JITENDRA KUMAR CHOUDHURY Vs. BANKU SAHOO

JUDGEMENT

(1.) The present appellant who is the defendant in C.S. No. 102 of 2006 and the petitioner in C.M.A. No. 23 of 2011 under Order 9, Rule 13 of C.P.C. in the Court of the 2nd Additional Civil Judge (Senior Division), Cuttack challenges the order dated 22.12.2012 passed by the learned Civil Judge in the C.M.A. rejecting the prayer to set aside the ex parte decree dated 25.4.2011 passed in the C.S. The respondent herein is the plaintiff in the suit. He filed the suit for a decree for specific performance of contract directing the appellant-defendant to perform an agreement dated 20.4.2004 and to execute and register a Sale Deed in respect of the plaint Schedule 'A' property on receiving the balance consideration money from the respondent-plaintiff and to deliver possession of the property to him. Subsequently, the respondent-plaintiff filed another suit registered as C.S. 52 of 2007, on the allegation that the suit property being given on security with State Bank of India, Tulasipur Branch, against a loan availed by the appellant-defendant was going to be attached and sold under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, made a prayer to restrain the defendant so also the Bank from taking action in respect of the suit property for realization of Bank dues with further prayer to direct the Bank to receive the outstanding loan dues from the plaintiff and to release the title deeds in respect of the suit property which was deposited with the Bank by the defendant-appellant. Both the suits were taken up for analogous hearing. When the trial commenced, the plaintiff examined himself as P.W. 1. On different dates he was cross-examined in parts because of petitions for adjournment filed by the defendant from time to time. Ultimately, the date was fixed to 22.4.2011 for further cross-examination of P.W. 1. On that date the defendant again prayed for adjournment. Observing that P.W. 1 was already sent back on several occasions without examination, the learned Trial Court allowed the petition and granted adjournment as last chance subject to payment of cost of Rs. 50/- and posted the case to 23.4.2011 for payment of cost as well as hearing of the suit. On 23.4.2011 the defendant appeared in person and filed an adjournment petition on the ground that he had made an application to the learned District Judge seeking transfer of the suit to some other Court. On that date neither the cost was paid nor any prayer for extension of time was made. The learned Trial Court rejected the petition for time. Since the defendant, who was present in person, declined to further cross examine P.W. 1 and since the plaintiff had already closed his case, the learned lower Court passed order debarring the defendant from further prosecuting his defence on the ground of non-payment of cost and on the same date argument was heard and the case was adjourned to 25.4.2011 for judgment. On the date fixed, the judgment was pronounced decreeing the suit bearing C.S. No. 102 of 2006 and dismissing the other suit bearing C.S. No. 52 of 2007.

(2.) After dismissal of the suit, the defendant filed petition under Order 9, Rule 13 read with Section 151 of C.P.C. to set aside the judgment dated 25.4.2011. The same was registered as C.M.A. No. 23 of 2011. During pendency of the proceeding in C.M.A., the plaintiff-opposite party filed a petition to take up the point of maintainability of the petition under Order 9, Rule 13 of C.P.C. before going to the main proceeding. On that petition, the learned Trial Court passed a detailed order on 17.8.2012 observing that the petition under Order 9, Rule 13 of C.P.C. is maintainable. Thereafter, hearing on the petition was taken up. The petitioner-defendant adduced evidence by examining himself as P.W. 1. None was examined on behalf of the opposite parties. No documents were exhibited on behalf of any of the parties. While passing the impugned order, the learned Trial Court once again entered into the point of maintainability and this time took a contrary view holding that in the facts and circumstances the provisions of Order 9 Rule 13 of C.P.C. did not get attracted.

(3.) In the aforestated background, the present appeal against the impugned order has been filed. It is submitted on behalf of the appellant that the earlier finding that the application under Order 9, Rule 13 of C.P.C. was maintainable having not been challenged in any higher forum, the subsequent finding of the same Court on the same point is erroneous and illegal. Further submission is that the learned Trial Court instead of finding out as to whether the defendant was prevented by sufficient cause from appearing before the Court on the relevant date took into consideration the past conduct of the defendant on previous dates and thereby committed illegality. Further submission is that the circumstances under which the suit has been dismissed attract the provisions of Order 17, Rule 2 of the C.P.C. and, consequently, a petition under Order 9, Rule 13 of C.P.C. to set aside the decree is maintainable. On behalf of the respondent, it is submitted that since last adjournment was granted subject to payment of cost and on the next adjourned date cost was not paid, the learned Trial Court rightly debarred the appellant from prosecuting his defence and that since evidence from the side of the respondent-plaintiff was complete, learned Trial Court proceeded to dispose of the suit on merit. Further submission is that a petition under Order 9, Rule 13 C.P.C. in the facts and circumstances of the case is not maintainable. It is further contended that the appellant-petitioner did not approach the Trial Court in clean hands inasmuch as he did not only fife a petition under Order 9 Rule 13 of C.P.C. to set aside the impugned judgment and decree but also prefer a regular appeal before this Court in RFA No. 97 of 2011 challenging the same judgment and decree.