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CASE NO.:

Appeal (civil) 2494 of 2007

PETITIONER:

Lal Devi and another

RESPONDENT:

Vaneeta Jain and others

DATE OF JUDGMENT: 14/05/2007

BENCH:

B.P. SINGH & HARJIT SINGH BEDI

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO.2494 of 2007

(Arising out of SLP) No.5817 of 2006)

B.P. SINGH, J.

1. Special Leave granted.

2. This appeal is directed against the judgment and order of the

High Court of Himachal Pradesh dated August 29, 2005 and

September 22, 2005 in R.F.A. No.133 of 1998. By the impugned

judgment and order the High Court dismissed the appeal preferred by

the defendants and affirmed the ex-parte decree for specific

performance passed by the Trial Court by its impugned judgment and

decree of January 7, 1998.

3. In view of the order that we propose to pass it is not

necessary for us to consider in detail the facts of the case and the

issues that arise in the suit, because we have reached the conclusion

that the Trial Court was not justified in passing an ex-parte decree in

the facts and circumstances of the case. We shall, therefore, notice

the facts of the case only in so far as they are relevant for disposal of

this appeal.

4. It is not in dispute that late P.S. Multani (Defendant) and

late Jawahar Lal Jain (Plaintiff) were good friends. Late P.S. Multani

owned a property known as Brombley Estate in Shimla which

comprised of about 20 bighas of land with house and orchard

(hereinafter referred to as "the property").

5. The case of the plaintiff late Jawahar Lal Jain was that an

agreement to sell the property to him was executed by late P.S.

Multani on March 26, 1982 for a sum of Rs.4,20,000/-. A sum of

Rs.40000/- was paid as earnest money. Despite his best efforts late

P.S. Multani did not execute the sale deed. A suit for specific

performance of agreement was filed before the High Court at Shimla

on March 26, 1985. Ten witnesses were examined on behalf of the

plaintiff. PW-8, S.C. Dave was under cross-examination which

remained inconclusive and was deferred to August 27, 1993. The

matter was subsequently adjourned for production of documents and

record etc.. The matter was listed before the Court on several dates

and ultimately the matter came up before the Court on May 17, 1995.

On that date no one appeared on behalf of the parties. It appears that

some time in 1995 in view of the enhancement of the pecuniary

jurisdiction of the Court of the District Judge, the matter was

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transferred and assigned to the Court of District Judge, Shimla for

disposal. The record of the case also shows that thereafter the matter

was fixed before the Trial Court on several dates and ultimately came

up before the Court on January 7, 1998. On that day while the

plaintiff's witnesses were present as also his counsel, no one appeared

on behalf of the defendant. PW-8 a witness who had been partly

cross-examined was present but there was no one to further cross-

examine him. Witness Rajinder Singh Sethi was examined as PW-10.

The order of the Trial Court passed on that day is quoted below in

extenso:-

"7.1.1998: Present: Plaintiff's counsel Shri Deepak

Gupta.

Witness PW-8 S.C. Dave and witness Shri Rajinder

Singh Sethi.

None for the defendant. Hence proceeded ex-parte.

There is no one to further cross-examine PW-8

Shri S.C. Dave. Statement of Shri Rajinder Singh

Sethi PW-10, has been recorded. Arguments heard.

Put up for pronouncement of judgment in the after

noon.

Sd/- District Judge, Shimla.

7.1.1998: (Case called again for the pronouncement

of the judgment)

After the evidence had been recorded and the

ex-parte arguments had been heard and even judgment

had been dictated to the P.A., an application was

moved by the defendant's counsel Shri R.L. Sood

making prayer for the re-call of the order for

pronouncement of judgment. Since the application

has been moved after the hearing stood completed and

the case was adjourned to post lunch session for

pronouncement of judgment, the same is not

maintainable in view of law laid down by the Hon'ble

Supreme Court in "Arjun Singh Vs. Mohindra Kumar

and others" A.I.R. 1964 S.C.993. Moreover, no

ground, leave alone a sufficient ground, has been

shown in the application for the absence of the

defendant and/or his counsel when the case was

called.

Per separate judgment placed on the file, the

suit is decreed. Formal decree sheet be drawn

accordingly. Record be completed and consigned to

the record room".

6. From the order aforesaid it would appear that the learned

District Judge decided to proceed ex-parte since neither the defendant

nor his counsel was present to cross-examine the witnesses examined

by the plaintiff. After closing the cross-examination of PW-8 and

recording the statement of PW-10, the Court proceeded to hear

arguments advanced by Counsel for the plaintiff. After the arguments

were heard the Court directed that the matter be put up for

pronouncement of judgment in the after noon. It also appears from

the order aforesaid that the learned District Judge had dictated the

judgment to his personal assistant but before he could pronounce the

judgment counsel for the defendant made a prayer for recall of the

order for pronouncement of judgment. An application under Section

151 of the Code of Civil Procedure was filed for setting aside the

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order to proceed ex-parte. This application was also disposed of by

the same order holding the same to be not maintainable. The Court

further observed that no sufficient ground had been shown for the

absence of the defendant and/or his counsel when the case was called.

The learned District Judge proceeded to deliver his judgment

decreeing the suit for specific performance.

7. It is not disputed that on January 9, 1998 an application

under Order IX Rule 13 C.P.C. read with Section 151 was filed for

setting aside the ex-parte decree dated January 7, 1998. However, the

said application was not pressed by the defendant in view of the fact

that an appeal had been filed in the High Court against the ex-parte

decree dated January 7, 1998.

8. During the pendency of the appeal before the High Court

both the plaintiff Jawahar Lal Jain and the defendant P.S. Multani

died. The legal representatives of the plaintiff and defendant were

brought on record to pursue the appeal. The legal representatives of

the deceased/defendant are the appellants before this Court while the

legal representatives of the plaintiff are the respondents herein.

9. From the application filed for setting aside the ex-parte

decree it appears that on that day i.e. on January 7, 1998 both the

advocates engaged by the defendant were busy in the High Court and

on account of some misunderstanding that the other would be

attending the Court of the District Judge, neither of them was present

when the matter was taken up by the learned District Judge at about

11.30 a.m.. On account of their absence the learned District Judge

decided to proceed ex-parte. When the advocate for the defendant

was informed that the matter had been called out for hearing by the

learned District Judge he rushed from the High Court to appear before

the District Judge but by the time he reached the Court of the District

Judge at about 12.05 p.m. he learnt that the Court had recorded the

evidence and also heard arguments in the matter and that the matter

was to be put up later in the day for pronouncement of the judgment.

In these circumstances, an application under Section 151 C.P.C was

filed praying that the order may be recalled and the witnesses be re-

examined.

10. It was, therefore, submitted before us on behalf of the

appellants that having regard to the facts and circumstances of the

case the learned District Judge was not justified in proceeding with

the matter ex-parte, particularly when counsel for the defendant

appeared before him soon thereafter and made a request to re-call the

order. This request was made before the judgment was pronounced.

However, the learned District Judge proceeded to pass an ex-parte

decree on the same day.

11. From the reply filed by the plaintiff/respondents to the

application filed by the appellants for setting aside the ex-parte decree

it appears to be the case of the respondents that the case was called out

at 10.30 a.m. in the Court of the learned District Judge and since no

one was present on behalf of the defendant it was again called out at

about 11.30 a.m.. Since neither the defendant nor his counsel was

present when the matter was again called out the Court decided to

proceed ex-parte, and accordingly, after hearing arguments reserved

judgment to be delivered later in the day. The plaintiff submitted that

the counsel engaged by the plaintiff could have sent one of his juniors

to the Court of the learned District Judge to make a request for

accommodating them on account of their pre-occupation with matters

before the High Court. The minimum courtesy which the defendant

was expected to show to the Court was also not shown. It was,

therefore, submitted that in the absence of the defendant and his

counsel, and in the absence of any request on their behalf, the Court

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had no option but to proceed ex-parte.

12. Learned counsel for the parties have addressed us at length

and cited several authorities in support of their respective

submissions. We are satisfied that having regard to the facts and

circumstances of the case this appeal ought to be allowed and the ex-

parte decree set aside.

13. It is no doubt true that when the suit was called out before

the Court of the learned District Judge counsel for the parties ought to

have been present in Court. If on account of any unforeseen or

unavoidable reason it was not possible for the defendant or his

counsel to be present in Court, courtesy demanded that a

representation ought to have been made before the Court by any other

counsel so that the Court was informed that the counsel engaged were

busy in the High Court. If such a request was made, we have no

doubt that the learned District Judge would have accommodated

counsel for the defendant. It is not unusual for the lower Courts to

accommodate counsel on whose behalf a representation is made about

their absence on account of remaining pre-occupied before the High

Court. We have no doubt that the counsel for the defendant were

remiss in not showing even the minimum courtesy expected of them.

It was argued on behalf of the appellants before us that the two

advocates engaged by the defendant miscalculated and under the

impression that the other would be attending the Court neither of them

made an effort to send someone to the Court of the District Judge to

make a representation on their behalf.

14. However, it is equally true that soon after the Court heard

arguments and reserved judgment to be delivered later in the day,

counsel for the defendant appeared before him and filed an application

and prayed that the order may be recalled and the matter may not be

proceeded with ex-parte. The District Judge however refused to grant

the prayer and held the application to be not maintainable. He

thereafter proceeded to pass a judgment and decreed the suit for

specific performance on the same day.

15. Having regard to the totality of circumstances we are of

the view that in the interest of justice this appeal must be allowed.

The learned District Judge recorded evidence, heard arguments and

posted the matter later in the day for delivery of judgment. If the

Court had adjourned the proceedings to another day after deciding to

proceed ex-parte, the defendant could have applied for being

permitted to participate in the proceedings. In this case since

everything happened on the same day the defendant did not get an

opportunity to do so. The learned District Judge decided to proceed

ex-parte. It thereafter examined the witnesses present in Court and

proceeded to hear arguments. It reserved its judgment to be

pronounced later in the day. Even before he could pronounce

judgment counsel for the defendant had moved an application before

him for recall of the order. It is true that in view of the law laid down

by this Court in Arjun Singh (supra) the learned District Judge could

not have entertained an application under Order IX Rule 7 C.P.C. We

have also no hesitation in observing that counsel of the defendant

were not careful enough to inform the learned District Judge about

their pre-occupation before the High Court which prevented them

from being present in his Court when the case was called for hearing.

But the passing of an ex-parte decree in a case of this nature is too

harsh a consequence to be upheld. The defendant cannot be made to

suffer an ex-parte decree particularly when he was not at fault, having

duly instructed his counsel to appear before the Court of the learned

District Judge.

16. We are not delving into the technicalities of the legal

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questions argued before us because we are of the view that in the facts

of this case the interest of justice demands that the ex-parte decree be

set aside. We appreciate that the learned District Judge could not

entertain an application under Order IX Rule 7 C.P.C., and even the

application under Order IX Rule 13 was dismissed as not pressed.

But nothing prevented the High Court from setting aside the ex-parte

decree in the appeal preferred against it.

17. Shri K.K. Venugopal, learned senior counsel appearing on

behalf of the respondents submitted before us that if the ex-parte

decree is set aside, the appellants may take undue advantage of the

death of the defendant. They may now seek amendment of the written

statement and set up fresh pleas. Counsel referred to the decree

suffered by the wife of the defendant Smt. Lal Devi, appellant No.1

herein in Civil Suit No.259 of 1999 dated April 6, 2002 whereby a

decree for permanent prohibitory injunction restraining the defendant

No.1 from selling or conveying the property mentioned therein has

been passed. He, therefore submitted that the setting aside of the ex-

parte decree may give to the appellants an undue advantage and they

may raise all sorts of pleas to defeat the just claim of the respondents.

They may find ways and means of delaying the suit which has already

been considerably delayed.

18. We have no doubt that the Courts are not helpless. When

parties adopt unfair or delaying tactics Courts have abundant powers

to deal with such situations. We direct the Court of District Judge who

shall try the suit to proceed with utmost expedition so as to conclude

the suit within a period of six months from the date on which the

parties appear before him. He shall not grant adjournment unless it

becomes absolutely necessary. To the extent possible he shall

proceed with day-to-day hearing of the suit.

19. In the result this appeal is allowed and the impugned

judgment and order of the High Court as also the ex-parte decree

passed by the Court of the learned District Judge on January 7, 1998

are set aside. The Trial Court is directed to proceed with the suit in

accordance with law so as to dispose it of within a period of six

months from the day of which the parties appear before it pursuant to

this Court's order.

20. The parties are directed to appear before the Court of the

learned District Judge for further directions on June 11, 2007.