A substantive right should not be allowed to be defeated on account of a procedural irregularity that is curable: High Court Of Chhattisgarh

1NAFRHIGH COURT OF CHHATTISGARH BILASPUR MA No. 919Order Reserved On : 18 10 2021 Order Passed On : 01 11 2021Bagas Ram Verma S o Lt. Shri Gaindu Ram Verma Aged About 50Years R o Village Rahud P.S. And Tah. Khairagarh DistrictRajnandgaon Chhattisgarh. At Present R o Sisly Matale Gali Ward No. 05 Rajnandgaon Tah. And District Rajnandgaon Chhattisgarh...(Judgment Debtor Applicant) AppellantVersus Sanjay Kumar S o Lt. Shri M.L. Kannoje Aged About 40 YearsOccupation Government Service R o Gandhi Chowk Ward No. 33 Tah. And District Rajnandgaon Chhattisgarh....(Decree Holder NonApplicant) Respondent For Appellant : Shri Rakesh Thakur Advocate. For Respondent: None though served.Hon ble Shri Deepak Kumar Tiwari J C A V Order1.The appellant has preferred this present Appeal against the order dated 30.1.2019 passed by the 1st Additional District Judge Rajnandgaon in MJC No.13 2017 whereby the application under Order 9 Rule 13 of the CPC moved by the appellant has been rejected.2.Facts of the case are that the respondent herein has filed the civil suitviz. Civil Suit No.2 B 2014 against the appellant for recovery ofamount. The said suit was decided ex parte on 18.11.2016 withoutgiving opportunity to the appellant. 23.It was the stand of the appellant that in the proceeding before the trialCourt he was supposed to appear however his counsel was appearing.It was further pleaded by the appellant that he was not aware about thedate of hearing on 18.11.2016 and his counsel also could not appear.Because of misunderstanding the ex parte order has been passed. Hecame to know about the ex parte order on 2.12.2016 and applied forcertified copy on the same day and filed an application under Order 9Rule 13 of the CPC. 4.The respondent has also filed his reply to the said application anddenied the averment of the appellant and pleaded that the appellant hasintentionally not appeared before the trial Court when the matter wascalled for recording the plaintiff’s evidence. He further pleaded thatthe application of the appellant is false and fabricated and as such theapplication should be dismissed.5.The trial Court has dismissed the application of the appellant filed underOrder 9 Rule 13 of the CPC holding that the appellant has not assignedor shown any cogent reason to remain ex parte in the civil suit and alsodid not appear on the subsequent dates also. The appellant was havingsufficient time to recall the ex parte order.6.Heard learned counsel for the appellant and perused the record.7.Considering the facts of the case the plaint was instituted on02.01.2014 for recovery of loan amount and defendant has alsosubmitted his written statement and contested the suit and on the dateof hearing on 18.11.2016 defendant’s contention is that his counselcould not appear because of misunderstanding his counsel has notedwrong date in his diary hence exparte order has been passed he came 3to know about the exparte decree on 02.12.2016 and applied forcertified copy and filed application under Order 9 Rule 13 of the C.P.C.for setting aside the Exparte decree passed on 18.11.2016. Appellanthas also filed affidavit in support of his application. The Plaintiff Nonapplicant has opposed his application. 8.In the matter of United Bank of India v. Naresh Kumar {A.I.R. 1997S.C. 3} it was observed as under: "there is sufficient power in the Courts under theCode of Civil Procedure to ensure that injusticeis not done to any party who has a just case. Asfar as possible a substantive right should not beallowed to be defeated on account of aprocedural irregularity which is curable." 9.In G.P. Srivastava vs Shri R.K. Raizada & Ors {(2000) 3 SCC 54} ithas been observed thus : “7. Under Order 9 Rule 13 CPC an ex partedecree passed against a defendant can be setaside upon satisfaction of the Court that eitherthe summons were not duly served upon thedefendant or he was prevented by any “sufficientcause” from appearing when the suit was calledon for hearing. Unless “sufficient cause” isshown for non appearance of the defendant inthe case on the date of hearing the court has nopower to set aside an ex parte decree. The words“was prevented by any sufficient cause fromappearing” must be liberally construed to enablethe court to do complete justice between theparties particularly when no negligence orinaction is imputable to the erring party.Sufficient cause for the purpose of Order 9 Rule13 has to be construed as an elastic expressionfor which no hard and fast guidelines can beprescribed. The courts have a wide discretion indeciding the sufficient cause keeping in view thepeculiar facts and circumstances of each case.The “sufficient cause” for non appearance refersto the date on which the absence was made aground for proceeding ex parte and cannot be 4stretched to rely upon other circumstancesanterior in time. If “sufficient cause” is made outfor non appearance of the defendant on the datefixed for hearing when ex parte proceedingswere initiated against him he cannot bepenalised for his previous negligence which hadbeen overlooked and thereby condoned earlier.In a case where the defendant approaches thecourt immediately and within the statutory timespecified the discretion is normally exercised inhis favour provided the absence was not malafide or intentional. For the absence of a party inthe case the other side can be compensated byadequate costs and the lis decided on merits.”10.Therefore looking to the facts and circumstances this court is of theview that the appellant has established the sufficient cause for his nonappearance as his counsel has noted wrong date in his diary and so hehas also not informed him hence the application under Order 9 Rule 13of Code of Civil Procedure is deserves to be allowed and accordinglyallowed. 11.Resultantly the Appeal is allowed and the impugned order dated30.01.2019 passed in M.J.C. No. 13 2017 by first Additional DistrictJudge Rajnandgaon & exparte decree passed in C.S.No. 2B 2014 dated18.11.2016 are hereby set aside on payment of costs of Rs. 5 000 tothe other side. 12.The parties are directed to appear before the trial court for furtherdirections on 26.11.2021. Sd JudgeBarve 

Summary: Unless “sufficient cause” was shown for the non-appearance of the defendant in the case on the date of hearing, the court had no power to set aside an ex parte decree. Such an opinion was held by The Hon’ble High Court Of Chhattisgarh before The Hon’ble Shri Deepak Kumar Tiwari in the matter of Bagas Ram Verma Vs. Sanjay Kumar [MA No. 91 of 2019].  The facts of the case were associated with an appeal against an order passed by the 1st Additional District Judge, Rajnandgaon dated 30.01.2019 wherein the application by the appellant was rejected under Rule 13 of CPC. A civil suit was filed by the respondent against the appellant for recovery of the amount. Without giving any opportunity to the appellant, the said suit was decided ex-parte. It was noticed that during the proceedings of the trial court, the appellant who was supposed to appear was absent while his counsel appeared on behalf of him. It was submitted that the appellant was not aware of the date of the hearing and due to the misunderstanding the ex-parte order was passed.It was stated that the respondent denied the averment of the appellant and contended that the appellant had intentionally not appeared before the Court. Later, the Trial Court dismissed the application of the appellant since he did not appear in the proceedings or had shown any cogent reason to remain ex-parte in the civil suit.  Considering all the facts, The Hon’ble Court stated that “Therefore, looking to the facts and circumstances, this court is of the view that the appellant has established the sufficient cause for his non-appearance as his counsel has noted wrong date in his diary and so he has also not informed him, hence the application under Order 9 Rule 13 of Code of Civil Procedure is deserves to be allowed and accordingly allowed… Resultantly, the Appeal is allowed…” Click here to read the Judgment