HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 18 Case :- CIVIL REVISION No. - 6 of 2006 Revisionist :- [ENTITY] & 14 Ors. Opposite Party :- Smt. [ENTITY] & Anr. Counsel for Revisionist :- [ENTITY] Counsel for Opposite Party :- [ENTITY],[ENTITY] Hon'ble [ENTITY],J.
Heard Sri [ENTITY], learned counsel for revisionists, Sri [ENTITY], learned counsel for respondents and perused the record.
Undisputed facts of the present case are that the revisionists-plaintiffs filed a suit for permanent injunction registered as [CASE NUMBER] in the Court of Civil Judge (Sr. Div.), Lucknow, thereafter an application has been moved with a prayer to proceed ex-parte against the defendant under [SECTION] [ACT], allowed by order dated 07.03.2005.
On 10.11.2015, defendant-respondent moved an application on 10.11.2005 for recall of the order dated 07.03.2005 to which objection has been filed by the revisionists-plaintiffs, allowed by order dated 23.12.2005 with a cost of Rs. 50/- under challenge in the present civil revision.
Sri [ENTITY], learned counsel for revisionists while challenging the impugned order submits that no sufficient reason/good cause has been shown by the defendant for his non-appearance in the matter in question, so, there is no justification or reason on the part of court below to pass the impugned order dated 23.12.2005 recalling the order dated 07.03.2005. In support of his argument he has placed reliance on the following judgments :-
1. [PRECEDENT].
2. [PRECEDENT].
3. [PRECEDENT].
Accordingly, he submits that the impugned order dated 23.12.2005 being contrary to law, liable to be set aside.
Sri [ENTITY], learned counsel for respondents-defendants while supporting the impugned order submits that after takint into consideration the cause shown by the defendant for non-appearing on the date when the suit was fixed and order dated 07.03.2005 has been passed to proceed ex-parte against him, the court below has allowed the application for recall of the said order by an order dated 23.12.2005 with a cost of Rs. 50/-, hence, there is no illegality or infirmity in the impugned order, accordingly, present revision liable to be dismissed. In support of his argument he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of [PRECEDENT], [PRECEDENT], [PRECEDENT].
I have heard learned counsel for parties and gone through the record.
In order to decide the controversy involved in the present case, it will be appropriate to go through the relevant provisions as provided under [SECTION] [ACT] and [SECTION] [ACT].
"[SECTION]
6. Procedure when only plaintiff appears (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then
(a) When summons duly served if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.
(b) When summons not duly served if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2)Where it is owing to the plaintiffs' default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. "
[SECTION]:-
Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance.
The application under [SECTION] [ACT] as it is evident from the reading of the aforesaid Rule, can be filed at or before the next date fixed for hearing. In the instant case admittedly the application under [SECTION] [ACT] was filed by the petitioners on 06.08.94. It was the date after the next date fixed under [SECTION]
While incorporating the provisions of [SECTION] [ACT]Hon'ble the Apex Court in the case of [PRECEDENT], has held as under:-
" We have seen that if the defendant does not appear at the first hearing, the Court can proceed ex parte, which means that it can proceeded without a written statement; and [SECTION] makes it clear that unless good cause is shown the defendant cannot be related to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written statement should have been put in, the consequences, entailed by [SECTION] must be suffered.
What those consequences, should be in a given case is for the Court, in the exercise of its judicial discretion, to determine. No hard and fast rule can be laid down. In some cases an order awarding costs to the plaintiff would meet the ends of justice : an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic action.
Now when we speak of the ends of justice, we mean justice not only to the defendant and to the other side but also to witnesses and others who may be inconvenienced. It is an unfortunate fact that the convenience of the witness is ordinarily lost sight of in this class of case and yet he is the one that deserves the greatest consideration. As a rule, he is not particularly interested in the dispute but he is vitally interested in his own affairs which he is compelled to abandon because a Court orders him to come to the assistance of one or other of the parties to a dispute. His own business has to suffer. He may have to leave has family and his affairs for days on end. He is usually out of pocket. Often he is a poor man living in an out of the way village and may have to trudge many weary miles on foot.
And when he gets there, there are no arrangements for him. He is not given accommodation; and when he reaches the Court, in most places there is no room in which he can wait. He has to loiter about in the verandahs or under the trees, shivering in the cold of winter and exposed to the heat of summer, wet and miserable in the rains : and then, after wasting hours and sometimes days for his turn, he is brusquely told that he must go back and come against another day. Justice strongly demands that this unfortunate section of the general public compelled to discharge public duties, usually at loss and inconvenience to themselves, should not be ignored in the overall picture of what will best serve the ends of justice and it may well be a sound exercise of discretion in a given case to refuse an adjournment and permit the plaintiff to examine the witnesses present and not allow the defendant to cross examine them, still less to adduce his own evidence. It all depends on the particular case.
But broadly speaking after all the various factors have been take into consideration and carefully weighed, the endeavour should be to avoid snap decisions and to afford litigants a real opportunity of fighting out their cases fairly and squarely. Costs will be adequate compensation in many cases and in others the Court has almost unlimited discretion about the terms it can impose provided always the discretion is judicially exercised and is not arbitrary. "
In the case of [PRECEDENT], this Court after placing reliance on the judgment given by Hon'ble the Apex Court in the case of [ENTITY] Vs. Mohindra kumar and others, [PRECEDENT], held as under:-
"Obviously this rule would apply where the hearing of the suit ex parte has been adjourned. Where the hearing has not been adjourned, this rule will not be attracted. Pronouncement of judgment is not a part of the hearing of the suit. In the present case the entire hearing had concluded on 15-2-1985 and only judgment remained to be pronounced. As such, the defendant's application under [SECTION] was misconceived and was rightly rejected by the Court below. Once it is held that the application was not maintainable, the question of its being liberally dealt with does not arise at all. However, the authorities relied upon by the learned Counsel for submitting that the application should be liberally dealt with and the direction should be exercised in favour of hearing may be noticed. The first authority relied upon in this behalf is Ramji Das v. [ENTITY], 1978 ARC 496. This was a case under [SECTION], of the [ACT]. The next decision relied upon by the learned Counsel is The [PRECEDENT]. The learned Counsel did not invite my attention to any particular portion of this judgment. This was a case under the [ACT] and the propositions laid down by their Lordships primarily concerned the assessment of compensation. [ENTITY] v. Mohindra Singh, [PRECEDENT], is of no assistance to the applicant; rather it is against him. It was held in this case by their Lordships that inherent power of the Court cannot override the express provisions of the statute and that [SECTION] exhaust the whole gamut of situations that might arise owing to non-appearance of defendant during the course of trial. In this very case it is also laid down by their Lordships that where the hearing has been completed and the case has been fixed for pronouncement of judgment, [SECTION] is not attracted. The applicant did not apply under [SECTION] after the ex parte decree had been passed. In the circumstances, in view of the observations made by their Lordships the applicant had no right to claim setting aside of ex parte order. Smt. [ENTITY] v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597, has no application to the facts of the present case. In this case Smt. [ENTITY]'s passport was impounded without giving her opportunity of hearing. It was held by their Lordships of the Supreme Court that the proceeding for impounding, the passport was quasi-judicial in nature and before impounding the passport, opportunity of hearing was required to be given. In case on hand the applicant was served with the summons and he had put in appearance. He had notice of the date fixed for hearing and yet he failed to appear before the Court. It is not a case where opportunity of hearing was not given to the applicant. The opportunity of hearing was given but he did not avail of the same. In [PRECEDENT], it was held that the non-appearance of a counsel at the time of hearing on account of being busy elsewhere was a sufficient cause to entitle a party for restoration of the proceedings. This judgment has no application to the facts of the present case. In [PRECEDENT], a Division Bench of the Oudh Chief Court held that the discretion conferred under [SECTION] of the [ACT] should be liberally exercised. However, this authority could be of assistance to the assistant only if application under [SECTION] was maintainable. As held herein above, the application of the applicant was not maintainable. Accordingly, this authority is of no assistance to the applicant." (See also [PRECEDENT]).
In the case of [PRECEDENT], this Court has held as under:-
"Having gone through the judgment of the Court below and heard the learned Counsels for the parties I have not been able to find that any finding has been recorded by the Court below on the question of good cause for previous non-appearance of the defendant. There being no finding if good cause for previous non-appearance has been shown or established the Court below could not proceed with the passing of the order it had passed. When the law requires certain things to be done and conferred a power to doing that things in certain specified manner then by necessary implication what follows from it is that act has got to be done or that particular powers have got to be exercised in that manner alone and not otherwise, other modes of exercise of that power are closed, See [PRECEDENT].
And in the case of [PRECEDENT], it has been held as under:-
"Learned counsel for the petitioner in support of his submission referred to and relied upon the decision of the Apex Court in [ENTITY] u. Mohindra Kumar and others. [PRECEDENT], and the decision of this Court in [PRECEDENT]. In [ENTITY]'s case, the controversy Involved was as to whether an order passed in exercise of power under [SECTION]. [ACT] rejecting the application to set aside the order to proceed ex parte would operate as res Judicata. In the present case, the application under [SECTION] [ACT] was dismissed. The order of dismissing the said application has become final; but the petitioner again filed an application under [SECTION] [ACT] The question was as to whether the subsequent application was hit by principle of res judicata, The Courts below answered the said question in affirmative. In [ENTITY]'s case (supra), it was held that the order passed under [SECTION] [ACT] will not operate as res Judicata while dealing with an application under [SECTION], [ACT] In the present case, so far, the decree has not been passed ex parte. In case the suit is decreed, it would be open to the petitioner to file an application under [SECTION]. [ACT] Thus the decision in [ENTITY]'s cose has got no application to the facts of this case.
13. In [PRECEDENT]'s case (supra) aforesaid decision of the Supreme Court came to be considered, after taking into consideration the said decision, it was ruled as under by this Court :
"The learned counsel for the plaintiff-opposite parties submitted that after ex parte evidence had already been recorded, the defend ant-applicant had no right to make application under [SECTION], and, therefore, the said application was misconceived and had been rightly rejected by the Court below. For making this submission that the application, at the stage at which it was moved, was not maintainable, the learned counsel has relied upon [ENTITY] v. Mohindra Kumar and others, [PRECEDENT]. In this case, it was held by their Lordships that if the entirety of the hearing had been completed and only judgment remained to be pronounced. [SECTION] was not applicable".
"[ENTITY] v. Mohindra Stngh and others, [PRECEDENT], is of no assistance to the applicant ; rather it is against him. It was held in this case by their Lordships that Inherent power of the Court cannot override the express provisions of the statute and that [SECTION] exhaust the whole gamut of situations that might arise owing to non-appearance of defendant during the course of trial. In this very case it is also laid down by their Lordships that where the hearing has been completed and the case has been fixed for pronouncement of Judgment, [SECTION] is not attracted. The applicant did not apply under [SECTION] after the ex parte decree had been passed. In the circumstances. In view of the observations made by their Lordships the applicant had no right to claim setting aside of ex parte order".
14. In this case, as stated above, the trial court directed to proceed ex parte on 19.5.1994 and fixed for 15.7.1994 for hearing. On 15.7.1994 the plaintiff-respondent produced his evidence as ex parte. Thereafter the application under [SECTION]. [ACT] was filed on 6.8.1994 which was apparently not maintainable. The subsequent application filed by the petitioner again under [SECTION]. [ACT] on 11.8.1994 for the same relief i.e. for setting aside the order dated 15.7.1994, the said application was clearly barred by [SECTION], [ACT]"
Thus, the settled provisions of law in regard to provisions of [SECTION] [ACT] is to the affect that when defendant appears and assigns good cause for his previous non-appearance he may, upon such terms as the Court directs as to costs or otherwise, be allowed to be heard and answer to the suit as if he had appeared on the day, fixed for his appearance.
So far as the good cause and sufficient cause for non-appearance is concerned, the said words has been interpreted by the Hon'ble the Superme Court in the case of [PRECEDENT], as under:-
"Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.
The existence of such a principle has been doubted, and in any event was condemned as unworkable and impractical by [ENTITY], J. in [PRECEDENT]. He regarded it as an indeterminate term "liable to cause misconception" and his views were shared by [ENTITY], C. J. and [ENTITY], J. in Rajasthan: [PRECEDENT]. But that a law of natural justice exists in the sense that a party must be heard in a Court of law, or at any rate be afforded an opportunity to appear and defend himself, unless there is express provision to the contrary, is, we think, beyond dispute. See the observations of the Privy Council in [PRECEDENT], and especially in [PRECEDENT] where Lord [ENTITY] said "Do forms or procedure should ever be permitted to exclude the presentation of a litigant's defence". Also [ENTITY]'s case which we have just quoted.
In our opinion, [ENTITY], J. was right in [PRECEDENT] in holding that "One cardinal principle to be observed in trials by a Court obviously is that a party has a right to (1) A.I.R 1945 Sind 98,102 (2) A.I.R. 1952 Raj. 12,14.
(3) [CASE NUMBER].
(5) [CASE NUMBER].
appear and plead his cause on all occasions when that cause comes on for hearing", and that "It follows that a party should not be deprived of that right and in fact the Court has no option to refuse that right, unless the [ACT] deprives him of it".
Let us now examine that Code; and first, we will turn to the body of the Code. [SECTION] provides that "Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim".
And in the case of [PRECEDENT], after placing reliance on its earlier judgment in the case of [PRECEDENT], held as under:-
"23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under [SECTION] of the [ACT] and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
24. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."
Further, [SECTION] covers the case of a defendant who did not appear at all on the first hearing date and suit was adjourned after declaring hm ex parte, as also a defendant who absented after filing written statement. In both cases the ex - parte order only covered the period during which the defendant was actually absent and it did not act as a bar to his resuming appearance in the suit at the stage in which it then was if he appeared subsequently and wanted to put forward his evidence. The rule is applicable if the defendant wants the court to retrace its steps and to be allowed to file written statement. But if the defendant wants to proceed from the stage already reached, he will have an absolute right without obtaining the court's permission to take part in the proceeding.
Accordingly, [SECTION] cannot be read to mean that defendant cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared. He cannot be stopped from participating in the proceeding simply because he did not appear in the first or some other hearing. He will have to show good cause for his previous absence, only if he desires to be relegated back to the position in which he would have been put if he had appeared at the previous hearings, so that the proceedings in his absence could be reopened.
In the instant case when an application for recall of the ex-parte order dated 07.03.2005 has been moved to which objection has been filed by the revisionist after taking into consideration the cause which has been shown by the defendant-respondent, the trial court has come to the conclusion that there exists sufficient cause rather good reason has been shown by the defendant-respondent for his previous non-appearance in the proceeding of the suit, allowed by order dated 23.12.2005, thus, I do not find any illegality or infirmity in the same.
For the foregoing reason, the revision lacks merit and is dismissed.
Office is directed to send the lower court record to the court concerned.
Order Date :- 22.05.2015 Ravi/