JAGDISH PRASAD SWAMI Vs. RAMJI LAL JOSHI

JUDGEMENT

(1.) THE hyper-technical and the hyper- insensitive approach of the trial Court while dealing with an application under Order 9, Rule 13 of the Code of Civil Procedure (henceforth to be referred to as `the Code', for short) is forcing a defence to run from pillar to post. What could be easily tackied at the level of the trial Court is being transported to this court. Needlessly, this Court is being flooded day in day out with appeals against the rejection of application under Order 9, Rule 13 of the Code. This tide needs to be reserved, if this court is not to be overwhelmed by the rising dockets.

(2.) THE appellant has challenged the order dated 15. 7. 2006 passed by the Additional District Judge, Shahpura, District Jaipur whereby the learned Judge has rejected the application under Order 9 Rule 13 read with Section 151 of the Code.

(3.) THE function of the courts and reason for creation of the Judicial system is to do justice to the parties. Thus, by the very raison d'etre, the courts are expected to be liberal in spirit and not pedantic in their approach. Although, Order 9 of the Code bestows sufficient power to deny the defendant an opportunity of hearing, but such a power should not be used mechanically or at the drop of the head. Since exercise of such a power infringes on the constitutional right of being heard, since it also infringes on the principles of natural justice, such a power should be exercised in the rarest of the rare case. Repeatedly, it has come to the notice of this Court that the door is being shut on the defendant on the ground that the defendant has approached the Court beyond the period of limitation or ostensibly on the ground that the summons were served. While judging the sufficiency of the reasons for the non-appearance of the defendant, the court should be sensitive to the harsh reality of this country. THE illiterate and the poor litigant approaches the court for justice. THE defendant approaches the court with the hope that the will be given ample opportunity to defend his case. At times, the defendant is assured by the counsel that he will be informed about the progress of the court. But, the counsel falls to adhere to his promise. At times, the counsel pleads "no instructions", but the defendant has no knowledge of the counsel's pleading "no instructions" before the court. At times, summons are said to be served upon the defendant, but no cogent evidence is produced to buttress such a claim. At times, the service of summons is presumed on weak evidence. At times, cases are transferred from one court to another without any information to the litigant, who may be residing miles away from the court. In such circumstances, the court should be circumspect in dismissing the application under Order 9 Rule 13 of the Code. For, defendant is being ousted from the court for no fault on his own. THE illiterate litigant is hardly aware of the intricacies of the legal procedure. THE illiterate litigant instinctively and in good faith relies on the assurance of the counsel and hopes that the court will be vigilant about his interests. THErefore, while dealing with an application under Order 9 Rule 13 of the Code, the court should not only be liberal in its spirit but should also be sensitive to the reality in which the litigant is trying to survive in the system. A mechanical, a pedantic, a myopic attitude of the court tends to thrown the litigation out of the Court and tends to shut the doors of the court upon him. Such an procedure compels the defendant to rush to this Court and this Court is unnecessarily being flooded by such litigation. In case the trial Courts were to be more sensitive to invoke its power under Order 9 Rule 13 of the Code, such needless litigation coming to this Court can be stopped.