ARUN KUMAR SAH Vs. GITA DEVI AND ORS.

JUDGEMENT

(1.) This Civil Revision application is directed against the order dated 08.12.2010 passed by learned Sub Judge-1st, Munger in a case arising from Miscellaneous Case No. 26 of 2009, whereby application filed by the opposite parties under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the "Code") together with petition for condonation of delay, has been allowed upon payment of cost of Rs. 5,000/- and the judgment and decree dated 14.09.2009 passed in Title Suit No. 24 of 2008 has been set aside and the suit has been restored to its original position. The facts of the matter as stated by the petitioner who is the plaintiff in the court below is that the opposite parties in urgent need of money, entered into an agreement to sell a semi constructed house standing on plot bearing khata no. 55, plot no. 120, tauzi no. 459, thana no. 210 admeasuring 9.38 decimals in mauza Ram Nagar, Circle, Jamalpur in the district of Munger for a consideration of Rs. 3,00,000/- in favour of the petitioner on 5.8.2006 after receiving an advance of Rs. 2,50,000/-. The agreement to sell was registered on 7.8.2006 with the District Sub Registrar, Munger. Upon failure of the opposite parties to execute a formal sale deed after receiving the balance consideration of Rs. 50,000/-, despite request being made by the petitioner and notice issued under registered post on 15.01.2007 and 7.4.2009, the suit in question was filed giving rise to Title Suit No. 24 of 2008. The suit was decreed on contest by a judgment and decree passed on 14.9.2009 directing the plaintiff-petitioner to deposit the balance amount of Rs. 50,000/- within two months and which was deposited by the petitioner vide chalan, copy whereof is placed at Annexure-2. An execution case was levied under Order 21 Rule 11 of the Code giving rise to Execution Case No. 8 of 2009 for execution of the sale deed through the process of the court. It is at this stage that the application in question was filed by the petitioner under Order 9 Rule 13 of the Code giving rise to Miscellaneous Case No. 26 of 2009 and which has been allowed by the order impugned, hence the present application.

(2.) Mr. Madhuresh Prasad, learned counsel has appeared on behalf of the petitioner and Mr. Harshwardhan Sahay, learned counsel has appeared for the defendant-opposite parties. Mr. Madhuresh Prasad has submitted that the suit being decreed on contest, no remedy lay for the opposite parties under Order 9 Rule 13 of the Code. It is submitted that the learned trial court has misdirected itself in allowing the said application which was not maintainable. With reference to the provisions of Order 9 Rule 13 of the Code, it is submitted that there are only two circumstances in which a defendant can take recourse to the remedy, namely; (a) non-service of summons and (b) availability of sufficient cause for not being able to contest the matter during trial. It is submitted that the case of the opposite parties did not fall in either of the categories. With reference to the statement made in paragraph-1 of the miscellaneous application, copy whereof is placed at Annexure-3 of the application, it is stated that the opposite parties have admitted to the service of notice and thus the condition of service of summons stands satisfied. It is submitted that even the other ground is not available to the opposite parties, since it is a contest decree. It is submitted that plea of lack of communication by the advocate hardly constitutes a sufficient cause for maintaining such application. It is submitted that the order sheet of the trial court manifests that arguments had been advanced on behalf of the defendants and thus even this plea is not available to them and they cannot plead that they were prevented by sufficient cause in appearing before the trial court. With reference to the operative portion of the judgment passed in the Title Suit, copy whereof is placed at Annexure-1, it is submitted that the suit having been decreed on contest by the trial court, the forum of Order 9 Rule 13 was no more available to the defendants-opposite parties. It is further submitted that the petitioner having fulfilled his part of obligation under the contest decree and having deposited the balance consideration amount, the defendant-opposite parties are now trying to wriggle out of their obligation under the decree. It is submitted that in view of the finding of the trial court recorded at page 13 of the impugned order wherein the learned trial court has noted that the hearing of the suit was adjourned for evidence of the defendants but no evidence was produced by them and that on 5.9.2009 there was attendance of both the parties and the argument of both the parties was heard, there is no circumstance warranting the exercise of power vested in the trial court under Order 9 Rule 13 of the Code. It is thus submitted that the order of the court below suffering from serious legal infirmity cannot be upheld and is fit to be set aside. It is submitted that the judgment and decree in the suit has been passed under the provisions of Order 17 Rule 3(a) of the Code and to which the provision of Order 9 Rule 13 do not apply. Learned counsel in support of his submissions has relied upon a Bench decision of this Court Krishna Kumar vs. Raghuvir Prasad Yadav, 1979 AIR(Pat) 49, a judgment of the Supreme Court Prakash Chander Manchanda vs. Janki Manchanda,, 1986 4 SCC 699 and a judgment of the Supreme Court Parimal vs. Veena, 2011 3 SCC 545. It is submitted that once the defendants had entered appearance, filed written statement and had contested the matter by advancing arguments, the remedy of the Miscellaneous Case was not available for them. Concluding his arguments, Mr. Prasad submitted that mere shifting of the burden on the counsel, by the defendant-opposite parties did not constitute sufficient cause.

(3.) The arguments advanced by Mr. Prasad has been contested by Mr. Sahay appearing for the defendant-opposite parties. It is submitted that the powers vested in the trial court under Order 9 Rule 13 is discretionary and the trial court having exercised the same in the light of the evidence on record, the finding arrived at may not be disturbed in the Revisional jurisdiction for there is neither any error of jurisdiction by the trial court nor is there any material irregularity in the same. It is stated that as the defendants were not informed about the hearing of the suit hence they did not lead evidence after filing written statement and that their lawyer misled them in the matter. It is further submitted that when the defendants were not getting information about the progress in the suit from their counsel, they got the records inspected through another counsel, that it came within their information that the suit had been decreed and which was sealed and signed on 18.9.2009. It is submitted that it is on account of failure of the counsel of the defendants to inform them about the hearing, that they were unable to lead evidence and thus the defendants may not be penalized for the acts of their counsel. It is submitted that the learned court below after considering the matter threadbare recorded satisfaction that the defendants were not able to actively participate in the suit and for the laches and negligent attitude of the counsel, the defendants cannot be put to injustice. It is submitted that in view of the categorical finding of the court below as to the reasons which prevented the petitioner from participating in the trial, the opinion formed by the court below did not warrant interference.