OMPRAKASH RAMESHWAR PATIDAR Vs. EKBAL HUSAIN NOOR MOHD

JUDGEMENT

(1.) Undaunted by unsuccess in two Courts below, the applicants have filed this civil revision under section 115 of the Code of Civil Procedure against the order dated 26-4-1997, rendered by 12th ADJ, Indore in Civil Misc. Appeal No. 23/95 thereby sustaining the order dated 5-9-1995 passed by 4th Civil Judge Class-II in MJC No. 9/94.

(2.) Factual matrix is in a narrow compass : The non-applicants had filed civil suit registered as 49-A/87 in the Court of 4th Civil Judge, Class-II Indore claiming relief of eviction on the ground of bona fide need under section 12(l)(f) of the M. P. Accommodation Control Act from the tenanted accommodation let at Rs. 200/- per month and for rent/mesne profit, on 2-5-1987. The applicants participated in the aforesaid suit till 8-9-1994. On 8-9-1994 the evidence of the plaintiff was present but on prayer of the defendants i.e. applicants, the court adjourned the case to 14-9-1994 subject to payment of costs of 100/-. On this date i.e. 14-9-1994 the counsel for the non-applicants however pleaded no instruction. The Court thus proceeded ex parte against the applicants. Exparte evidence was recorded and the case was adjourned to 22-9-1994 for arguments. On 22-9-1994 ex parte judgment and decree were passed. After delivery of the judgment the applicants had filed the application which was rejected as no hearing was left. Thereafter, the applicants filed the application, registered as MJC No. 9/94 under Order IX, Rule 13, Civil Procedure Code. The cause projected in this application was that the applicants could not remain present on 14-9-1994 and could not contact their counsel as they were busy in the treatment of their aunt Smt. Laxmibai. This assertion was disputed by the non-applicants. The Court below rejected the application on conclusion that it was not proved that the applicants were prevented by any sufficient cause from appearing when the suit was called on for hearing. On un-success, the applicants then preferred misc. appeal. The Court re-appreciated the matter and dismissed the appeal as devoid of merit. Now the revision petition is in this Court.

(3.) Shri Jain submitted that the provisions of Order IX, Rule 13, Civil Procedure Code are not penal and Courts below should have incinerated ex parte decree and reopened lis for biparte adjudication. He has also placed reliance on 1983 MPWN 496, Pritpal Kaur v. Chhedilal and has also read some portions from Lord Denning.