IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RFA.No. 132/1999.. Date of Decision: September 17,2008. Chief Editor Jansata and another. …Appellants. Versus: Arun Sen. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 .Yes. For the appellants: Mr.Ravi Bakshi, Advocate. For the respondent. Mr.Ramakant Sharma, Advocate Sanjay Karol, J(Oral). The present appeal arises out of the judgment and decree dated 18th March, 1999 passed by the District Judge, Solan, H.P. in Civil Suit No.32-S/10 of 95/88 titled as Arun Sen Vs. Chief Editor Jansata and another. Respondent- Arun Sen (hereinafter referred to as the ‘plaintiff’) filed a suit for damages of Rs. 5,00,000/- against the present appellants (hereinafter referred to as the ‘defendants’) averring that the defendants had caused publication of defamatory news items in the Daily News paper “Jansata” published on 22nd April, 1988 from Chandigarh. Initially the suit filed before this Court on 29th 1 Whether reporters of Local Papers may be allowed to see the judgment?` 2 April, 1988 was registered as Civil Suit No. 52 of 1988, but, however, subsequently, vide order dated 25th March, 1995, the same was transferred to the District Judge, Solan. The trial court, based on the pleadings of the parties, framed the following issues: 1. Whether the suit is bad for misjoinder and non-joinder of necessary parties?. ..OPD. 2. Whether the defendant No.1 published a news item at the instance of defendant No.2 in the daily newspaper ‘Jansatta’ on 22-4-1988? …OPP 3. Whether the publication of news item by the defendant was intended and meant to defame the plaintiff?. …OPP. 4. Whether the news item was true in substance and was reported in good faith being a matter of public interest?. …OPD. 5. Whether the plaintiff is in any way connected with the affairs of M/s Purewal & Associates at Jubbar?. …OPD. 6. Whether the plaintiff is entitled for a decree for damages of rupees 5.00 lakhs or any other amount as damages, if so, from which of the defendant?. …OPD. 7. Relief. Issues No. 1,4 and 5 were decided against the defendants and issues No.2,3 and 6 were decided in favour of the plaintiff. The Court below decreed the suit holding the news item in question to be defamatory and as such awarded damages to the tune of Rs. 2,00,000/-. Along with the suit, the trial court in the impugned judgment also dismissed the 3 defendants’ application filed under Section 151 C.P.C. read with Order 9 Rule 13, Order 17 Rules 2 and 3 by holding that since the judgment was reserved the application was not maintainable. Assailing the impugned judgment and decree, Mr.Ravi Bakshi has focused his submission on the wrongful rejection of the defendants’ application in question. He emphasized that the court erred in wrongly rejecting the same and affording adequate opportunity of either permitting the defendants to lead evidence or at least hearing the defendants on the merits, particularly when the non- appearance of the defendants on 10th March, 1999 was due to the personal difficulty of the counsel engaged by the defendant No.1 to conduct the matter. He has pressed for the remand of the matter for examination of the defendants’ witnesses and adjudication afresh on merits. Per contra, Mr. Ramakant Sharma, learned counsel for the plaintiff has vehemently opposed the prayer of remand and has highlighted the defendants conduct dis- entitles them from any indulgence and discretionary relief by this Court. He has also addressed on the merits and supported the impugned judgment for the reasons set out therein. I have heard learned counsel for the parties and also perused the record. 4 For the reasons which I shall elaborate hereinafter subsequently, I propose not to go into the merits of the main matter and decide on the application. The order sheet reveals that the trial of the suit was delayed on one account of the other for the reason totally attributable both to the plaintiff and the defendants. I shall advert to the conduct of the parties which, in my view, is absolutely essential for determining the submission made by the learned counsel for the defendants. The record reveals that with the closing of the plaintiff’s evidence on 25th February, 1999 the defendants were proceeded ex parte and the matter was adjourned for 10th March, 1999 on which date request made by the vice counsel for the defendants to adjourn the matter was turned down and the arguments in the main suit were heard and the matter was posted for pronouncement of the judgment on 15th March, 1999. However before the said date on 12th March, 1999 defendant No.1 through its counsel moved an application under Section 151 C.P.C. read with Order 9 Rule 13, Order 17 Rules 2 and 3 praying that the order dated 25th February, 1999 be set aside and the defendants be allowed to adduce evidence and the matter be heard afresh. In the application dated 12th March, 1999, duly supported by the personal affidavit of the vice counsel, it was stated as under: 5 “1.That the above mentioned case is fixed for pronouncement of judgment on 15.3.1999. 2. That the case was listed for plaintiff’s evidence on 25.2.1999 when the counsel for the defendant could not attend the Hon’ble Court. The reason for his non-appearance was that he could not hear the call and thus due to this fact the proceedings were held in his absence. The plaintiff closed his evidence on that day and the case was adjourned to 10.3.1999. 3. That unfortunately the counsel for the defendant No.1, Shri M.S.Chandel met with an accident and has been confined to bed since 28.2.1999. He was under bonafide belief that the case was still at the stage of the plaintiff’s evidence and that the defendant shall be given an opportunity to lead his evidence before arguments, on 10.3.1999. 4. That since the original counsel could not attend the Hon’ble Court on 10.3.1999 due to the fracture as stated above and had also to proceed to Shimla to appear for an interview for appointment of ADJs. Instructed the vice counsel to pray for adjournment on 10.3.1999 under the belief that the case was still at evidence stage. 5. That the vice counsel Mrs. Kamlesh Chandel, Advocate appear on the last date of hearing and as instructed prayed for an adjournment and also requested for an opportunity to lead evidence. This Hon’ble Court turned down the prayer as it was an old matter and desired the parties including the vice counsel present to address arguments. The vice counsel who had instructions only to pray for adjournment was neither prepared nor could actually assist the court and 6 could only read the preliminary objections from the written statement. In the circumstances the proceedings on the said date amount to ex-parte proceedings which are liable to be set aside. 6. That it may be pertinent to mention here that the civil suit on transfer from High Court was ordered to be proceeded ex-parte earlier also. The defendants had already filed written statement and cross examined the plaintiff partly before the Hon’ble High Court. The defendant’s application for setting aside ex-parte orders did not find favour with the court and was rejected. The defendants thereafter joined the proceedings and were entitled to take all steps under law including production of their evidence in defence as the effect of rejection of their application for setting aside ex-parte order was only that they were not relegated to the position on the date of the ex- parte order. In other words after joining the proceedings they were entitled to all steps under law including orders under order 9 CPC the circumstances warranted. 7. That the orders dated 25.2.1999 and 10.3.1999 are liable to be set aside or recalled as the absence of the counsel and the defendant on that day was not deliberate or intentional but bonafide and inadvertent as explained above. There is thus good and sufficient cause for his non-appearance.” (Emphasis Supplied) The court below while rejecting the application observed that the request of the vice counsel for adjournment was “declined on the grounds of the case being old” and also that when the judgment is reserved, the request of the 7 plaintiff to lead the evidence “would be beyond the powers of the court as the hearing is complete” and the application was not maintainable. The court referred to and relied upon the decision of the apex Court in Arjun Singh Vs. Mohindra Kumar and others, AIR 1964 S.C. 993. The record reveals that the defendants filed a written statement and based on the pleadings, the issues in the suit were framed on 16th August, 1990. Thereafter the plaintiff was given opportunity to produce his evidence and examine witnesses. It was only on 21st May, 1993 that the plaintiff’s first witness stepped into the witness box for examination. On 19th June, 1995 the defendants were proceeded ex parte. This was done when the matter was transferred by this Court to the District Court. An application for setting aside the ex-parte order was filed by the defendants but, the same was dismissed on 29th April, 1997. The fact of the matter is that even as on this date the examination of the plaintiff’s witnesses had not concluded and in spite of the various opportunities granted by the court, the plaintiff had failed to take effective steps in summoning its witnesses. The record also reveals that even the defendants had been causing appearance occasionally. In fact, on 11th January, 1999, the court recorded that neither the plaintiff’s evidence was present nor any steps were taken to summon the same and on the plaintiff’s responsibility to 8 produce evidence, the matter was adjourned for 25th February, 1999, when the plaintiff’s witness was examined but, however, the defendants’ counsel did not appear. Accordingly, the defendants were proceeded ex parte and on 10th March, 1999 the arguments were heard and the matter was directed to be listed on 15th March, 1999 for orders. The fact of the matter is that the learned counsel engaged by defendant No.1 had suffered fracture on 28th February, 1999 and for personal reasons could not appear in the Court on 10th March, 1999. The apex Court in Sangram Singh Vs. Election Tribunal Kotah and another, AIR 1955 S.C. 425 has held that the procedure is something designed to facilitate justice and further its ends. The laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard and that decision would not be reached behind their backs and where the proceedings affect the rights of the parties should not continue in their absence and that they should not be precluded from participating in the proceedings. But, however, this is subject to certain exceptions. In this view of the matter the order dated 19th June, 1995, proceeding the defendants ex parte would be of no consequence as not only the defendants had filed their written statement but had actually thereafter cross examined the plaintiff’s witnesses during the trial. It is not a case where 9 the defence of the defendants had been struck off. In my view, not only was it open for the defendants to cross examine the plaintiff’s witnesses but it was also their right to led their evidence in defence till the date when the defendants were again proceeded ex parte on 25th February, 1999 and the matter adjourned for arguments. Importantly, the defendants’ application was not rejected on the ground that their conduct disentitled them for the exercise of the discretionary relief. This was, perhaps for the reason that the Court was conscious of the fact that the plaintiff had taken nine years to examine its witnesses and conclude its evidence. But that by itself would not mean that the defendants themselves had not been negligent in pursuing the matter effectively. The record reveals that both the plaintiff and the defendants had been undoubtedly negligent in effectively pursuing the matter. In fact the defendants had been appearing only occasionally and casually participated in the proceedings by cross examining the plaintiff’s witnesses. It is important to record that when the defendants were proceeded ex parte on the day when the plaintiff’s evidence had just concluded. The defendants obviously were not afforded any opportunity to lead evidence as they were proceeded ex parte on that date. Importantly, it is not that the arguments were heard by the Court on 25th February, 1999 itself for 10 pronouncing the judgment. The Court posted the matter for hearing of the arguments on 10th March, 1999 on which date a request for adjournment was turned down on the ground that the case was old. The apex Court in Lal Devi and another Vs. Vaneeta jain and others, (2007) 7 SCC 200 while dealing with a case where the defendant was proceeded ex parte and on the very same day the arguments were heard and the judgment was pronounced, has held as under: “15. Having regard to the totality of circumstances we are of the view that in the interest of justice this appeal must be allowed. The learned District Judge recorded evidence, heard arguments and posted the matter later in the day for delivery of judgment. If the court had adjourned the proceedings to another day after deciding to proceed ex parte, the defendant could have applied for being permitted to participate in the proceedings. In this case since everything happened on the same day the defendant did not get an opportunity to do so. The learned District Judge decided to proceed ex parte. It thereafter examined the witnesses present in court and proceeded to hear arguments. It reserved its judgment to be pronounced later in the day. Even before he could pronounce judgment, counsel for the defendant had moved an application before him for recall of the order. It is true that in view of the law laid down by this Court in Arjun Singh the learned District Judge could not have entertained an application under Order 9 Rule 7 CPC. We have also no hesitation in observing that 11 counsels for the defendant were not careful enough to inform the learned District Judge about their preoccupation before the High Court which prevented them from being present in his court when the case was called for hearing. But the passing of an ex parte decree in a case of this nature is too harsh a consequence to be upheld. The defendant cannot be made to suffer an ex parte decree particularly when he was not at fault, having duly instructed his counsel to appear before the court of the learned District Judge. 16. We are not delving into the technicalities of the legal questions argued before us because we are of the view that in the facts of this case the interest of justice demands that the ex parte decree be set aside. We appreciate that the learned District Judge could not entertain an application under Order 9 Rule 7 CPC, and even the application under Order 9 Rule 13 was dismissed as not pressed. But nothing prevented the High Court from setting aside the ex parte decree in the appeal preferred against it.” The apex Court took into account its earlier decisions reported in Arjun Singh Vs. Mohindra Kumar and others, AIR 1964 S.C. 993. Keeping in view the aforesaid decisions and looking into the explanation given by the learned counsel for defendant No.1, I am of the view that non-appearance of the counsel on the date when the arguments were heard was not intentional and quite personal. In fact, a request for adjournment was made by the vice counsel whose presence 12 was also recorded but, however, without recording any reason the request was turned down. Learned counsel for the defendant No.1, without any delay filed the application on 12th March, 1999 which, in fact, was drafted on 11th March, 1999. The said application is duly supported by personal affidavit of the vice counsel who appeared in the Court on 10th March, 1999. In my view, the Court seriously erred in not adjourning the matter on 10th March, 1999, dismissing the application and not affording adequate opportunity to the defendants. The Court ought to have kept in mind that the defendants had never sought any opportunity for leading evidence. Considering that it took several years for the plaintiff to conclude its evidence, in my view, the order dated 25.2.1999, proceeding the defendants ex-parte ought to have been reviewed and afforded at least one opportunity of leading evidence or at least hearing the defendants on the merits of the matter. The counsel had a personal difficulty and the non-appearance was on that count and the defendants could not be penalized for the same. In my view, the rejection of the application has resulted into grave miscarriage of justice. In my view, keeping in view the totality of the circumstances, the impugned judgment and decree needs to 13 be set aside on this ground alone. Ordered accordingly. This, however, is subject to the following certain conditions: 1. The matter is remanded back to the trial Court for presence of the parties on 24th October, 2008. 2. The defendants at their risk and responsibility shall lead their entire evidence and not take more than three opportunities for the said purpose only if some official witness is to be examined, summon would be issued by the Court. 3. In rebuttal the plaintiff, shall also examine its witnesses and take not more than three opportunities. 4. If the parties fail to lead any evidence as above, the evidence shall be deemed to be closed. 5. Keeping in view the fact that the suit was filed in the year 1988, the court below shall endeavour to conclude the hearing and decide the matter as expeditiously as possibly and preferably within eight months from today. 6. The defendants shall pay cost of Rs.21,000/- to the plaintiff on the next date of hearing i.e. 24th October, 2008 before the trial Court. 7. It is clarified that I have not gone into the merits of the matter. 14 The appeal is accordingly disposed of, so also the pending applications. (Sanjay Karol), Judge. September 17, 2008(R)