MADANLAL BASTIRAM MUNDHADA Vs. RAMCHANDRA LAXMINARAYAN KASAT

JUDGEMENT

(1.) By this petition, the petitioner challenges the order dated 25.1.1984 passed by the Judge, Small Causes Court, Pune, below Exhibit 1 in Miscellaneous Application No.851/1983. That application was filed by the petitioner under Order IX, Rule 13 of the Code of Civil Procedure for setting the ex-parte decree passe against him in Civil Suit No.3617/1976, on 4.3.1980. The trial court rejected the application holding that it is not tenable under Order IX, Rule 13 because according to the Court, the defendant-petitioner remained absent after filing written statement. In the opinion of the Court, as the defendant appeared, filed his written statement and thereafter remained absent, an application under Order IX, Rule 13 is not tenable. The view taken by the trial Court appears to be wrong inasmuch as perusal of the provisions of Order XVII, Rule 2 shows that after the defendant appears in a case and thereafter if he remains absent on an adjourned date, then the court has to follow the procedure laid down under Order IX. Therefore, whenever a court passes a decree in the absence of the defendant, it passes the order under the provisions of Order IX and therefore the application for setting aside the ex-parte decree under Rule 13 of Order IX would be tenable.

(2.) Shri Rane, learned counsel appearing for the petitioner, relied on the observations of the Supreme Court in its judgment in Sangram Singh v. Election Tribunal Kotah, 1955 AIR(SC) 425. In my opinion, the learned counsel for the petitioner is right in submitting that the application under Order IX, Rule 13 was tenable. In my opinion, the court had the power to set aside the ex-parte decree in case the defendant established before it that he had a valid reason for remaining absent on a particular date. Merely because in the application wrong provision of law was quoted, the court was not justified in rejecting the same. Considering that the petitioner is a tenant occupying the suit premises for a very long time, in my opinion, the trial court was not justified in shutting out his defence.

(3.) In the result, therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a). In so far as the aspect of cost is concerned, in my opinion, as the suit was filed in the year 1976 and because of the pendency of these proceedings the landlord has not been able to proceed further with his suit on merits and the tenant has enjoyed the property, it will be just and proper to direct the petitioner to pay cost of Rs.5,000/- to the respondent as a condition precedent of this order.