SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 1 }- S.B. Civil Misc. Appeal No.158/2008 Ramesh Chandra vs Jagdish Chandra Pancholi & Ors. DATE OF ORDER : - 9.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Arun Bhansali, for the appellant. Mr.Rakesh Arora] Mr.RK Sharma ],for the respondents. Mr.Anuj Sahlot ] <><><> Heard learned counsel for the parties. The appellant's application filed under Order 9 Rule 13 CPC was dismissed by the trial court by order dated 7th Sept., 2007, hence, this appeal has been preferred by the appellant-defendant, who was only contesting party after submitting compromise by the defendants nos. 1 and 3. The suit for partition was filed and in which the present appellant was defendant. In the suit, the issues were framed on 7.8.1996 and, thereafter, affidavits were filed and case was going on for the cross-examination of the SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 2 }- plaintiff. There is chequered history because of filing of various applications and various orders passed by the trial court during long period till 11.1.2007 when the trial court passed the order to proceed ex-parte against the appellant- defendant. The appellant-defendant submitted an application under Order 9 Rule 7 CPC for setting aside the ex-parte order dated 11.1.2007. The application was dismissed by the trial court by detailed order dated 12.2.2007. The order dated 12.2.2007 is detailed one and by this order, the trial court found the cause shown by the appellant for his non-appearance on 11.1.1007 is not sufficient. The trial court also took note of the fact that on 11.1.2007 by the time 1.10 pm nobody appeared on behalf of the appellant-defendant no.2. At 1.10 pm an application was submitted by the counsel for the appellant under Order 6 Rule 17 CPC. There was serious objection from the side of the plaintiff and the plaintiff requested to decide the application filed under Order 6 Rule 17 CPC on the same day and the plaintiff submitted that he did not want to file SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 3 }- reply to the application. Upon this, counsel for the appellant-defendant no.2 assured the court that he will appear at 2.00 pm and will argue the matter, but he did not appear till 3.45 pm and ultimately, the trial court rejected the appellant's application filed under Order 6 Rule 17 CPC and also passed the order to proceed against appellant ex- parte. This order was not challenged and ultimately, the trial court passed the decree for partition on 2nd April, 2007 and then the appellant-defendant submitted an application under Order 9 Rule 13 CPC on 3rd May, 2007. The trial court after considering the submissions of learned counsel for the parties narrating all the facts and after taking cognizance of the conduct of the appellant in detail, rejected the application for setting aside the ex-parte decree. The appellant, therefore, has preferred this appeal. Thereafter, the final decree was passed by the trial court on 26th April, 2008. According to the appellant, he has not challenged either the preliminary decree dated 12th Feb., 2007 or final decree dated 26th April, 2008. However, according to SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 4 }- learned counsel for the appellant one of the other defendants challenged the final decree dated 26th April, 2008 by preferring appeal, which is pending before the first appellate court. According to learned counsel for the appellant the trial court committed grave error of law and fact by rejecting the application filed under Order 9 Rule 13 CPC. According to learned counsel for the appellant the trial court proceeded on assumption that the appellant was required to show his good conduct during all the proceedings of the suit and in fact, because of this assumption, the trial court failed to apply its mind on the cause shown by the appellant for his absence on 11.1.2007. The appellant in his application clearly stated that because of murder of his cousin brother Giriraj Sharma, he was to go to Pratapgarh all of sudden during court hours and, therefore, he could not inform his counsel that he is going to Pratapgarh in connection with the murder of his cousin brother. This cause as such was not rejected by the trial court but because of the past conduct of the appellant only, the trial court rejected the SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 5 }- appellant's application filed under Order 9 Rule 13 CPC. Not only this, but the trial court committed serious error by wrongly reading the order-sheets of 2-3 dates and blamed the appellant for delaying the proceedings, whereas on those days, time was sought by the plaintiff and not by the defendant. Learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court delivered in the case of G.P. Srivastava Vs. Shri RK Raizada & Ors reported in 2000 DNJ (SC) 164 wherein the Hon'ble Apex Court held that “.....Defaulting party is required to show sufficient cause for non-appearance on particular date on which the adverse order was passed against him and it 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 initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier....” In view of the above reasons, learned counsel for the appellant submitted that the SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 6 }- appellant shown sufficient cause for his non-appearance on 11.1.2007 and, therefore, the ex-parte decree dated 2nd April, 2007 may be set aside. Learned counsel for the respondents vehemently submitted that the appellant's conduct was taken note of by the trial court twice, firstly while rejecting the appellant's application filed under Order 9 Rule 7 CPC by detailed order dated 12.2.2007 and then again while rejecting the appellant's application filed under Order 9 Rule 13 CPC. It is also submitted that appellant's reason for absence on the date 11.1.2007 was not found sufficient by the court in its earlier order dated 1.2.2007 then the same ground cannot be and could not have been taken as sufficient ground for setting aside of the ex-parte decree. If the cause for absence of the appellant on 11.1.2007 was sufficient then the trial court would have set aside the ex-parte order while deciding the appellant's application under Order 9 Rule 7 CPC. It is also submitted that the appellant's conduct cannot be ignored. Learned counsel for the respondents SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 7 }- relied upon the judgment of the Hon'ble Apex Court delivered in the case of M.R. Tyagi Vs. Shri Devi Sahai Gautam in Civil Appeal No.3241/2006 decided on 2.8.2006 wherein the Hon'ble Apex Court deprecated unnecessary adjournments granted by the courts. I considered the submissions of learned counsel for the parties and perused the record as well as facts of the case. There cannot be any dispute that party cannot be penalized for the fault of the advocate. There cannot be dispute that party is required to show sufficient cause for his absence for the day on which adverse order was passed against the party. The party cannot be penalized because of his earlier negligence, which have been condoned by the court. In this case, I do not find that the conduct of the party was ever condoned by the trial court. Adjourning case taking a lenient view itself is not condoning of conduct by the court of the party, but its a lenient view of the court court permits for adjournments in the case inspite of the SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 8 }- fact that several amendments have been made in the procedural law against grant of adjournments. Further more, adjournments are granted by the trial courts because of the reason that there is heavy load on the trial courts. Be it as it may be, in the present case, the appellant's contention that there was valid reason for his absence on 11.1.2007 has not been considered by the trial court, is as such not correct in view of the fact that, the trial court had occasion to consider this ground on earlier occasion and that is when appellant's application filed under Order 9 Rule 7 CPC was decided by the trial court. The trial court rejected the appellant's application filed under Order 9 Rule 7 CPC by judicial order after considering the plea and reason for his absence. While considering the reason for sufficiency of cause of absence of the appellant on a particular date, if the court looks into the past proceedings, the court certainly can do so only with the object that a bonafide litigant may not suffer because of the past conduct only. The sufficient cause shown by the appellant for the relevant date cannot SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 9 }- be ignored, but at the same time, if cause is not sufficient, the additional ground for not granting relief can be the conduct of the party. In the present case, I do not find that the trial court has rejected the appellant's application merely on the basis of his past conduct alone and rejected the application without considering the cause shown by the appellant for his absence on 11.1.2007. In addition to the above, it will be worthwhile to mention here that in a suit for partition where the trial court has declared equal share of all the parties in the properties, the one of the party – the mother of the appellant is of the age of 85 years and in that situation, if the conduct of the appellant was looked into by the trial court to find out whether he has delayed the proceedings deliberately,the trial court has not committed any error nor has considered a fact, which could not have been considered by the trial court while deciding the application filed by the appellant. On 11.1.2007 according to the appellant he was present in court but except his own statement, there is no SBCMA No.158/2008 Ramesh Chandra Vs. Jagdish Chandra Pancholi & Ors. -{ 10 }- material from which it can be gathered that he was present in court before the lunch break on 11.1.2007. On that day, an application was submitted by his counsel under Order 6 Rule 17 CPC. His counsel after seeing the opposition from the plaintiff sought time from the court to argue the application at 2.00 pm and, thereafter, he did not came back. In view of the above reasons, if the court below found that appellant failed to show sufficient cause for his non- appearance on 11.1.2007, I do not find that the court below has committed any error. In view of the above reasons, I do not find any merit in this appeal and the same is hereby dismissed. (PRAKASH TATIA), J. c.p.goyal/-