NARENDRA PATRA Vs. SHIBA NARAYAN TALDI

JUDGEMENT

(1.) Plaintiff is the petitioner and in this revision assails the order of the Additional District Judge in Misc. Appeal No. 5/53 of 1989/88. The short question that arises for consideration is whether the defendant not having appeared and not having filed written statement though time was granted for the purpose and a judgment being pronounced on the averments made in the plaint in exercise of powers under sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure, an application under Order 9 is at all entertainable. The learned trial Judge held such an application to be not maintainable, but on an appeal being carried, the learned Additional District Judge has held that an application under Order 9 is entertainable and hence the present revision.

(2.) The suit was one for specific performance of contract and the plaintiff prayed for specific performance of execution of the sale deed in respect of the suit properties on receipt of the balance consideration amount of Rs. 4,000/-. The defendants were set ex parte as they did not appear notwithstanding time being granted nor filed any written statement. The learned trial Judge delivered judgment on 25-4-1986 and granted the relief obviously exercising his power under sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure. Defendant No. 2 filed an application under Order 9, Rule 13, read with Section 151 of the Code of Civil Procedure, which was registered as Misc. Case No. 165 of 1986. In the aforesaid misc. case, the plaintiff took the objection that the suit having been decreed under Order 8, Rule 5(2), Code of Civil Procedure, an application for restoration under Order 9 is not entertainable. The plaintiff also filed an objection that the application for restoration is grossly delayed and no sufficient cause has been shown for the delay in question. The learned Subordinate Judge did not decide the question of limitation, but being of the opinion that Order 9 has no application dismissed the application for restoration. In coming to the aforesaid conclusion, reliance was placed on the decision of the Delhi High Court in the case of The Traders' Bank Ltd. v. Avtar Singh, AIR 1988 Delhi 55. Defendant No. 2 preferred an appeal against the aforesaid order of dismissal passed by the learned Subordinate Judge and the learned Additional District Judge who heard the appeal bring of the opinion that the provisions of Order 9 would also apply to a case where the suit is disposed of under sub-rule (2) of Rule 5 of Order 8, allowed the appeal. Hence the present revision.

(3.) Mr. Murty appearing for the petitioner contends that time having been granted to the defendant for filing his written statement and yet no written statement having been filed, the Court is entitled to pronounce judgment under sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure and such a judgment and the consequential decree thereon would not amount to an ex parte decree within the meaning of Order 9 and, therefore, an application for setting aside an ex parte decree under Order 9 is not entertainable. He further contends that even if an application under Order 9, Rule 13 is entertainable, but in the case in hand there being gross delay in filing the said application and the Court having not applied its mind as to whether sufficient cause has been shown for condonation, the matter requires readjudication by the learned trial Judge. Mr. Misra appearing for the defendant-opposite party No. 1, on the other hand, contends that the expression "in any case in which a decree is passed ex parte" in Rule 13 of Order 9, is not susceptible of a narrow construction and is wide enough to cover all cases of ex parte decrees, no matter for what reason the ex parte decree has been passed and, therefore, Order 9 would also be applicable where the Court pronounces its judgment in exercise of power under sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure, and consequently, the order of the learned Additional District Judge is wholly justified and does not require any interference. So far as the second contention of Mr. Murty is concerned, Mr. Misra submits that no doubt the application for condonation of delay has not been considered, but since by now considerable length of time has indeed passed, it would be meet and proper if this Court considers the same application and passes appropriate order thereon.