DAYARAM Vs. PUNIYA

JUDGEMENT

(1.) This petition is directed against the Order dated 21.5.2010 passed by the First Additional Judge to the Court of District Judge, Dhar in Misc. Civil Appeal No. 08 of 2010. By the Order impugned Court below has set aside the ex-parte judgment and decree and directed the trial Court to decide the Civil Suit No. 3A/2002 on merit. Facts giving rise to the petition, in a nut-shell are as under. Petitioners are the plaintiffs. They filed a suit for permanent injunction against respondents. Suit was decreed ex-parte on 31.1.2003. On 2.5.2003, respondents applied under Order IX Rule 13 of the CPC for recall of the ex-parte judgment and decree. It was registered as MJC No. 2/03. Said MJC was dismissed by the trial Court on 5.7.2004 in default of appearance. Respondents, therefore, applied for restoration of said MJC. This application was registered as MJC No. 22/2005. Trial Court vide Order dated 13.11.2009 dismissed the MJC No. 22/2005. The Order was challenged in Misc. Appeal No. 8 of 2010 which was allowed by the Order impugned as stated above. Hence this petition.

(2.) We have heard rival submissions of counsel at length. Perused the material placed on record. It is true that in a Court of law parties must have fair chance to contest suit on merit and substantial justice should not be scarified on the wheels of statistics but after giving considerable thought to the matter, I have come to the conclusion that in the facts and circumstances of the case in hand, this petition deserves to be allowed on the short ground that the learned appellate Court failed decide and record any findings why the decision of the trial Court in MJC No. 22 of 2005 was bad. The question before the Courts below in the proceedings under IX Rule 13 CPC was to adjudge whether on a particular date of hearing absence of the defendant or his counsel was justified for any reasonable and sufficient cause. It seems that the learned lower appellate Court side tracked the issue and was rather swayed by the merit/demerit of the claim set out in the plaint. This cannot be countenanced. In this view of the matter, the Order impugned is hereby set aside and the lower appellate Court is directed to decide the appeal afresh in accordance with law. Petition is allowed. Ordered accordingly.