A Murugesan vs Smt. Jamuna Rani

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1545 OF 2019 [Arising out of S.L.P.(C) No.36394 of 2014]

A. Murugesan ...Appellant

Versus

Smt. Jamuna Rani ...Respondent

J U D G M E N T

R. SUBHASH REDDY,J.

1. Leave granted.

2. This civil appeal is preferred by the defendant, in

Original Suit No. 92/1997 on the file of Sub-Judge,

Chidambaram, aggrieved by the order dated 17.04.2014,

passed by the High Court of Judicature at Madras,

dismissing the Civil Revision Petition (NPD) No. 1202 of

2014. By virtue of the aforesaid order, the High Court has

confirmed the order of the Trial Court, dismissing the

application filed by the petitioner, under Order IX Rule

13 of CPC.

3. The respondent-plaintiff has filed the aforesaid suit Signature Not Verified Digitally signed by MADHU BALA for specific performance of the Agreement dated Date: 2019.02.14 10:32:55 IST Reason:

11.10.1995. It is a case of the respondent-plaintiff that

out of total consideration of Rs.3,00,000/-(Rupees Three 2

Lakhs), he has already paid Rs.2,25,000/-(Rupees Two Lakh

Twenty-Five Thousand) and in spite of his readiness to pay

the balance amount, the appellant-defendant is not ready

to execute the sale deed by receiving the balance

consideration amount. During the trial, the aforesaid suit

was listed for hearing on 16.03.2009. On the aforesaid

date, on the ground that there was no representation on

behalf of the appellant, the appellant was put ex-parte,

and ex-parte decree was passed, decreeing the suit.

4. The appellant-defendant has filed the application

under Order IX Rule 13 of CPC, for setting aside the

ex-parte decree in I.A. No. 117/2009. In the aforesaid

application, the case of the appellant was that on

16.03.2009, there was a boycott of all the courts on the

call of Bar Association, as such, all the advocates

boycotted the courts in the District of Cuddalore

including Chidambaram District. He has also pleaded that

as he was suffering from viral fever, he also did not

attend the court. It is a case of the appellant that in

spite of showing sufficient cause for not attending the

court on 16.03.2009, the Trial Court has erroneously

rejected the application filed under Order IX Rule 13 of

CPC.

5. The Trial Court, while considering the application 3

filed by the appellant herein, under Order IX Rule 13 of

CPC, has considered the past events in the suit stating

that the appellant is trying to protract the litigation

dismissed the application by order dated 30.06.2009.

Aggrieved by the said order, the appellant-defendant has

filed Civil Miscellaneous Appeal No. 15/2009 before the

Additional District Court/Fast Track Court No.1,

Chidambaram. Same was dismissed by order dated 13.07.2010.

The matter was further carried by way of Civil Revision

Petition No. 1202 of 2014 before the High Court, which

also ended in dismissal by order dated 17.04.2014.

6. We have heard the learned counsel for the appellant

as well as the learned counsel for the respondent and

perused the relevant material on record.

7. Mainly it is contended by learned counsel appearing

for the appellant that on 16.03.2009, there was a total

boycott of courts by the advocates in the District of

Cuddalore including Chidambaram District, therefore, his

counsel could not appear before the Court when the matter

was called. Further, it is submitted that even the

appellant was suffering from viral fever, as such, he also

could not appear on the said date. It is pleaded that

though there was sufficient cause shown, the Trial Court,

erroneously by considering the past events anterior to 4

16.03.2009, has dismissed the application. It is contended

that the appellate and the revisional courts also

committed same error in rejecting the plea of the

appellant by looking at the past events. It is mainly

contended that when the application is filed under Order

IX Rule 13 of CPC, the relevant consideration should have

been confined to whether the appellant herein has shown

any sufficient cause or not for not appearing in the

matter when it was called on 16.03.2009. It is submitted

that the reasons assigned in the impugned orders for

rejection of the application is irrelevant. In support of

his argument, learned counsel for the appellant has placed

reliance on the judgment of this Court in the case of G.P.

Srivastava vs. R.K. Raizada and Others reported in 2000(3)

SCC 54.

8. On the other hand, it is contended by the learned

counsel for the respondent that suit was filed by the

respondent for specific performance of the contract.

9. It is submitted that out of total consideration of

Rs.3,00,000/-(Rupees Three Lakhs), he has already paid

Rs.2,25,000/-(Rupees Two Lakh Twenty-Five Thousand) and

deposited the balance amount of Rs.75,000/-(Rupees

Seventy-Five Thousand) in the court. It is contended by

the learned counsel for the respondent that though the 5

suit was of the year 1997, the appellant-defendant tried

his best to prolong the litigation on one pretext or the

other. It is submitted that in view of the concurrent

findings recorded by the courts below, no case is made out

to interfere with the same.

10. We have considered the submissions of the learned

counsel appearing on both the sides and perused the order

of the Trial Court, rejecting the application filed by the

appellant under Order IX Rule 13 of CPC and further orders

passed in Civil Miscellaneous Appeal as well as in Civil

Revision Petition.

11. From a perusal of the order of the Trial Court, it is

clear that the Trial Court has taken into consideration

the past conduct of the appellant-defendant in the suit,

instead of confining the consideration as to whether the

appellant has shown sufficient cause or not for not

appearing in the matter on 16.03.2009. It is fairly well

settled that when an application is filed for setting

aside ex-parte decree under Order IX Rule 13 of CPC, the

only aspect which is required to be considered is whether

any sufficient cause is shown for absence in the matter

when the matter was called. Without recording the specific

finding, on the plea of the appellant that there was

sufficient cause, the Trial Court has committed error in 6

rejecting the application under Order IX Rule 13 of CPC.

Even the appellate and the revisional court have not

considered the matter in proper perspective and rejected

the claim of the appellant. The judgment in a case of G.P.

Srivastava (supra) supports the case of the appellant. In

the aforesaid judgment, the very issue was fallen for

consideration before this Court. The relevant paragraph

no.7 reads as under:

“7. Under Order IX Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case The “sufficient cause” for non- appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non- appearance of the defendant on the date fixed for hearing when ex pate proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time 7

specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.

12. The aforesaid view taken by this Court in the judgment

referred above supports the case of the appellant. It is

further brought to our notice that on the aforesaid date, i.e.,

16.03.2009, on which date the suit was listed for trial, in

view of the boycott of the courts by the advocates, all other

cases were adjourned and only this case was proceeded and ex-

parte decree was passed.

13. As the suit is for a substantive relief, i.e., for grant

of decree of specific performance, and further we are satisfied

that the appellant has shown sufficient cause for not appearing

in the matter when the matter was called on 16.03.2009, we are

of the view that it is a fit case to allow the application

filed by the appellant, by setting aside the impugned orders.

All the courts below committed error in rejecting the

application on the grounds which are not relevant to consider

the application filed under Order IX Rule 13 of CPC.

14. We are conscious of the fact that all the three courts

have held against the appellant, but if we allow the impugned

orders to stand, it will result in miscarriage of justice.

15. For the aforesaid reasons, the impugned orders are set

aside, consequently I.A. No.117/2009 filed in O.S. No.92 of

1997 on the file of Sub-Judge, Chidambaram, stands

allowed.

8

16. As the suit is of the year 1997, we direct the Trial

Court to dispose of the same as expeditiously as possible

preferably within a period of six months from today. Both

the parties shall co-operate for proceeding with the trial

and for expeditious disposal in the suit.

17. It is also made clear that we have not expressed any

opinion on the merits of the matter. It is open for the

Trial Court to decide the issues for consideration

independently, uninfluenced by any of the observations

made in the impugned order or the order passed by this

Court.

18. This appeal is, accordingly, allowed, with directions

as indicated above. No order as to costs.

.................... J.

[R. Banumathi]

.................... J.

[R. Subhash Reddy]

New Delhi;

February 07, 2019