419 44 r Civil Revislon No493 of 2009 mle t eee IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH Civil Revision No493 of 2009 O8MI Date of Decision 2 092010 Prem Kumar and others Petitioners 1 Lr llersus Krishan Kumarandothers 3espondents 1 CORAM 2 HONBLE MRJSTICE NAWAB SINGH I Presentle Mr Chetan Mittal Sr Advocate with Z Mr Vishal GargAdvocate for the Mr Ashwani ChopraSr Advocatewith I Mr VikramAnand Advocate c2j for the NAWAB SINGHJ W7 Z This defendants revision IS directed againstthe Order dated 14 2009 Pl9I passedby Additionai District JudgeBarnala the order datedFebruary 14 2007 Pl8IpassedbyAdditional Clvil Judge Senior DivisionlBarnala wherebyapplication under Order9 Rule 13 of the Code of Civil Procedure short CPCI filed bythe to set aside the expartedecree dated June 2 2005 InnexurePll Ol passedbyCivil Judge6JuniorDivisionlBarnala was dismissed 2 Facts briefly are that a civil suit was filedbypresent in the year 1999 againstthe present It was beingcontested The were being by counsel However the were proceededagainstexmparte csg U Uma 2012.12.27 13: 28 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 420 l 4 nav L 4 Civil Revision No493 of 2009 e2m on August7 2004 as none on their behalf and the decreedatedJune 2 2005 AnnexurePllOl was passed 3 Petitioners movedthe trial Court for settingaside theexpartedecree byfiling under Order 9 Rule 13 CPC Annexure PllOlIssueswere frame Evidencewas recorded The was dismissedby CivilJudgeSenior DivisionlBarnala byorder dated February14 2007 4 was filed whichwas dismissed byAdditional District Barnala vide orderdatedSeptember 14 t 2009 5 For a systemof justiceto be in placeit is necessary to have substantiveand also Iaws Without that there shall be disorder in so far as there shall be no parameterswithin I which the Courtsare to function Rules and are enacted with the primaryobjectof dispensingsubstantivejusticeand not to Z thwart it It is therefore incumbent on theCouns of Iaw to be Iiberal tr and not to take hypertechnical View which may result in denial of substantivejustice I 6e The Code of Civil Procedure and the Iaw of 021 Iimitationare essentiallyprocedural Iaws If a partyabsents on the date of hearingit may be proceededagainstexparteor the suit may e Z be dismissedin default as the case maybe Provisionhasalso been Clm made for settingaside the expartedecreelorderand restoration of suit 7 It all has the roots in the equitable rnaximof almost universal application that a contest on merits is the soul of justice and a technicaldefault should not be allowed to standin the way 8e In the case in hand the were proceeded againstexeparte and the exeparte decree was passedon June 2 2005 Theyhad appointed counsel Shri RP Goyalto representthem who had assured that theyneed not appear in person on the dates of hearingIf the in the givensituation assumed that their counsel must be for them there was nothingunnaturalin it CAAUv6 IJ Uma 2012.12.27 13: 28 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 421 l Civii Revision No493 of 2009 m3m nor remiss on partof the It was after execution petition was filed bydecreelolders that the came to know of the passingof expattedecree Theythen filed the application underOrder9 Rule 13 CPC 9 The suit was filed in the year 1999 The were contesting it all the Iongyearstill theywere proceededagainst expaneand decree was passedon June 2005 What is of essence to be seen is whether the absence was intentionalor 1 whether there were sufficientgroundfor it Aftersix years of initiation Q of the suit and it for that Iongperiodwhat benefit the could derive by and getting X expane decree passed against them2 None ofecourse this aspectgotovereIookedbythe Couns below There U Z was then evidenceand circumstancesto show sufficientcause for the absence Petitionerswere under the that Shri RP Z GoyalAdvocatewas appearing for them and theyhad reason so to Q4 believe It Iater came to their notice that Shri R GoyalAdvocate had not appearedand theyhad been proceededagainstexparte I cll After that there was no inordinatedelayin movingthe Court for settingaside the expartedecree The Courts below fell in error by m requiringtoo strict a standard of prooffrom the in Z under Order 9 Rule 13 CPC which resulted in denial of 0 substantivejustice Supponto this view can be had from the authorityGP SrivastavaVersus RK Raizadaand others 20001 3 SupremeCourt Cases 54 whereinHonble the Supreme Court has held that narrow and technical approachof the Court Ieads to of Justice can onlybe achievedif defendantis allowed to prove his case 10 For the reasons aforesaid the revisionpetitionIS acceptedThe orders under are seteaside The application under Order 9 Rule 13 CPC is acceptedwith costs of Rs0001 The expartedecree dated June 2 2005 PllOlis set aside The shall be allowedbythe trial Court 3 10 29 e ce 10 Uma 2012.12.27 13: 28 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 422 Civil Revision N6493 of 2009 m4m ene 1 to contest the suit fromthe date of beingproceededagainstexepane onwards The trail Court shall restore the file issue notice to the partiesand proceedfurtherto decidethe case on merits Disposedof C1 6u4 0 1NAWABSINGHI JUDGE 092010 neetulsom 1 I Z I 021 Z Uma 2012.12.27 13: 28 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document