SUPREME COURT OF INDIA

Before:- S. Saghir Ahmad and R.P. Sethi, JJ.

Civil Appeal Nos. 1934-1935 of 2000 (Arising out of SLP Nos. 17942-17943/1999). D/d. 3.3.2000.

G.P. Srivastava - Appellant

Versus

R.K. Raizada & Ors. - Respondents

For the Appellant :- Mr. Gopal Subramanium, Sr. Advocate with Mr. Santosh Kumar, Mr. Devesh Singh, Mr. Pradeep Ranjan Tiwari and Mr. Rakesh K. Sharma, Advocates.

For the Respondents :- Mr. Tara Chandra Sharma, Mr. Ajay Sharma and Ms. Pankhuri Srivastava, Advocates.

A. Civil Procedure Code, Order 9 Rule 13 - Ex-parte order - Setting aside of ex-parte order - Court not to adopt hyper-technical approach - Where a party approaches the Court immediately within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional - The other side can be compensated by adequate costs - In instant case, ex-parte order set aside subject to payment of cost of Rs. 5,000.

[Paras 7, 8 and 9]

B. Civil Procedure Code, Order 9 Rule 13 - Ex-parte order - If sufficient cause for non-appearance is shown, ex-parte order be set aside - Past conduct of the party should not be taken into consideration.

[Para 8]

C. Civil Procedure Code, Order 9 Rule 13 - Ex-parte order - Sufficient cause for non-appearance could not be shown by the party - Even if the party was found to be negligent, the other side could have been compensated by costs and ex-parte decree set aside - In the instant case cost of Rs. 5,000 imposed.

[Paras 8 and 9]

D. Civil Procedure Code, Order 9 Rule 13 - Ex-parte order - Defendant not well and sending certificate from a private doctor - Ex-parte order could not be passed only on the ground that certificate was given by a private doctor.

[Paras 8 and 9]

JUDGMENT

R.P. Sethi, J. - Leave granted.

2. On his failure to appear in the Court either personally or through his Advocate, the suit for arrears of rent, ejectment and damages filed against the appellant was decreed ex-parte on 10.3.1983. The application for setting aside the ex-parte judgment and decree filed on 7.4.1983 in terms of Order 9 Rule 13 of the Civil Procedure Code was dismissed by the Trial Judge on 14.5.1985. The revision petition No. 73 of 1985 filed by the appellant was dismissed by the High Court vide the order impugned on 23rd September, 1999 on the ground that the appellant had failed to establish any just or sufficient cause for his non-appearance on the date fixed when the ex-parte proceedings were initiated against him.

3. We have heard the learned counsel for the parties and perused the papers.

4. The facts of the case are that respondent-landlord filed a suit for ejectment and recovery of the arrears of rent on 5.8.1981 alleging therein that as the tenanted premises was new construction, the same is not covered under U.P. Act No. 30 of 1972. The appellant-defendant-tenant was alleged to have failed to pay the rent since June, 1980 and he was in arrears amounting to Rs. 4,000/-. A notice under registered cover dated 29th May, 1981 was sent by the respondent on the address of the appellant terminating his tenancy. Despite service of the notice the appellant was stated to have neither vacated the tenanted portion nor paid the arrears of rent or damages which necessitated the filing of the suit. The appellant-defendant resisted the suit mainly on the ground that the entire plot of land of Lane No. 21, Shanker Nagar, Nirala Nagar, Lucknow was let out to him in the month of February, 1997 and he was permitted to raise construction thereon. In pursuance to the aforesaid permission, the appellant claimed to have constructed the entire portion of the tenanted premises after incurring an amount of Rs. 25,000/-. Monthly premium of Rs. 300/- was settled to be paid. The competence of the respondent-plaintiff to file the suit was also challenged alleging that he was not the landlord of the appellant.

5. On 10th March, 1983 the case was called on for hearing by the Court in the early hours but as no-one appeared on behalf of the appellant, the same was again taken up at 2 p.m. As none appeared at that time also, the suit was decreed ex-parte on the basis of evidence preduced in the case. In his application under Order 9 Rule 13 of the Civil Procedure Code, praying for setting aside ex-parte judgment and decree, the appellant submitted that he was posted as Assistant Engineer in the Irrigation Department and on account of the construction of the bridges over the casual drains he had to remain at the site in the interests of public. He became indisposed in the evening of 8th March, 1982 at the site which was about 85 kilometres away from Lucknow and could not move or return back to Lucknow till 11.3.1983 which prevented him to appear in the Trial Court on 10th March, 1983. Unfortunately, the young nephew of the counsel of the appellant met with an accident on 10.3.1983 and expired which prevented his counsel also to appear in the Court on that date. It was contended that the absence of the appellant and his counsel in the Trial Court was on account of the aforesaid circumstances and not intentional. The application was supported by his affidavit and a medical certificate.

6. The Trial Court did not accept the pleas raised by the appellant and found that the absence of the appellant or his counsel in the Court on 10.3.1983 was not for just or sufficient cause. The filing of the medical certificate was not disputed but the same was not relied on as it was found to have been obtained from a private doctor and not from a Government doctor. The High Court also did not accept the contentions of the appellant and noticing his previous conduct rejected the revision petition refusing to set aside the ex-parte decree passed against him.

7. Under Order 9 Rule 13 C.P.C. an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex-parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' from non-appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when ex-parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory 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. In the instant case, it is not disputed that the nephew of the counsel of the appellant had died in a road accident on the date of hearing and that the appellant himself was not at the station on account of his employment and illness. The mere fact of obtaining a certificate from a private doctor could not be made a basis for rejecting his claim of being sick. 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 on 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.

9. Under the circumstances, the appeals are allowed by setting aside the order of the High Court and of the Trial Court. The ex-parte Judgment and decree passed against the appellant is set aside on payment of costs of Rs. 5,000/- to the other side. The Trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit proferably within a period of six months from the date of receipt of the copy of this order.

Appeals allowed.