IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.1932 of 2007 Nirbhay Kumar Jha Versus Ashok Kumar Jha & Ors ---------------------------------- 8 01-12-2011 Heard Mr. Anil Kumar Jha, learned senior counsel appearing on behalf of the petitioner and Mr. Anil Kumar Mukund, learned counsel appearing on behalf of the opposite parties. By order dated 23-3-2010 notices were issued to the opposite parties for disposal of this revision application, if possible, at the stage of admission itself. This revision application has been finally heard and is being disposed of at this stage. This revision application has been filed against the order dated 16-8-2007 passed by the Additional District Judge, F.T.C.I, Saharsa in Miscellaneous Appeal No. 15 of 2003 whereby he has set aside the order dated 11-6-2003 passed in Miscellaneous Case No. 16 of 1996 by which order the petition under Order 9 Rule 13 of the Code of Civil Procedure for setting aside ex-parte decree in T.S.No. 33 of 1991 has been rejected. There is no dispute that T.S.No.33 of 1991 has been filed by the plaintiff-petitioner for specific 2 performance of contract for sale against the defendant- opposite parties. The plaintiff in the said suit had based his claim on the basis of the agreement dated 15-6-1990 alleged to have been executed by the defendants for sale of agricultural land measuring 2 Bighas 19 Kathas and 11 Dhurs for consideration of Rs.60,000/- out of which the plaintiff asserted to have paid Rs.50,000/-. The defendants did not appear in the suit for a long time after service of summons and therefore the suit was posted for ex-parte hearing. The defendants however appeared in the suit on 12-3-1996 and their prayer for recall of the order fixing the case for ex-parte hearing was allowed and the defendants were directed to file their written statement by 25-3-1996. But the defendants did not file written statement and ultimately, the learned court proceeded with the ex-parte hearing of the suit and decreed the suit on 02.07.1996. The defendants filed Miscellaneous Case No. 16 of 1996 under Order 9 Rule 13 of the Code of Civil Procedure praying for setting aside the ex-parte decree. In order to establish sufficient cause for their non-appearance in the suit, the defendants stated that they had bonafidely 3 relied upon the defendant no.2 for making pairvi in the suit, but he failed to do so due to his serious illness which had led to the suit going ex-parte against them. The plaintiff denied the assertion of the defendants and both the parties led their evidence in view of their rival cases. The learned Subordinate Judge after considering the evidence on record has come to the finding that the defendants could not establish by cogent evidence that defendant no.2 was ill and further after taking notice of the conduct of the defendants in not filing their written statement in compliance of the order of the Court, the learned court rejected the Miscellaneous Case holding that no sufficient cause could be established by the defendants explaining their non- appearance in the suit at the time of its hearing. The Miscellaneous Appeal No. 15 of 2003 was filed by the defendants against the aforesaid order. After considering the facts and circumstances of the case and submissions of the parties the appellate court has allowed the appeal by imposing cost of Rs.3000/- upon the defendants and set aside the ex-parte decree. This order by the appellate court has led the plaintiff to file this civil revision application. 4 The learned counsel appearing on behalf of the petitioner has submitted that the appellate court has passed a perfunctory order and has failed to consider the reasonings assigned by the trial court holding absence of sufficient cause, as asserted by the defendants. It has been further urged that the appellate court has proceeded solely on the ground that summons were not duly served upon the defendants which issue had become immaterial after the appearance of the defendants in the suit. The learned counsel for the petitioner has emphasized that no evidence has been considered by the appellate court before allowing the appeal and setting aside the ex-parte decree and there is no finding of existence of sufficient cause in favour of the defendants and has placed heavy reliance upon the decision of the Apex Court in (Parimal v. Veena) AIR 2011 Supreme Court 1150. The learned counsel appearing on behalf of the defendant-opposite parties has supported the impugned order and has submitted that while considering the prayer for setting aside the ex-parte decree a liberal approach should be taken and the suit as far as possible should be decided on contest on merits. It has also been contended by 5 the learned counsel that the appellate court below has passed the order considering the totality of the facts and circumstances and the only effect of the order is that the suit will now be decided on merits. A supplementary affidavit has been filed on behalf of the opposite parties bringing on record the order passed by this Court in another case between the parties. Referring to the said order it has been further submitted that a criminal proceeding has been initiated against the revision-petitioner on the allegation of forgery and fraud in the agreement for sale which has been sought to be enforced by the petitioner in T.S.No.33/91 and the petitioner had come before this Court by filing Cr. Misc. No. 31922 of 2007. After hearing the parties this Court by order dated 16- 2-2010 allowed the prayer of the petitioner for stay of the proceeding of the criminal case and has also issued direction to the court below to dispose of Title Suit no. 33 of 1991 within a period of nine months from the date of receipt of the order. Thus, the learned counsel has emphasized that the petitioner having obtained the order of stay by this Court by order dated 16-2-2010, as above mentioned, cannot be allowed at the same time to frustrate 6 the direction of this Court contained in the said order for disposal of the suit within a fixed period and has urged that the rule of estoppel will also be attracted against the plaintiff/petitioners. Considering the submissions of the learned counsel for the parties and perusing the impugned order as well as the materials on record, it appears that the revision- petitioner has field the T.S.No.33/91 for specific performance of contract against the opposite parties and an ex parte decree has been passed in the said suit. The petition for setting aside the ex parte decree has been dismissed by the trial court holding that the sufficient cause could not be established. However, the appellate court has allowed the appeal and set aside the ex parte decree. The appellate court has taken note of the pedantic approach of the lower court in appreciating the evidence of the defendant regarding sufficiency of cause. It is by now well settled that every attempt should be made for disposal of the dispute between the parties on merits as far as possible. The discretion conferred upon the Court under Order 9 Rule 13 while considering the plea of sufficiency of cause should be exercised in a judicial manner for the advancement of 7 justice and unless it is established beyond doubt that the party seeking for setting aside the decree has acted with contumacy or intentionally avoided appearance for the purpose of elongating the proceeding, the discretion should be exercised in positive manner. The apex court in (M.K. Pd. Vs. Arumugam) AIR 2001 SC 2497 has also illumined the factors to be considered in deciding the application for setting aside the ex parte decree it has been held as follows: “…Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable, while deciding the application for setting aside the ex parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the 8 delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary cost…” In the present case the defendant opposite parties had left the pairvy of the case which has resulted in the suit for specific performance of contract being decreed ex parte against them. In their application for setting aside the decree they have explained the circumstances for their non-appearance in the suit and have also led evidence to prove those facts. The appellate court has taken into consideration the totality of the circumstances as well as the evidence and has decided to exercise the discretion positively in favour of the defendant-opposite parties by taking into consideration the nature of the suit being a suit for specific performance of contract and stake of the parties involved in the said litigation. The learned counsel for the petitioner has strongly relied upon a decision by the Hon’ble Supreme Court reported in AIR 2011 SC 1150(Parimal Vs. Veena) for buttressing his submission that the defendants have not acted honestly and bonafidely and have failed to establish the “sufficient cause as required under Order 9 Rule 13 C.P.C”. It has 9 also been urged on behalf of the petitioner that the appellate court has acted with material irregularity in not considering the evidence of the parties as well as the reasons assigned by the court below while dismissing the application under Order 9 Rule 13 C.P.C. and has wrongly approached the whole case. However, in the above mentioned case also the Hon’ble Supreme Court has laid down as follows: “…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 straight-jacket formula of universal application…” The facts brought by the defendant opp.party regarding the order dated 16.02.2010 of this Court in Cr.Misc.No. 31922/07 also becomes relevant in view of the principles above mentioned and more so when the said fact has not been denied by the petitioner. From the said fact it appears that a complaint case has been filed against the revision-petitioner alleging forgery and fabrication in preparing the agreement for sale which has been sought to be enforced in the T.S.No. 33/91. The Cr.Misc.No.31922/07 has 10 been filed by the revision-petitioner praying for quashing of the cognizance order of the said Complaint Case No.1395(C)/05. The perusal of the record of Cr.Misc.No.31922/07, which has been called for by this Court, shows that the revision-petitioner has sought to assail the order of cognizance on the ground that the dispute was of civil nature and proceeding of the criminal case was an abuse of the process of the court. By order dated 16.02.2010, this Court admitted the Cr.Misc.No.31922/07 for hearing in presence of both the parties and has also passed the order for stay of the further proceeding of the complaint case with a direction to the Sub Judge, Saharsa to dispose of the suit within a period of 9 months from the date of receipt of order. It is clear from this order, that the revision-petitioner has obtained the order of stay which has been passed with further direction for disposal of T.S.No.33/91 within a time frame. At the time of passing of the said order it appears that the revision-petitioner did not inform the court regarding the pendency of this revision application and has accepted the said order dated 16.02.2010, as it was for his benefit. It has been rightly submitted by the counsel for the opp.party that the petitioners should not be allowed to approbate and 11 reprobate by accepting the part of the order which goes in his favour and disowning the other part which is against him. The learned counsel appearing on behalf of the petitioner has not denied the existence of the said order dated 16.02.2010. And as such there is no difficulty in holding that the petitioner cannot be permitted to assume inconsistent positions in court and to play fast and loose. Simultaneously, it cannot be lost sight of that the effect of the impugned order is only that the dispute between the parties would be decided on merits in T.S.No.33/91. In view of the facts and circumstances above, it is held that the appellate court has committed no error or illegality in passing the impugned order. However, as the suit is of the year 1991, the Sub Judge I, Saharsa where the suit is pending, is directed to dispose of the same within a period of 9 months from the date of receipt of this order. The parties to the suit are also directed to cooperate in the disposal of the suit within the aforesaid time frame and avoid taking unnecessary adjournments. This revision application is accordingly, disposed of with aforesaid direction. Roy/Nitesh ( V. Nath, J.)