Limited Formerly Export Credit Guarantee Corporation Of
India Limited, Registered Office Express Towers 10Th Floor,
Nariman Point Mumbai, 400021 Government Of India
Enterprises, Through Its Branch Manager, IInd Floor, Anand
Bhawan, Sansar Chandra Road, Jaipur.
----Petitioner(Plaintiff)
Versus
1. M/s Dave Exports Through Proprietor Sharad Dave S/o
Late Shri Bhanwar Lal Dave, 437, Sector-11, Hiran Magri,
Udaipur (Raj.)
2. Punjab National Bank Limited Main Branch Panchsheel
Marg, Town Hall, Udaipur Through Branch Manager
----Respondents (Defendants)
For Petitioner(s) : Mr. Ashish Saksena
For Respondent(s) : Mr. B.C. Jain
Mr. Virendra Dave
Mr. Ritwick Dave
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
REPORTABLE
14/02/2024
1. Instant revision petition is preferred by the
petitioner/plaintiff/non-applicant aggrieved from order dated
06.01.2017 in Civil Misc. Application No. 192/2012 passed by
learned Additional District Judge No.6, Jaipur Metropolitan
whereby an application under Order IX Rule 13 read with Section
151 CPC filed by defendant no.1/respondent/applicant was
allowed and judgment and decree dated 03.01.2012 in civil suit
no. 271/2008 (168/2006), in favour of petitioner/plaintiff was set
aside.
[2024:RJ-JP:8338] (2 of 18) [CR-82/2017]
2. In brief, the facts of the matter inter alia are that a civil suit
filed by petitioner/plaintiff on 13.11.2006 for recovery of
₹37,05,172/- along with interest of 11% p.a. from 07.02.2004 till
institution of suit, and 12% p.a. after institution of suit, wherein
Defendant no.1 applicant has filed written statement but no
written statement was filed on behalf of respondent/defendant
no.2. On the basis of pleadings of the parties, four issues were
framed. After examination of three witnesses, the evidence of
plaintiff was closed on 07.07.2011 and thereafter the matter was
fixed for evidence of defendant on 04.08.2011. On 04.08.2011,
24.08.2011, 16.09.2011 and 16.10.2011 time was sought on
behalf of defendant/respondent no.1 for production of evidence.
On 13.10.2011 affidavit of Sharad Dave was filed on behalf of
defendant no.1 and the matter was fixed for cross-examination on
01.11.2011 but on 01.11.2011 the witness remained absent and
the matter was fixed for 25.11.2011. On 25.11.2011 the evidence
of defendant no.1 was closed and the matter was fixed for final
hearing on 09.12.2011. On 09.12.2011, counsel for
defendant/respondent no.1 pleaded no instruction and the trial
court heard the arguments of counsel for plaintiff and defendant
no.2 and fixed the matter for pronouncement of judgment on
22.12.2011. On 22.12.2011 the matter was deferred to
03.01.2012 and on 03.01.2012 the judgment was pronounced.
3. Aggrieved from aforesaid judgment and decree, an
application under Order IX Rule 13 read with Section 151 CPC was
filed by applicant/defendant/respondent no.1 on 18.09.2012,
[2024:RJ-JP:8338] (3 of 18) [CR-82/2017]
which was allowed on 06.01.2017 at a cost of ₹2500/- and as a
result the judgment and decree dated 03.01.2012 was set aside.
4. Learned counsel for petitioner/plaintiff while relying upon
grounds of instant petition submitted that defendant no.1
applicant has participated in whole trial till the stage of argument
but when the matter was taken-up for arguments, counsel for
defendant/respondent no.1 has deliberately pleaded no
instruction. He also submitted that before pleading no instruction,
a notice was said to be sent to the defendant no.1 for participation
in the proceedings by the then counsel but defendant/respondent
no.1 deliberately avoided the participation in the proceedings of
civil suit. He also submitted that after passing of the decree, an
application was moved for setting aside decree but after a delay,
as no application was moved by the defendant/respondent no.1
within prescribed 30 days. He relied upon judgment of Co-ordinate
Bench of this Court in case of Champalal through LRs Vs.
Kaushal Kumar and Ors. (S.B. Civil Appeal No. 5913/2011
dated 04.07.2016) to submit that Article 123 of Limitation Act is
applicable for calculation of limitation. He also submitted that to
move an application for condonation of delay in support of
application under Order IX Rule 13 of CPC, it is necessary for the
applicant/defendant to show sufficient cause. He also submitted
that the trial court has erred while considering the application of
condonation of delay under Section 5 of Limitation Act. He relied
upon judgment of Co-ordinate Bench of this Court and submitted
that without sufficient cause, no application can be allowed.
[2024:RJ-JP:8338] (4 of 18) [CR-82/2017]
5. He also relied upon judgment of Hon'ble Supreme Court in case
of Sunil Poddar and Ors. Vs. Union of India (2008) 2 SCC
326 and also judgments of Co-ordinate Bench of this Court in
cases of Gyan Chand Vs. Rajasthan Tractor Co. 2006 (1) CDR
788 (Raj.), Ladu Ram Vs. Smt. Gaytri Devi & Ors. 2004 (2)
CDR 1584 (Raj.), Chhitar Mal Saini Vs. Basanti & Anr. 2014
WLC (Raj.) UC 233, Madan Lal (D) & Ors. Vs. Prabhu Dayal
& Ors. 2009 (2) RLW 1760 (Raj.) and submitted that the trial
court has committed error while relying upon judgment of Hon'ble
Supreme Court in case of Malkiat Singh and Anr. Vs. Joginder
Singh & Ors. 1998(2) SCC 206 without considering the facts of
the matter. He also referred the cases of Deepak S. Vs. George
Phillip and Ors.: AIR 2007 Kerala 94, Lachman Dass Vs. FCI
(2007) 146 PLR 391 and Omprakash Rameshwar Patidar
Vs. Ekbal Hussain 1998 (1) MPLJ 349 and submitted that the
applicant/defendant was well-aware about the proceedings before
the trial court and at the fag end of the trial, he chooses not to
participate in the proceedings despite notice from his counsel
which clearly means that he had deliberately avoided the process
of law and in such circumstances, the Court acted in most liberal
manner, while allowing the application. He also submitted that if
any counsel has pleaded no instruction, it does not mean that the
Court should issue fresh notice to the defendant and the trial of
the suit should be defeated. He also submitted that there is no
rule under the CPC for issuance of any fresh notice after pleading
of no instruction by any counsel. He also relied upon judgment of
Co-ordinate Bench of this Court in case of Sogani Brothers Vs.
[2024:RJ-JP:8338] (5 of 18) [CR-82/2017]
M/s. Kuwait Airways Corp. 2009 (4) RLW 3608 (Raj.) to
submit that in case of setting aside of ex-parte decree certain
stringent conditions are required to be imposed so as to balance
the equity but the trial court in benevolent manner had allowed
the application under Order IX Rule 13 CPC, as if no notice was
served upon respondent/defendant no.1.
6. Aforesaid contentions were opposed by learned counsel for
respondent/defendant no.1 and submitted that due to some
emergency in the family of defendant, he could not appear before
the trial court on 25.11.2011. He also submitted that in his
petition under Order IX Rule 13 CPC specific averments were
made about the illness of his mother and also mental status of
defendant no.1, therefore, the Court after considering the material
on record has rightly allowed the application under Order IX Rule
13 of CPC. He also submitted that if no instruction pleaded by the
counsel of any party, then, it is mandatory for the Court to issue
fresh notice but in the instant case, the trial court had not issued
any notice to the respondent no.1/defendant to enable him to
participate in the proceedings. He further submitted that the trial
court has rightly allowed the application under Order IX Rule 13 of
CPC, in view of law settled by Hon'ble Supreme Court in case of
Malkiat Singh and Anr. (supra). He also submitted that if
proper liberty is not granted to the defendant then, the purpose
would frustrate, which will tantamount to denial of his rights.
7. Heard learned counsel for the parties and perused the record
and also considered the judgment of Hon'ble Supreme Court and
[2024:RJ-JP:8338] (6 of 18) [CR-82/2017]
Co-ordinate Bench of this Court and other High Courts as cited by
learned counsel for parties.
8. The fact which was explained hereinabove clearly indicated
that in a civil suit for recovery of money, a decree was passed in
favour of plaintiff/petitioner on 03.01.2012. The fact clearly
indicated that defendant no.1/applicant has participated in the
proceedings of the trial court till closure of evidence of both the
parties but when the matter was fixed for final hearing on
09.12.2011, counsel for respondent/defendant no.1 pleaded no
instruction.
A. The first question before us is the impact of no
instruction:
09. Sequence of important dates are as under:-
Sr.No. Important Particulars
Dates
i. 13.11.2006 A suit for recovery was filed by
plaintiff (Petitioner herein)
ii 11.04.2007 Vakalatnama on behalf of defendant/
respondent No.1 was filed.
iii 10.08.2007 Written Submissions filed by
defendant No.1.
iv 03.08.2010 Issues framed.
v 07.07.2011 Evidence of plaintiff closed.
vi 04.08.2011 First date for defendant evidence.
vii 24.08.2011 Adjournments for defendant
16.09.2011 evidence.
viii 13.10.2011 Affidavit of DW Sharad Dave filed by
counsel for defendant.
ix 01.11.2011 Adjournment for defendant evidence.
x 25.11.2011 Defendant evidence closed.
[2024:RJ-JP:8338] (7 of 18) [CR-82/2017]
xi 09.12.2011 'No Instruction' by counsel for
defendant No.1.
Arguments heard.
xii 22.12.2011 Adjournments.
xiii 03.01.2012 Judgment.
xiv 18.09.2012 Application under Order IX Rule 13
CPC by defendant/respondent No.1.
10. In case of Malkiat Singh and Anr. (supra), the fact of the
matter was that counsel for appellant pleaded no instruction and
no further notice was issued after no instruction. Hon'ble Supreme
Court, while considering the aforesaid situation has allowed the
application in the interest of justice. Hon'ble Supreme Court relied
upon judgment in case of Tahil Ram Issardas Sadarangani Vs.
Ramchand Issardas Sadarangani 1993 Supp (3) SCC 256,
wherein Hon'ble Supreme Court opined that when a counsel
withdrew from the case, a fresh notice for actual date of hearing
should have been sent to the parties in the interest of justice.
11. Aforesaid principle indicated that in the interest of justice,
Hon'ble Supreme Court has opined that notice can be issued to
the parties, in case of withdrawal of counsel by pleading no
instruction. One fact is quite clear that there is no provision under
the CPC or rule of practice that in case of no instruction by a
counsel, a notice is required to be issued to a party whose counsel
had withdrew from the case.
12. In case of Deepak S. Vs. George Phillip, (supra) a Division
Bench of Kerala High Court after considering the judgment of
Malkiat Singh and Anr. (supra), opined that the procedure for
[2024:RJ-JP:8338] (8 of 18) [CR-82/2017]
appearance of parties and consequences of their non-appearance
are detailed in Order IX of CPC and Order IX provides that when
neither party appears, the suit can be dismissed but in case
defendant does not appear when the suit is called for hearing, the
Court can hear the suit ex-parte. The Division Bench has further
discussed the scope of Order IX Rule 6, 7 and 13 after relying
upon judgment of Hon'ble Supreme Court in cases of Sangram
Vs. Election Tribunal Kotah AIR 1955 SC 425, Arjun Singh
Vs. Mohindra Kumar & Ors AIR 1964 SC 993, Rajni Kumar
Vs. Suresh Kumar Malhotra & Anr. AIR 2003 SC 1322, Raj
Kumar Vs. Sardari Lal 2004 AIR SCW 470 and observed that
there is no mandatory rule or rule of universal application for
issuance of fresh notice in case counsel reports no instruction.
13. In case of Lachman Dass Vs. Food Corporation of India
(supra), a Co-ordinate Bench of Punjab and Haryana High Court
observed that the mere fact that an advocate has pleaded no
instruction would not be sufficient to warrant issuance of fresh
notice to the client of such advocate and failure to issue such
notice would not warrant setting aside of proceedings initiated
thereafter.
14. Again, in case of Omprakash Rameshwar Patidar and Vs.
Ekbal Hussain S/o Noor Mohd. and Anr. (supra), a Co-
ordinate Bench of Madhya Pradesh High Court while relying upon
judgment of Hon'ble Supreme Court in case of The Managing
Director (MIG) Hindustan vs Ajit Prasad Tarway AIR 1973
SC 76 observed that liberal approach did not and could not mean
that erring applicants should have license to disappear or appear
[2024:RJ-JP:8338] (9 of 18) [CR-82/2017]
at will and to regulate the course of proceedings to suit their
comfort or convenience. If the Court adhere to mandate of law,
they cannot be criticized for acting without or in excess of
jurisdiction. The law and justice are not distant neighbours and
suiters cannot be expected to litigate without prospects of finality
in near future. After all "no instructions' were pleaded after
several years.
15. In the instant case, the fact clearly indicate that after
participating till trial was over, the counsel for defendant No.1 had
pleaded no instruction. The counsel had pleaded no instruction at
the stage of final arguments on 09.12.2011. On 09.12.2011, the
trial court has concluded the arguments. Herein, the fact of the
matter clearly indicated that six opportunities were granted to the
defendant/respondent no.1/applicant for production of his own
evidence but he failed to appear on six occasions till closure of his
evidence. The affidavit of defendant no.1 was filed by the counsel
for defendant and the Court has directed that the defendant must
be present on 01.11.2011 for cross-examination. On 01.11.2011
the trial court even granted one more opportunity for 25.11.2011
and ultimately on 25.11.2011 the evidence of defendant no.1 was
closed and the matter was posted for 09.12.2011. Thus, no
instruction was pleaded on 09.12.2011.
16. The proceedings of the trial court clearly indicated that
pleading of no instruction was after conclusion of the trial thus the
defendant was not prevented from participating in the trial rather
defendant no.1 has participated in the whole trial, therefore, the
judgment in case of Malkiat Singh and Anr. (supra), is not
[2024:RJ-JP:8338] (10 of 18) [CR-82/2017]
applicable in the instant case and the defendant no.1 was well-
aware about the trial.
17. Order IX of CPC deals with the appearance of the parties
before the Court on the date fixed for such appearance. It also
provides for the consequences when either party or both of them
do not appear. Rule 1 of Order IX CPC prescribes that the
party(ies) to the suit are required to attend the Court either in
person or by pleader(s). The Court can proceed ex-parte, in case
any of the party does not appear, which includes dismissal of suit
on non-appearance of plaintiff.
18. In case of Sangram Singh Vs. Election Tribunal (supra),
Hon'ble Supreme Court observed that in case of service of
summons is proved, the Court can proceed ex-parte against the
defendant and pass ex-parte judgment. A perusal of Order IX CPC
clearly indicated that after participation by any of the party in Civil
Suit, if his counsel fails to appear or pleads "no instructions", the
the Civil court would proceed ex-parte. In absence of Rule, it is
not mandatory either for any of Trial Court or for Appellate Court
to issue fresh notice for appearance. Thus, the trial court has not
committed any error in not issuing any notice of appearance to
defendant No.1, after his counsel pleaded 'no instruction" on
09.12.2011.
B. Now, comes the question of limitation to file application
under Order IX Rule 13 of CPC:
19. After passing of decree on 03.01.2012, an application under
Order IX Rule 13 was filed on 18.09.2012. Article 123 of the
Limitation Act, 1963 prescribes that in aforesaid circumstances,
[2024:RJ-JP:8338] (11 of 18) [CR-82/2017]
the application under Order IX Rule 13 ought to have been filed
within a period of thirty days but herein the application was filed
way beyond thirty days. The application indicated that defendant
no.1 came to know about passing of judgment and decree on
30.08.2012 and on 11.09.2012 he obtained the copy of the
judgment and decree.
20. In support of condonation of delay, an application under
Section 5 of Limitation Act was also filed. The trial court after
considering the fact that applicant/defendant no.1 was busy in
treatment of his mother though no document was filed in support
of claim of treatment of his mother but still allowed the application
under Section 5 of Limitation Act without considering the provision
of Section 5 of Limitation Act and also Article 123 of Limitation
Act.
21. Section 5 of the Limitation Act prescribes that any appeal or
revision or an application may be admitted after the prescribed
period, if the appellant or the petitioner satisfies the Court on
sufficient cause for not preferring appeal or revision of making
application within prescribed period.
22. In case of Collector, Land Acquisition, Anantnag Vs.
Katiji AIR 1987 SC 1353, Hon'ble Supreme Court laid down
following principles to consider application for condonation of
delay:-
1. Ordinarily a litigant does not stand to
benefit by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the
very threshold and cause of justice being
defeated. As against this when delay is
condoned the highest that can happen is that a
[2024:RJ-JP:8338] (12 of 18) [CR-82/2017]
cause would be decided on merits after hearing
the parties.
3. "Every days delay must be explained" does
not mean that a pedantic approach should be
made. Why not every hours delay. every
seconds delay ? The doctrine must be applied
in a rational common sense pragmatic manner
4. 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
because of a non-deliberate delay
5. There is no presumption that delay is
occasioned deliberately, or on account of
culpable negligence, or on account of mala
fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious risk
6. It must be grasped that judiciary is
respected not on account of its power to
legalize injustice on technical grounds but
because it is capable of removing injustice and
is expected to do so.
23. In case of Balwant Singh (dead) Vs. Jagdish Singh and
Ors. 2010 (8) SCC 685, Hon'ble Supreme Court while
considering Section 5 of Limitation Act has referred the judgment
in the case of Union of India Vs. Ram Charan AIR 1964 SC
215 and observed that the explained delay should be clearly
understood in contradistinction to inordinate unexplained delay.
Delay is just one of the ingredients which has to be considered by
the Court. In addition to this, the Court must also take into
account the conduct of the parties, bona fide reasons for
condonation of delay and whether such delay could easily be
avoided by the applicant acting with normal care and caution. The
statutory provisions mandate that applications for condonation of
delay and applications belatedly filed beyond the prescribed period
of limitation for bringing the legal representatives on record,
should be rejected unless sufficient cause is shown for
[2024:RJ-JP:8338] (13 of 18) [CR-82/2017]
condonation of delay. The larger benches as well as equi-benches
of Hon'ble Supreme Court have consistently followed these
principles and have either allowed or declined to condone the
delay in filing such applications. Thus, it is the requirement of law
that these applications cannot be allowed as a matter of right and
even in a routine manner. An applicant must essentially satisfy the
above stated stated ingredients; then alone the Court would be
inclined to condone the delay in the filing of such applications.
24. In support of application for condonation of delay, following
reasons were mentioned:-
(i) From 25.11.2011 to 01.12.2011, the mother of
defendant no.1 was ill and she was taken to Gujarat for
treatment.
(ii) From 02.12.2011 onwards the defendant No.1
suffering from mental health issue such as depression.
It is very important to note that not a single document was
filed in support of any of aforesaid reason, thus the claim was
made without support of any document.
25. Aforesaid provision of law clearly indicated that it was duty of
the trial court firstly to ascertain "sufficient cause", though
while ascertaining the sufficient cause, day to day explanation of
delay is not required but it has to ensure the bonafides of the
applicant who sought condonation of delay from the trial court. It
appears that the trial court without considering the law over the
point has adopted extra liberal approach in allowing application
under Section 5 of Limitation Act, therefore, in the instant case an
application under Order IX Rule 13 of CPC was filed after a
[2024:RJ-JP:8338] (14 of 18) [CR-82/2017]
substantial delay and no document in support of application for
condonation of delay under Section 5 of Limitation Act was filed,
therefore, the applicant/defendant no.1 was not entitled for any
condonation of delay and the trial court has committed serious
error while allowing the application under Section 5 of Limitation
Act. The application under Order IX Rule 13 CPC was barred by
law and was liable to be dismissed solely on the ground of delay.
C. Now comes the grounds of setting aside of decree
under Order IX Rule 13 of CPC:
26. The fact narrated hereinabove clearly indicated that six
opportunities were granted for recording the evidence of
defendant no.1. It was claimed that on 25.11.2011 the mother of
defendant no.1 was ill and he had to travel to Ahmedabad
(Gujarat) but after return from Gujarat on 01.12.2011 or
02.12.2011, he could contact his counsel to know about the next
date. No matter was placed on record to show that the defendant
no.1 made any effort to get information about next date of
hearing, which was scheduled on 09.12.2011. Further, the
judgment was passed on 03.01.2012 and from 02.12.2011
onwards, whether the defendant has contacted his counsel was
neither pleaded nor established from the record. Similarly, after
return from treatment of mother to Udaipur on 01.12.2011, the
applicant/defendant no.1 was allegedly suffering from mental
illness and depression but no document to that effect is filed on
record which indicated that the ground was concocted and
manipulated. Herein this case, the defendant was well-aware
about the pendency of a recovery suit against him and the
[2024:RJ-JP:8338] (15 of 18) [CR-82/2017]
proceedings clearly indicated that six opportunities were already
granted to him to led evidence, which indicated that the defendant
had not utilized the opportunities to submit his defence. The
defendant, a businessman was well-aware about the pendency of
civil suit and his claim of absence was not fortified from any of the
document on record, which indicated that defendant/respondent
no.1/applicant had not established any ground to attract provision
of Order IX Rule 13 CPC. Thus, the trial court without
understanding the facts of the case and misconstruing the legal
provisions, has allowed the petition under Order IX Rule 13 CPC in
most casual manner.
27. Rule 13 of Order IX CPC is reproduced as under:-
"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 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 make 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 plaintiffs claim.
Explanation - Where there has been an
appeal against a decree passed ex parte under this
rule, and the appeal has been disposal of on any
ground other than the ground that the appellant
has withdrawn the appeal, no application shall lie
under this rule of setting aside the ex parte
decree."
[2024:RJ-JP:8338] (16 of 18) [CR-82/2017]
28. In cases of Gyan Chand Vs. Raj Tractor Company
(supra), Ladu Ram Vs. Gyatri Devi (supra), Rajjo Vs. Satish
Kumar (supra), Chittar Mal Saini Vs. Basanti and Anr.
(supra) and Madan Lal Vs. Prabhu Dayal & Ors (supra), Co-
ordinate Benches of this Court has considered similar petitions on
the issue of sufficient cause and refused to set aside ex-parte
decree. Therefore, it is necessary for any applicant to show
sufficient cause for setting aside of ex-parte decree but herein no
sufficient cause was shown for setting aside of decree. In the case
of Sunil Poddar and Ors. Vs. Union Bank of India (supra),
Hon'ble Supreme Court has also considered the provision of Rule
13 of Order IX of CPC and held that the legal position under the
amended code is not whether the defendant was actually served
with summons in accordance with the procedure laid down and in
manner prescribed in Order V of Code but,
(i) Whether he had notice of the date of hearing of the suit
(ii) Whether he had sufficient time to appear and answer the claim
of the plaintiff.
Once these two conditions are satisfied and ex-parte decree
cannot be set aside even if it is established that there was
irregularity in the service of summons. If the Court is not
convinced that the defendant has otherwise knowledge of the
proceedings and he could have appeared and answered the
plaintiffs claim, he cannot put forward a ground of non-service of
summons for setting aside ex-parte decree passed against him by
invoking Rule 13 of Order IX of the Code.
[2024:RJ-JP:8338] (17 of 18) [CR-82/2017]
Aforesaid clearly indicated that herein the defendant no.1
was not only served the notice of the civil suit but he participated
till closure of the evidence of both the parties. At the time of final
argument no instruction was pleaded. A fact is also brought on
record that before pleading no instructions the counsel for
defendant no.1/applicant has served him a notice which was duly
received by defendant no.1. The approach of the Court must not
be so liberal so as to cause injustice with other party to the
proceeding. The Trial Courts are duty bound to adjudicate any
issue on the basis of law and rules. Herein no sufficient ground
was shown for non-production of evidence despite six
opportunities to defendant no.1. Further, material was already
available on record to decide the litigation on merits. Thus, there
was no ground whatsoever available for the defendant no.1 to
plead for setting aside of decree under Rule 13 of Order IX of CPC.
The invocation of provision under Rule 13 of Order IX is itself an
abuse of process of law.
29. The fact clearly indicated that on 25.11.2011 defendant
no.1/applicant went to Ahmedabad for treatment of his mother
but he returned on 26.11.2011 and till 01.12.2011 he was busy in
treatment of his mother at Udaipur only. Thereafter, no specific
incident or event was placed on record. Thus, neither any
averment nor any document to establish that from 02.12.2011
onwards the defendant no.1 was prevented by any sufficient cause
in participating the proceedings of the trial court, is available on
record, therefore, there was no sufficient cause before the trial
[2024:RJ-JP:8338] (18 of 18) [CR-82/2017]
court for setting aside the judgment and decree passed after full
trial in favour of petitioner/plaintiff.
30. The approach of the trial court is not appreciable in the
instant case, because while setting aside of money decree, some
conditions required to be imposed at the time of passing of the
order but herein this case, the trial court has simply allowed as if
it has allowed simple application like taking documents on record
or granting a liberty for evidence or filing of any written
statement.
31. In view of aforesaid, the petition is liable to be allowed and
the order dated 06.01.2017 on application under Order IX Rule 13
CPC is liable to be set aside.
32. As a result, the instant revision petition is hereby allowed
and the order dated 06.01.2017 is set aside. As a result, the
judgment and decree dated 03.01.2012 in CS NO. 271/2008
(168/2006) is hereby restored.
(ASHOK KUMAR JAIN),J
CHETNA BEHRANI /308
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