R.S.A. No. 831 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 831 of 2009 (O&M) Date of decision: 20.02.2009 Om Parkash ....Appellant Versus Jagdish Chander and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. S.N. Yadav, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decree dated 22.10.2007 and 5.11.2008 passed by the learned Courts below vide which the application filed by the applicant for setting aside ex parte decree dated 4.2.2006 stands dismissed. The plaintiff/respondent No. 1 brought a suit for specific performance to enforce an agreement to sell. Notice of the suit was issued, in which the defendant/appellant failed to appear and, therefore, was ordered to be proceeded against ex parte. In ex parte evidence, plaintiff/respondent No. 1 proved the agreement to sell and mortgage deed. In view of evidence on record, the suit was decreed on 4.2.2006. Defendant No. 1 filed an application on 3.3.2006 for setting aside ex parte decree on the ground that she had no knowledge of the judgment and decree, as she was not served in the case. It was also R.S.A. No. 831 of 2009 (O&M) -2- pleaded that the application for setting aside ex parte decree was being filed within time. The application was contested by the plaintiff/respondent. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the ex parte order dated 12.6.2004 and ex parte judgment and decree dated 4.2.2006 is liable to be set aside on the grounds pleaded in the application? OPA 2. Whether the application is within limitation of time? OPA 3. Relief.” In spite of availing three effective opportunities, including, the last one, the appellant/defendant No. 1 failed to lead any evidence in support of the application. though the onus to prove the grounds for setting aside ex parte decree was on the appellant/defendant No. 1. In view of the evidence on record, the learned trial Court recorded a finding that no sufficient ground for setting aside ex parte decree is made out, as the defendant/appellant was proved to have been duly served in the case. In appeal, the finding recorded by the learned trial Court stands affirmed. Consequently, the appeal against the judgment and decree also stands dismissed. The learned counsel for the appellant raised the following substantial question of law: - “Whether it is permissible for the Court to adopt hyper- technical approach to reject the application for setting aside ex parte decree?” In support of the substantial question of law, the learned counsel for the appellant contends that in the case in hand, the R.S.A. No. 831 of 2009 (O&M) -3- appellant had approached the Court within the limitation prescribed for setting aside ex parte decree and, therefore, the learned Courts below committed an error of law in rejecting the application by taking hyper- technical approach. The appellant, at best, could have been burdened with costs for setting aside ex parte decree. In support of the contention, the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in G.P. Srivastava Vs. R.K. Raizada and others, 2000(1) RCR (Rent) 238 wherein the Hon'ble Supreme Court has been pleased to lay down as under: - “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 erring party. Sifficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' from 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 R.S.A. No. 831 of 2009 (O&M) -4- defendant on the date fixed for hearing when ex-parte proceedings initiated against him, he cannot be penalised for his previous negligence when had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provded the absence was no 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. In the instant case, it is not disputed that the nephew of the counsel of the appellant had died in a road accident on the date of hearing and that the appellant himself was not at the station on account of his employment and illness. The mere fact of obtaining a certificate from a private doctor could not be made a basis for rejecting his claim of being sick. Both the Trial Court as also the High Court have adopted a very narrow and technical approach in dealing with a matter pertaining to the eviction of the appellant despite the fact that he 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 set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for abount 17 years. The ends of justice can be met only if the appellant- defendant is allowed opportunity to prove his case within a reasonable time.” Reliance has also been placed on the judgment of the Hon'ble Supreme Court in Sushil Kumar Sabharwal Vs. Gupreet Singh and others, 2002(1) RCR 602 (Rent) wherein the Hon'ble R.S.A. No. 831 of 2009 (O&M) -5- Supreme Court has been pleased to lay down as under: - “8. We find several infirmities and lapses on the part of the process server. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnessess available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process server to witness the proceedings and be party to the procedure of the service of summon but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt. Incidently, we may state that though the date of appearance was 23rd February, 1993 the summons is said to have been tendered on 22nd February, 1993, i.e. just a day before the date of hearing. 12. The provision contained in Order 9 Rule 6 of the C.P.C. is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the Court depending on the given situation. The three situations are: (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, when is relevant here, when it is proved that the summons was duly served, the Court may R.S.A. No. 831 of 2009 (O&M) -6- make an order that the suit be heard ex-parte. The provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being 'proved' that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard ex-parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring conscious application of mind on the part of the Court to satisfy itself on the service summons. Any default or causual approach on the part of the Court may result in a depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex-parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of hi. If only the Trial Court would have been conscious of its obligation cast on it by Order 8 Rule 6 of the C.P.C., the case would not have proceeded ex-parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation. 13. Be that as it may, we are satisfied that the summons was not served on the defendant-appellant. He did not have an opportunity of appearing in the Trial Court and the High Court have committed a serious error of law resulting in failure of justice by refusing to set aside the ex-parte decree.” On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant, the judgments relied upon by the appellant do not apply to the facts of the present case. A concurrent finding of fact has been recorded by the learned Courts below that the appellant was duly served, and she intentionally failed to appear in Court. It is not disputed that the appellant did not appear in the suit in spite of servie of notice. R.S.A. No. 831 of 2009 (O&M) -7- In support of the application for setting aside ex parte proceedings, she chose not to lead any evidence in spite of number of opportunities. Once the absence is found to be intentional, the ex parte decree cannot be set aside on mere asking or on payment of costs, because the minimum requirement for setting aside ex parte decree, is that there should be a sufficient cause for non-appearance. The appellant chose not to appear in Court despite service, and further failed to lead any evidence to prove sufficient cause for setting aside ex parte order. The substantial question of law, therefore, does not arise in this appeal. It cannot be said that the application moved by the appellant has been dismissed on hyper-technical grounds, as contended. No merit. Dismissed. (Vinod K. Sharma) Judge February 20, 2009 R.S.