Case: A MURUGESAN Vs. SMT. JAMUNA RANI

3. The respondent-plaintiff has filed the aforesaid suit for specific performance of the Agreement dated 11.10.1995. It is a case of the respondent-plaintiff that out of total consideration of Rs.3,00,000/-(Rupees Three Lakhs), he has already paid Rs.2,25,000/-(Rupees Two Lakh Twenty-Five Thousand) and in spite of his readiness to pay the balance amount, the appellant-defendant is not ready to execute the sale deed by receiving the balance consideration amount. During the trial, the aforesaid suit was listed for hearing on 16.03.2009. On the aforesaid date, on the ground that there was no representation on behalf of the appellant, the appellant was put ex-parte, and ex-parte decree was passed, decreeing the suit4. The appellant-defendant has filed the application under Order IX Rule 13 of CPC, for setting aside the ex-parte decree in I.A. No. 117/2009. In the aforesaid application, the case of the appellant was that on 16.03.2009, there was a boycott of all the courts on the call of Bar Association, as such, all the advocates boycotted the courts in the District of Cuddalore including Chidambaram District. He has also pleaded that as he was suffering from viral fever, he also did not attend the court. It is a case of the appellant that in spite of showing sufficient cause for not attending the court on 16.03.2009, the Trial Court has erroneously rejected the application filed under Order IX Rule 13 of CPC5. The Trial Court, while considering the application filed by the appellant herein, under Order IX Rule 13 of CPC, has considered the past events in the suit stating that the appellant is trying to protract the litigation dismissed the application by order dated 30.06.2009. Aggrieved by the said order, the appellant-defendant has filed Civil Miscellaneous Appeal No. 15/2009 before the Additional District Court/Fast Track Court No.1, Chidambaram. Same was dismissed by order dated 13.07.2010. The matter was further carried by way of Civil Revision Petition No. 1202 of 2014 before the High Court, which also ended in dismissal by order dated 17.04.2014.

Reasoning: 10. We have considered the submissions of the learned counsel appearing on both the sides and perused the order of the Trial Court, rejecting the application filed by the appellant under Order IX Rule 13 of CPC and further orders passed in Civil Miscellaneous Appeal as well as in Civil Revision Petition11. From a perusal of the order of the Trial Court, it is clear that the Trial Court has taken into consideration the past conduct of the appellant-defendant in the suit, instead of confining the consideration as to whether the appellant has shown sufficient cause or not for not appearing in the matter on 16.03.2009. It is fairly well settled that when an application is filed for setting aside ex-parte decree under Order IX Rule 13 of CPC, the only aspect which is required to be considered is whether any sufficient cause is shown for absence in the matter when the matter was called. Without recording the specific finding, on the plea of the appellant that there was sufficient cause, the Trial Court has committed error in rejecting the application under Order IX Rule 13 of CPC. Even the appellate and the revisional court have not considered the matter in proper perspective and rejected the claim of the appellant. The judgment in a case of G.P. Srivastava (supra) supports the case of the appellant12. The aforesaid view taken by this Court in the judgment referred above supports the case of the appellant. It is further brought to our notice that on the aforesaid date, i.e., 16.03.2009, on which date the suit was listed for trial, in view of the boycott of the courts by the advocates, all other cases were adjourned and only this case was proceeded and ex- parte decree was passed13. As the suit is for a substantive relief, i.e., for grant of decree of specific performance, and further we are satisfied that the appellant has shown sufficient cause for not appearing in the matter when the matter was called on 16.03.2009, we are of the view that it is a fit case to allow the application filed by the appellant, by setting aside the impugned orders. All the courts below committed error in rejecting the application on the grounds which are not relevant to consider the application filed under Order IX Rule 13 of CPC14. We are conscious of the fact that all the three courts have held against the appellant, but if we allow the impugned orders to stand, it will result in miscarriage of justice.