This is a plaintiff's writ petition. He has instituted original suit no.646 of 1996 against the respondents herein for cancellation of sale deeds dated 9th of July, 1992 and 24th of October, 1996. The defendants filed their joint written statement but failed to appear subsequently and the trial Court passed an order on 12th of July, 2004 directing the suit to proceed exparte. An application to recall the said order was rejected by the trial Court on 29th of July, 2004. The suit was ultimately decreed exparte on 19th of May, 2007. The defendants filed an application dated 31st of May, 2007 under Order 9 Rule 13 C.P.C for setting aside the exparte decree dated 19th of May, 2007. The said application is still pending consideration before the trial Court although objection has been preferred by the petitioner on 2nd of April, 2008. Shortly thereafter, the defendants applied for amendment in the restoration application giving rise to the present writ petition. The said amendment application has been allowed on 23.1.2010 by the trial court and the order of the trial Court has been confirmed by the revisional Court on 12th of October, 2011.
Challenging the aforestated two orders one dated 23.1.2010 and another dated 12th of October, 2011, the present writ petition has been preferred.
Heard Sri B.B. Paul along with Sri A.P. Paul, learned counsel for the petitioner and Sri Rajesh Kumar Chauhan who has filed caveat for the respondents.
The learned counsel for the petitioner submits that the application under Order 9 Rule 13 C.P.C is not maintainable in view of the fact that the order to proceed exparte was challenged unsuccessfully before this Court in writ petition No.33965 of 2004. The said writ petition was rejected by this Court on 30th of October, 2006. Secondly, amendment in the restoration application amounts to setting up of a new case and therefore, the Courts below were not justified in permitting the amendment in the application to set aside the exparte decree. The learned counsel for the caveator, on the other hand, supports the impugned orders.
Considered the respective submissions of the learned counsel for the parties and perused the record.
Although the Court was not inclined to adjudicate the first point as the matter is still pending for consideration before the Courts below but on the insistence of learned counsel for the petitioner the Court is left with no option but to record its finding.
Taking the first point first, it may be noted that the writ petition was dismissed by this Court in view of the Apex Court judgment in the case of Arjun Singh Vs. Mohindra Kumar, AIR 1964 SC 993 wherein it has been laid down that where hearing is concluded and the case is adjourned merely for the purpose of pronouncing the judgment, the Order 9 Rule 7 C.P.C would have no application. The said writ petition was filed against the order dated 29th of July, 2004 whereby a date for delivery of judgement was fixed as the exparte hearing was concluded on 22nd of July, 2004.
Submission of the learned counsel for the petitioner that the judgment delivered by this Court in the aforestated writ petition bars the remedy of the defendants to file the application under Order 9 Rule 13 C.P.C has no substance. The remedy to file an application to set aside the exparte decree has been provided for under Order 9 Rule 13 C.P.C. Occasion for filing an application under the aforestated section would arise only when the exparte decree has been passed, as the present case is. A close reading of the judgment of the Apex Court in the case of Arjun Singh (supra) would show that in that very case similar argument was advanced which was not accepted and the Supreme Court by its ultimate paragraph-23 remanded the matter back to consider the application under Order 9 Rule 13 C.P.C for setting the exparte decree. Paragraphs-15 and 16 of the judgement of Apex Court in the case of Arjun Singh (supra) fully demonstrate that an order passed on an application under Order 9 Rule 7 C.P.C will not preclude the Court to consider the application under Order 9 Rule 13 C.P.C. The Apex Court has considered a very old decision of Madras High Court under old CPC and held that there are other decisions in which a similar view has been held to the effect that application under Order 9 Rule 13 C.P.C would be maintainable. It has noted that since for over a century from 1859, there has not been a single case in which the plea of res judicata as urged by the appellant therein which is similar to one urged by the petitioner herein has been upheld.
It is one thing to say that the application under Order 9 Rule 7 C.P.C is not maintainable but it does not follow that the application under Order 9 Rule 13 C.P.C would also not be maintainable. Both these provisions operate at different stages of suit proceedings and one does not bar the other provision. The Order 9 Rule 7 C.P.C is applicable at the stage before passing of decree and Order 9 Rule 13 C.P.C, is applicable after passing of the exparte decree.
Much emphasis was laid on B. Janakiramaiah Chetty Vs. A.K. Parthasarthi, 2003 All. CJ 1791 (paragraph 8 in particular). The said decision is not applicable even remotely to the facts of the present case. There the scope and ambit of Explanation to Order 17 Rule 2 CPC was up for consideration. No such controversy, as involved in the present case that the application under Order 9 Rule 7 C.P.C having been dismissed, the application under Order 9 Rule 13 C.P.C would not be maintainable, was involved there. This disposes of the first point for determination.
Now, coming to the second point, that the amendment sought for in the application under Order 9 Rule 13 could not be allowed as it amounts to 'pleading of a new case'.
The application has been filed on the allegations that 12th of July, 2004 was the date fixed in the suit and on that date the defendants' lawyer could not appear as he suddenly went out of station for some important work and no pairokar could appear on behalf of the defendants in the trial Court. The application filed by the plaintiff on 12th of July, 2004 was allowed exparte without giving an opportunity to the defendants and fixed 22nd of July, 2004 the date for recording the evidence. No opportunity was given to the defendants to file reply to the amendment sought for in the plaint by way of additional written statement vide para 7 of the application.
By way of amendment, the defendants want to add that due to lawyers' mistake it could not be mentioned earlier that the defendant no.1 Ram Veer who was looking after the case on behalf of the defendants was laid down with fever on the date fixed and he also could not appear.
The amendment sought for and allowed by the two Courts below is being challenged by the petitioner on the ground that it changes the nature of the case. The learned counsel for the petitioner referred certain rulings relating to the amendments of the pleadings of parties. It is not necessary to refer any of them as they are not applicable to the amendments sought for in a miscellaneous application. Even otherwise also, the argument of the petitioner that it changes the nature of case or any prejudice has been caused to him, is not correct. The amendment sought for is clarificatory in nature and it was applied for without any delay. The restoration application is dated 31st of May, 2007 wherein objections were filed by the plaintiff on 2nd of April, 2008 and the amendment application is dated 22nd of September, 2008. The orders passed by the two Courts below allowing the amendment is within their discretion and they have rightly exercised the discretion to advance the cause of justice. There is no question of any malafide or delay on the part of the respondent defendants. It appears that the petitioner who has obtained exparte decree is somehow or the other is not permitting the hearing of the application under Order 9 Rule 13 C.P.C and unnecessarily time of the Court has been wasted in these miscellaneous proceedings. The final disposal of the application under Order 9 Rule 13 C.P.C would have taken much lesser time. In exercise of writ jurisdiction this Court is not inclined to interfere in these interlocutory orders which otherwise also sub-serve the interest of justice.
I do not find any fault in the impugned orders allowing the amendment application. There is no merit in the writ petition. The writ petition is dismissed.
The trial Court is requested to decide the application under Order 9 Rule 13 C.P.C expeditiously preferably within a period of six months from the date of production of certified copy of this order.
(Prakash Krishna, J.) Order Date :- 10.2.2012 LBY