RAM VISHAL Vs. SHOBHA RAM

JUDGEMENT

(1.) THIS revision is directed against an order passed by the Court of Fourth addl. District Judge, Jabalpur, in Misc. Civil Appeal No. 5/2002, upholding thereby the dismissal of an application under Order 9, Rule 13, Civil Procedure code, submitted by the defendant/revisionist.

(2.) SHORT facts giving rise to the present application are that shobharam, the respondent No. 1 and Khemchand, the predecessor of respondent Nos. 2 (a) to 2 (d), instituted a civil suit for declaration of title against the defendant/revisionist and respondent Nos. 3 and 4 in respect of agricultural land comprised in Survey Nos. 13 to 16, in Area 1. 194 hectare, situated at Village baderkala, Tehsil and District Jabalpur. Ex parte proceedings were drawn against the defendant/revisionist on 29-10-1994 on account of absence of the revisionist himself and his Counsel and an ex parte decree was passed on 1-3-1995 in favour of the plaintiffs. The case of the petitioner is that the suit was fixed on 29-10-1994 for reply and arguments on pending application. He was not informed about the progress of the suit and was consequently not aware that the suit was fixed on 29-10-1994. It is stated by the revisionist that on 8-6-1995 the plaintiffs tried to occupy the disputed land on the strength of the ex parte judgment and decree. Immediately on the next day the revisionist collected the information when he came to know for the first time that the ex parte decree was passed against him on 1-3-1995. The revisionist obtained a certified copy and submitted an application on 30-6-1995 under Order 9, Rule 13 of Civil procedure Code for setting aside ex parte judgment and decree accompanied by an application under Section 5 of the Limitation Act for condonation of delay. The plaintiffs opposed the application by submitting a reply. Learned Trial judge after holding ah enquiry held that the defendant revisionist failed to establish the sufficient cause for condonation of delay. Accordingly, the application for setting aside ex parte judgment and decree as well as the application for condonation of delay were dismissed on 21-12-2001. Aggrieved by it, Civil Misc. Appeal No. 5/2002 was filed, which too, was dismissed on 11-10-2004. Hence, the present revision application.

(3.) SHRI Rusia, learned Senior Counsel, in support of his contention submitted that a liberal approach is to be adopted while dealing with the applications for condonation of delay as well as setting aside ex parte decree. He relied on certain authorities. I do not feel it necessary to consider them on account of a different reason. Rule 6 of Order 9 of Civil Procedure Code empowers a Court to draw ex parte proceedings where the plaintiff appears and defendant does not appear when the suit is called on for hearing. The order sheet dated 11-10-1994 records the presence of the Counsels for plaintiffs and defendant. It further records that the Counsel for the defendant sought time to submit reply to an application under Order 6, Rule 17 of Civil Procedure Code. The time was granted in the interest of justice and the suit was fixed for reply and arguments on 29-10-1994. Thus, even if the defendant and his Counsel remained absent on 29-10-1994, the Trial Court had, at the most, power to decide the application under Order 6, Rule 17 of Civil Procedure Code, even in the absence of the defendant and his Counsel. On 29-10-1994, the suit on merits could not be said to have been called on for hearing. Since the suit was not called on for hearing on 29-10-1994, the Trial Judge had no jurisdiction to draw exparte proceedings against the defendant revisionist on merits of the suit. The suit was obviously fixed for 29-10-1994 for a limited purpose of the application for amendment. The application alone could have been decided by the learned Trial judge on 29-10-1994 and the biparte proceedings ought to have been continued for hearing on merits of the suit. The power to draw ex parte proceedings can be obviously exercised only when the suit is called on for hearing on merits. This crucial aspect of the law has been overlooked by the learned Trial Judge as well as by the learned Lower Appellate Judge. Thus, the basic order of drawing ex parte proceedings against the defendant/revisionist on merits of the suit is without jurisdiction and consequently the ex parte decree also stands vitiated due to the same.