Syed Chand Habeeb Died Per Lrs vs Md.Akbar And 9 Others
2021 Latest Caselaw 140 Tel

              THE HONOURABLE JUSTICE G. SRI DEVI

                         C.M.A. No. 538 of 2020

JUDGMENT:

This Civil Miscellaneous Appeal is filed under Order 43 Rule

1 of C.P.C., against the order, dated 09.01.2020, passed in I.A.No.549

of 2019 in O.S.No.670 of 2012 by the XI-Additional Chief Judge, City

Civil Court at Hyderabad, dismissing the petition filed by the

appellant, under Order IX Rule 13 of C.P.C., to set aside the ex parte

decree passed on 08.02.2019 in O.S.No.670 of 2012.

The appellant is the petitioner/2nd defendant and 1st

respondent herein is the plaintiff and the other respondents are

defendant Nos.3 to 11 before the trial Court.

Necessary facts for disposal of this Civil Miscellaneous

Appeal are as follows:

The 1st respondent/plaintiff filed a suit against the 1st

defendant, who is the husband of the appellant/2nd defendant,

seeking the following reliefs:-

1) to direct the defendant to deliver possession of the suit schedule property to the plaintiff;

2) to direct the defendant to receive the remaining balance amount of Rs.6,95,000/-;

3) consequently to restrain the defendant from creating any third party interest in the suit schedule property;

4) to grant costs of the suit and pass such other order or orders as the Court may deem fit and proper in the circumstances of the case.

During the pendency of the suit, Syed Chand Habeeb (1st

defendant), husband of the appellant, died on 23.01.2017 leaving

behind his two wives and eight children and they were added as

defendant Nos.2 to 11. The appellant, who is the wife of Syed

Chand Habeeb, made appearance by engaging her advocate. As the

appellant failed to file the written statement, an ex parte decree was

passed in the said suit on 08.02.2019. On coming to know about

passing of the said decree, the appellant filed I.A.No.549 of 2019

seeking to set aside the ex parte decree. It is stated in the affidavit

filed in support of the petition that the above suit was filed by

creating a false and baseless story against her husband and that the

entire contents of the plaint are concocted to usurp the suit schedule

property. It is further stated that she is a Green Card Holder of

United States of America since 27.03.2002 and the said card is valid

till 16.03.2022 and as there are changes in law, she had to leave

India for United States of America to complete the formalities as per

the American Laws and Rules and as such she could not appear

before the trial Court to contest the suit by filing written statement

and she came back to India only on 14.02.2019. It is further stated

that non-appearance of the 2nd defendant was neither wilful nor

wanton and that she has got a good case to contest the suit by filing

written statement and, therefore, prayed to set aside the ex parte

decree passed in the said suit.

A counter-affidavit has been filed by the 1st respondent/

plaintiff contending that the said petition was filed with false and

baseless grounds and that the appellant after her impleadment in

the suit got filed Vakalath through her counsel; that neither the

appellant nor her Counsel appeared before the Court to file

additional written statement; that the appellant has not explained

how she got knowledge about the passing of ex parte decree when

she went to America and why other defendants have not appeared

to defend the case; that the appellant did not make out a case by

showing substantial reasons and facts to set aside the ex parte decree

and that the husband of the appellant had received substantial

amount and got executed registered sale deed in favour of the

plaintiff and hence the ex parte decree cannot be set aside under any

circumstances. It is further stated that the appellant and other

defendants have no case at all and only to drag on the matter, the

present petition has been filed and that the appellant has failed to

explain as to how the present application is maintainable without

filing delay petition.

After considering rival contentions and the material available

on record, the trial Court dismissed the petition. Aggrieved by the

same, the 2nd defendant has preferred the present Civil

Miscellaneous Appeal.

Heard learned Counsel appearing for the appellant, learned

Counsel appearing for the 1st respondent/plaintiff and perused the

record. As per the cause title itself respondent Nos.2 to 10 are not

necessary parties.

Learned Counsel for the appellant/2nd defendant would

submit that the trial Court erred in dismissing the application filed

under Order IX Rule 13 of C.P.C., to set aside the ex parte decree,

dated 08.02.2019 notwithstanding the fact that the appellant was

able to show sufficient cause that she was not in India at the

relevant point of time when the suit was called for hearing. It is

further submitted that the trial Court erred in not accepting the

contention of the appellant that she went to U.S.A. and came back

to India on 14.02.2019 and that the endorsements dated 22.03.2018

and 18.01.2019 of the Immigration Authorities of the United States

of America admitting the appellant in the U.S. would sufficiently

prove that the appellant was not able to appear when the suit was

called for hearing due to her staying in U.S. It is also submitted

that the trial Court ought to have noticed that the words 'was

prevented by any sufficient cause from appearing' in Order IX Rule

13 of C.P.C. must be liberally construed to do complete justice

between the parties and enable the parties to contest the case on

merits particularly when the consequence of ex parte decree would

dispossess the appellant and cause irreparable injury and hardship.

It is further submitted that the trial Court ignored the settled

principle of law that while dealing with an application under Order

IX Rule 13 of C.P.C., the Court has to take liberal view as ordinary

litigant should not be denied hearing on merits unless something

akin to gross negligence or misconduct in conducting proceedings

and that the trial Court ought to have seen that when substantial

justice and technical considerations are pitted against each other,

the cause of substantial justice deserves to be preferred and the

Courts may in the larger interests of administration of justice to

excuse or overlook a mere irregularity or a trivial breach of law for

doing real and substantial justice to the parties and pass orders

which will serve the interest of justice best and that the trial Court

ought to have noticed that in the case of present nature when the

suit is pending for a long time and the appellant has come on

record only as a result of her husband's death, justice would be met

if ex parte decree is set aside and the case is decided on merits. In

support of his arguments, he relied upon the following judgments

of the Apex Court as well as this Court.

1. G.P.Srivastava v. R.K.Raizada and others1

2. Yelka Ram Reddy and others v. Kancharla Indira and others2

Learned Counsel for the 1st respondent/plaintiff would

submit that the appellant had failed to appear before the trial Court

at the time of hearing of the suit and also failed to show the

sufficient cause for setting aside the ex parte decree and as such the

(2000) 3 SCC 54

(2004) 5 ALT 48 (S.B.)

trial Court has rightly dismissed the petition filed under Order IX

Rule 13 of C.P.C. In support of his contentioinis, he relied upon the

following judgments.

1. Rasiklal Manickchand Dhariwal and another v. M.S.S. food Products3

2. Parimal v. Veena4

3. Gangina Veera Venkamma v. M.Venkataramayya5

4. N.P.Siddaiah v. M/s. K.Gopal and sons6 and

5. Chigurupalli Satyanarayana v. The Amadalavalasa Co- operative Agricultural Industrial Society Limited7

Before proceeding further, it would be useful to refer to Order IX

Rule 13 of the CPC which 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 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 made 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."

In G.P.Srivastava v. R.K.Raizada and others (1 supra),

wherein the Apex Court held as under:

2012 AIR SCW 1101

AIR 2011 SC 1150

AIR 1981 AP 199

AIR 1985 Karnataka 175

AIR 1975 AP 196

"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 the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a 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 were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide 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."

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. In order to determine the application under

Order 9, 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.

It is well settled that the words "sufficient cause" have got to

be construed with regard to the facts and circumstances of each

case. "What is" or "what is not" sufficient cause for non-appearance

is a question of fact depending upon varied and special

circumstances of each case. The words "sufficient cause" are to be

liberally construed. For setting aside the ex parte decree passed, the

Defendant has to only show cause for his absence on the day when

the exparte decree was passed. The Defendant is not required to

show cause for his absence on all previous dates of hearing though

the conduct may be a relevant factor to be taken note of.

In the instant case, it is not in dispute that the suit was

initially filed against the husband of the appellant, who died on

23.01.2017, leaving behind the appellant and respondent Nos.2 to 10

herein as his legal heirs and on the Memo filed by the Counsel to

that effect notices were issued to them and the appellant appeared

before the Court. The said suit was decreed ex parte on 08.02.2019.

As per the endorsement made at page No.6 of the passport of the

appellant, she went to America on 22.03.2018 and came back to

India only on 14.02.2019. That apart, the appellant is the Green

Card Holder of United States of America, which is valid from

27.03.2002 to 16.03.2022. It is the case of the petitioner that due to

changes in law, she had to leave India for United States of America

to complete the formalities as per the American Laws and Rules.

The trial Court has adopted a very narrow approach in dealing

with a matter pertaining to the recovery of possession despite the

fact that the appellant had put a reasonable defence and had

approached the Court for setting aside the ex parte decree,

admittedly, within the statutory period. Even if the appellant was

found to be negligent, the other side could have been compensated

by costs and the ex parte decree could have been set aside on such

other terms and conditions as were deemed proper by the trial

Court. The ends of justice can be met only if the appellant is

allowed opportunity to prove her case on merits within a

reasonable time.

For the aforesaid reasons, the Civil Miscellaneous Appeal is

allowed by setting aside the order, dated 09.01.2020 passed in

I.A.No.549 of 2019 in O.S.No.670 of 2012 by the XI-Additional Chief

Judge, City Civil Court at Hyderabad and accordingly, the ex parte

decree passed against the appellant and other defendants on

08.02.2019 in O.S.No.670 of 2012 is hereby set aside on payment of

costs of Rs.10,000/- to the other side. The trial Court is directed to

dispose of the suit after affording an opportunity to both the

parties, as early as possible, preferably, within a period of six

months from the date of receipt of a copy of this order.

Miscellaneous petitions, if any, pending, shall stand closed.

_____________________ JUSTICE G.SRI DEVI

22.01.2021 Gsn/gkv