IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.458 of 2000. Judgment Reserved on:09.04.2008. Date of decision: 28.05.2008 Shri Raipu and Others ….Appellants. Versus Shri Raju & Another ….Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellants: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. For Respondent No.1(b): Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. Dev Darshan Sud,J. The facts necessary for the determination of the present appeal are that a suit for declaration was filed by the plaintiff late Shri Sadhu who pleaded that Shri Saramjiu had two sons, namely, Fedru and Mithu. Mithu pre-deceased Fedru and his estate was inherited by Shri Fedru as Mithu did not have any surviving heir. Fedru died on 19.1.1986 and at the time of his death he was the owner in possession of the land measuring 15 Bighas 18 Biswas, comprised in Khasra Nos.289, 432, 465, 484, entered in Khewat 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 No.107, Khatauni No.171 old and now after settlement Khasra No.732, measuring 0-71-35 hectares and Khasra No.1119, measuring 0-46-58 hectares, total two plots measuring 1-17-93 hectares, Khewat No.103, Khatauni NO.304, situated at Chak Charoti, Tehsil Chirgaon, District Shimla, H.P. The plaintiff claimed the land on the basis of inheritance being related to Sh.Fedru by half blood. The defendants were proceeded ex-parte by an order dated 7.12.1998 and all subsequent applications, namely, for recalling the ex-parte order, permission to file a written statement, permission to lead evidence etc. were rejected at the trial stage itself or in appeal/revision against such rejection. The defendants joined proceedings and cross- examined the witnesses of the plaintiff, who was claiming testamentary succession by virtue of a will Ex.PW-2/A executed in his favour. The submissions made before the learned trial Court on the basic defence put forward by the defendants in cross- examination of the witnesses to the effect that the Will Ex.PW-2/A, (which was the basis for the title of the plaintiff), was shrouded by suspicious circumstances, were rejected by the Court holding that it was validly executed and proved in accordance with law. Appeal preferred by the defendants before the learned Additional District Judge, Shimla, was 3 also dismissed after a detailed appraisal of the evidence on the record. The Court held that the defendants were proceeded ex-parte on 7.12.1988 as they failed to put in appearance, their application for setting aside the ex-parte order was dismissed on 3.5.1991, but they were permitted to participate in the suit, allowed full opportunity to cross-examine the witnesses of the plaintiff. No written statement had been filed on the record of the case. In appeal, the judgment of the learned trial Court was assailed on a number of grounds which were considered and rejected by the learned appellate Court. It was held as a fact that the evidence on the record which remained un-controverted established that the plaintiff maintained and looked after in his old age by Fedru who cultivated his land and performed his last rites etc. on his death. The learned appellate Court specifically held that no suggestion to the contrary has been given to the plaintiff or his witnesses PW-2, Vijay Anand and PW-3, Sunder Singh. The Will Ex.PW-2/A was proved on the record by the scribe PW-2 Vijay Anand, attesting witnesses Bhagpur (PW-4) and Nirmu Ram (PW-5), who were unanimous in their testimony that after the Will had been reduced into writing by PW-2, Shri Fedru had put his signatures thereon and it was only thereafter that the scribe as well as the attesting witnesses had signed the same. Their signatures on Will Ex.PW-2/A were 4 admitted and proved by them. The endorsement of the Tehsildar also shows that it was Fedru himself who presented the will for registration and the Will was accompanied by a certificate on the obverse of the Vice President of the Gram Panchayat, Dhagoli, Shri Chet Ram, that he was present at the time of its execution. The suggestion in cross-examination by the defendants that the Will was forged was not established on the record. The defendants are now in appeal which was admitted on 29.12.2000 on the following substantial question of law: (1) Whether the learned trial Court erred in dis-allowing the application of the appellants for permission to lead evidence in rebuttal to the evidence led by the plaintiff? Learned counsel appearing for the appellants has made a number of submissions touching the merits of the case and submits that substantial justice should be done between the parties irrespective of the fact whether defendant has been proceeded ex-parte or not. In order to decide the question, the factual matrix needs to be considered, not for the purpose of re-appreciation of the evidence, but to see as to whether the defendants have acted in a manner which can be described as bonafide or an honest attempt to assert their rights though in a negligent manner. It is un-disputed that the defendants were proceeded ex- parte by order of the learned trial Court dated 5 7.12.1988. The order sheet shows that on 11.11.1988 notices were sent to the defendants which were made returnable for 7.12.1988. Report of service placed on the record shows that all the defendants were served but not present and they were proceeded ex-parte. No question regarding the proper service of the defendants has been raised before the learned trial Court. Thereafter, on 27.2.1989 the defendants filed an application for setting aside ex-parte proceedings against them. On 29.3.1989, the learned trial Court framed the following issues:- (1) Whether there is sufficient cause to set aside the ex-parte order dated 7.12.1988, as alleged? … …OPA. (2) Whether the application is barred by limitation? … …OPR. (3) Whether the application is not maintainable as per preliminary objection No.2? … …OPR. (4) Relief. The parties were given number of opportunities for leading evidence. It is un-disputed that the defendants did not appear in evidence, but one Mangru appeared as the witness of the appellants- defendants. By a detailed order dated 3.5.1991, all the issues were decided against the defendants. The learned trial Court held that sufficient cause had not been established by the defendants and that despite repeated opportunities having been given to them, they 6 did not care to step into the witness box to establish their case. It is also undisputed that thereafter they joined in evidence during the proceedings and continued to cross-examine the witnesses of the plaintiff. This order had attained finality as it has not been set aside in appeal or revision preferred by the respondents. Thereafter, defendants moved the trial Court for permission to lead their evidence. This prayer was also rejected by the learned trial Court by a detailed order on 8.4.1993 holding interalia that no written statement had been filed by the defendants. The Court noticed that the entire attempt/effort of the defendants is not a bonafide assertion of their rights. This order has also attained finality as it has not been challenged. Against this order an appeal was preferred before the learned District Judge who dismissed it on 6.9.1993 which has attained finality as no further appeal etc. has been preferred. These facts have been considered in detail by the learned appellate Court while deciding the appeal. Learned counsel appearing for the appellants submits that no harm would ensue in case ex-parte proceedings are set aside and the defendants allowed to lead evidence in support of his plea that the Will Ex.PW-3/A was forged. He places reliance on a decision of the Supreme Court in Arjun Singh Vs. Mohindra Kumar and others, AIR 1964 SC 993, holding: 7 “The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of Order IX, Rule 7 if the defendant appears on such adjourned date and satisfies the court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled - `set the clock back’ and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalized in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-à-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX, Rule 7 and Order IX, Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial.” He submits that substantial justice should be done between the parties and refers to Rafiq and another vs. Munshilal and another, AIR 1981 SC 1400, 8 Savithri Amma Seethamma vs. Aratha Karthy and others, AIR 1983 SC 318 and Smt.Lachi Tewari and others vs. Director of Land Records and others, AIR 1984 SC 41. This contention of the appellants cannot be accepted as these judgments are based on a different state of facts, namely, the counsel had been responsible for not attending the matter for no fault on the part of their client. Learned counsel then submits that in terms of the ratio laid down in Srei International Finance Ltd. vs. Fairgrowth Financial Services Ltd. and another, (2005)13 SCC 95, holding: “2. … … … … … … … … It is well settled that, ordinarily, a litigant should not be denied a hearing on merits unless something akin to gross negligence or misconduct on his part in contesting the proceedings is made out. … … … … … … … … … …” He submits that in G.P. Srivastava vs. R.K. Raizada and others, (2000)3 SCC 54, it has been held that: “7. … … … … … … … 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 penalized 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 9 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. 8. … … … … … … … … …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 n 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 about 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.” To similar effect is the judgment in G.L. Vijain vs. K.Shankar, AIR 2007 SC 1103: “15. The court’s power to impose condition for entertaining an 10 application must be provided for under the statute itself. We may immediately notice the distinction between the power of the court exercised under Order IX, Rule 7 of the Code of Civil Procedure vis-à-vis Order IX, Rule 13 thereof. Whereas while exercising its jurisdiction under Order IX, Rule 7 of the Code of Civil Procedure, the court can impose conditions in regard to payment of costs, but while exercising its power under Order IX, Rule 13 thereof, the court can exercise a larger jurisdiction in the sense that it can impose other conditions. … … …” Taking into consideration the entirety of the case law he submits that this is a case where the Court should have exercised its powers under Order IX, Rule 7 and Order IX Rule 13 to set aside the ex-parte proceedings. Lastly, reliance has been placed on a Division Bench judgment of the Delhi High Court in M/s. Lotus International & Others vs. Chaturbhujadas Karanani Textiles (P) Ltd. 65(1997) Delhi Law Times 300 (DB), holding that even where ex-parte proceedings have been taken the Court has ample powers to permit the defendants to participate in the proceedings. The principles of law as urged by the learned counsel appearing for the defendants cannot be disputed as they are now well established. However, the factual matrix of the case do not attract these principles. At every step, the defendant is moving the Court in 11 driblets seeking permission to re-agitate the matter which has already been decided. The ex-parte order has attained finality without any challenge; the defendants participated actively in cross-examining the witnesses and did not raise any ground for permission to lead evidence, except a feeble attempt at the conclusion of the trial that it would be in the interest of justice if such permission is granted. As noticed above, orders rejecting the request of the defendants having attained finality are now sought to be re-agitated by way of present appeal on the same very grounds which were urged in those applications. The Court of original jurisdiction i.e. the trial Court as also the appellate Court found as a fact that the applications were motivated and were not moved with a genuine desire of vindicating their rights in law. The orders passed by the learned trial Court on 25.5.1992 granted permission to the appellants- defendants herein to participate in further proceedings, although they had been proceeded ex- parte. At the cost of repetition it must be noticed that in a detailed order passed on 3.5.1991 on the application of the appellants herein to have exparte proceedings set aside, the Court has held that:- “8. To answer the issues in question it may be stated that neither the defendants nor their power of attorney 12 have come in the witness box to substantial their contentions raised in the application. My ld.predecessor afforded sufficient opportunities to the defendants to adduce evidence but in vain. One witness namely Mangsru has been examined by the defendants in support of their contentions but he has not been able to state as to what prevented the defendants from attending the court. Significantly the perusal of the application goes to show that the same was moved on 27.2.89 after the expiry of period of limitation. No affidavit has been filed by the any of the defendants in support of the contentions raised in the application nor they have come in the witness box to set forth the reasons which could have condoned the delay in preferring the present application. Therefore, the perusal of the application and the statement of one DW Mangsru makes it clear that neither the defendants have been able to show sufficient reasons fort he absence of the defendants from attending the court on the said date of hearing nor they have been able to show sufficient cause to condone the delay in filing the present application and as such all the issues are answered in negative.” On the contention of the appellants that they should have been given opportunity to lead evidence, all that which can be said is that such 13 permission was denied by the trial Court by its order dated 8.4.1993 which order was taken in appeal and rejected on 6.9.1993 holding that the conduct of the appellant discloses sheer negligence and an intention to prolong proceedings. The previous order ordering ex-parte proceedings against the appellants having attained finality, no permission could be granted to them to lead evidence. Even otherwise, on merits both the Courts below have considered the authenticity of the Will Ex.PW-2/A, which was the basis of the suit of the plaintiff. The learned trial Court has held and rightly so that there is nothing in the record to show that it is forged document as sought to be proved. The evidence on record of PW-2 Vijay Anand, (who is scribe of the will), and PW-3 Sunder Singh, shows that Sadhu and Fedru lived jointly and the last rights of Fedru were performed by the beneficiary. The witnesses of the testamentary instrument, PW-4 Bhagpur and PW-5 Nirmu, also supported the fact that the Will was a validly executed instrument and there is nothing suspicious about this. This was further fortified by the fact that the Will was registered and on the reverse it was authenticated by the Vice President of Gram Panchayat, Dhagoli. It is undisputed that particulars of fraud had to be pleaded under Order 6 Rule 4 of the Code of Civil Procedure and an omnibus trial cannot be permitted on the defendants raising all kinds of 14 frivolous objections. In case this is allowed, it would defeat the very purpose of pleadings and it would be the easiest task for any litigant not to file pleadings and under the guise of exercising the right of defence by participating in the proceedings, to allow every kind of evidence not pleaded, in order to defeat the claim of the plaintiff. It would render a trial farcical. The law neither contemplates nor provides the opportunity of the kind urged by the appellants herein. Although the rules or procedures are not handmaid justice, yet cannot be used in a manner to grant an unfair advantage or premium to a defendant whose conduct is of a nature which shows that he would take his case outside the law and exercise his right in a manner not contemplated by the Code as in the guise of exercising his/her rights. Such a party cannot be given an unfair advantage over a plaintiff who is circumscribed and bound by his pleadings and the law. As I have held, both the Courts below including the appellate Court have considered the evidence in detail including the fact that the application for leading evidence on behalf of the defendants was rightly rejected. The appeal carried against it was also rejected and that such order having attained finality, there is no illegality. The principle that substantial justice must be done, cannot be invoked by a party who manipulates the Court 15 and abuses the process of law by keeping the litigation pending ad-infinitum. In the circumstances, it is held that the application was rightly rejected. Even in appeal, the learned District Judge has re-considered the entire facts and arrived at the correct conclusion. In the circumstances, it cannot be said that the learned trial Court was wrong in denying permission to the defendants to lead evidence. What was it that he sought to prove by his evidence to be led? There was no defence with the defendants and having failed to file written statement, he could not be permitted to convert the trial into a farce or an omnibus trial where he could lead evidence on non-existing pleadings. In the circumstances, I do not find any merit in the appeal preferred by the defendants which is accordingly rejected. The question of law formulated for decision is answered against the defendants. It is held that the trial Court as well as the appellate Court were correct in refusing permission to the defendants to lead evidence. There shall be no order as to costs. May 28 , 2008. (Dev Darshan Sud) (aks) Judge.