SUSHILA (SMT.) Vs. RAJESH KUMAR PANDEY

JUDGEMENT

(1.) In this civil revision under section 115 CPC, petitioner/ defendant has approached this Court taking exception to the order dated 03/03/2016 passed by III Additional District Judge, Gwalior in Misc. Appeal No.145/2015 confirming the order dated 24/08/2015 passed by the trial Court in civil miscellaneous case No.18/2013. The application filed by the petitioner under Order 9, Rule 13 Civil Procedure Code for setting aside ex-parte decree has been rejected in a suit filed for declaration, injunction and recovery of possession. It needs to be mentioned that the plaintiff and the defendant are real brother and sister.

(2.) Upon perusal of the orders impugned, it appears that the defendant committed defaults through her counsel in appearance before the trial Court on certain dates as a result the trial Court had proceeded ex-parte. However, adopting the benevolent attitude, the trial Court acceded to the prayer of the defendant seeking set aside the ex-parte proceedings on an application filed under Order 9, Rule 7 Civil Procedure Code though subject to payment of cost. Though defendant filed written statement on 16/04/2012 but due to absence of the defendant and her counsel on 26/11/2012, the case has been again fixed for 27/11/201 On 27/11/2012, the ex-parte evidence of the plaintiff was recorded and the case was fixed for arguments on 30/11/201 However, on 27/11/2012 at about 5.00 pm the advocate, Shri Avadesh Sharma for defendant appeared and prayed for setting aside the ex-parte proceedings by filing application under Order 9, Rule 7 CPC. The same was allowed subject to payment of cost and thereafter the case was fixed for cross-examination of the plaintiff's witnesses on 23/07/2013. However, due to the unfortunate incident of accident of daughter, Ms.Shivangi Sharma of the counsel, Shri Satish Chandra Sharma, the counsel could not appear to complete the cross examination as a result the trial Court closed the case and thereafter passed the ex-parte order on 07/08/2013.

(3.) Learned counsel for the petitioner/defendant contends that the suit was filed on 29/12/2011 and within four months, written statement was filed by the defendant. Thereafter, the defendant did not remain absent deliberately to avoid hearing of the suit. In fact, the defendant engaged Sarva Shri Avadesh Sharma and Satish Chandra Sharma to participate in the proceedings of the suit. Non-appearance of the advocates had led to proceed ex-parte which were duly considered and trial Court on earlier occasion had set aside the ex-parte order though, defendant had to pay cost, each time. Defendant was not averse to cross-examine the plaintiff's witnesses, however, as the defendant was out of station on 23/07/2013 and since the daughter of the counsel had met with an accident, the non-appearance of the defendant and that of the advocates, Sarva Shri Avadesh Sharma and Satish Chandra Sharma for obvious reasons, the trial Court ought not to have taken exception to the non-appearance of the counsels on that date resulting into passing the ex-parte judgment and decree. It is submitted that not even a year passed by since the time the suit was filed and, therefore, the trial Court ought not to have adopted the hyper technical strict view in the matter of completion of hearing of the suit. After all, the procedural laws are meant to do complete justice between the parties and not to cause any prejudice to either party in any manner whatsoever. Moreover, the application seeking ex-parte judgment and decree was filed well within time and, therefore, the bona fide of the defendant/petitioner in the matter of defending the suit could not have been taken exception to. With the aforesaid submissions, learned counsel prays for setting aside the ex-parte judgment and decree though on such terms and conditions which this Court may deem fit and proper.