K.K. Sasidharan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: D. Geetha For Respondents/Defendant: AR.L. Sundaresan, Senior Counsel for S. Madhan Kumar Subject: Civil Catch Words Mentioned IN Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order IX Rule 13; Code of Civil Procedure, 1908 (CPC) - Order IX Rule 6; Code of Civil Procedure, 1908 (CPC) - Order IX Rule IX; Code of Civil Procedure, 1908 (CPC) - Order VIII Rule 10; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 4; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 5; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 9, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 10, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 11, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 12, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 13, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 14, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 15, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 16, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 17, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 18, ; Code of Civil Procedure, 1908 (CPC) - Order XX Rule 19, ; Code of Civil Procedure, 1908 (CPC) - Order XXII Rule 9; Code of Civil Procedure, 1908 (CPC) - Section 2; Code of Civil Procedure, 1908 (CPC) - Section 2(9); Code of Civil Procedure, 1908 (CPC) - Section 33; Code of Civil Procedure, 1908 (CPC) - Section 96(2); Limitation Act, 1963 - Section 5 Cases Referred:
G. Ramegowda, Major and Ors vs. Special Land Acquisition Officer, Bangalore MANU/SC/0161/1988; Special Tehsildar, Land Acquisition, Kerala vs. K.V. Ayisumma MANU/SC/0694/1996; N. Balakrishnan vs. M. Krishnamurthy MANU/SC/0573/1998; M.K. Prasad vs. P. Arumogam MANU/SC/0398/2001; Ram Nath Sao @ Ram Nath Sahu and Ors. vs. Gobardhan Sao and Ors. MANU/SC/0135/2002; State of Nagaland vs. Lipok AO and Ors. MANU/SC/0250/2005; Parimal vs. Veena @ Bharti MANU/SC/0105/2011; S. Ganesharaju (D) Thr. L.Rs. and Anr. vs. Narasamma (D) Thr. L.Rs. and Ors. MANU/SC/0379/2012; GMG Engineering Industries and Ors. vs. ISSA Green Power Solution and Ors. MANU/SC/0632/2015; Executive Officer, Antiyur Town Panchayat vs. G. Arumugam MANU/SC/0050/2015; Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan and Ors. MANU/SC/1018/2002; Ramesh Chand Ardawatiya vs. Anil Panjwani MANU/SC/0387/2003; Meenakshisundaram Textiles, rep by its Managing Director vs. Valliammal Textiles Ltd. MANU/TN/1715/2011; Maya Devi vs. Lalta Prasad MANU/SC/0122/2014 Disposition:
Petition Allowed ORDER K.K. Sasidharan, J.
1. The learned Subordinate Judge, Ramanathapuram, dismissed the application filed by the petitioner for condoning the delay in filing first appeal, notwithstanding the fact that the first respondent was given a judgment and decree by the Trial Court, declaring her title, without producing any document relating to title or possession and without any discussion on the merits of the matter. The judgment and decree of declaration was given by the Munsif Court with respect to a property shown in the revenue records as Government land and earmarked to be used as parking ground for parking the vehicles of pilgrims visiting the famous Ramanathaswamy Temple at Rameshwaram. In short, the learned District Munsif punished the petitioner for its failure to appear before the Court by passing an "automatic decree", otherwise called as "default decree".
SUMMARY OF FACTS:
2. The first respondent filed a suit in O.S. No.110 of 2000 against the petitioner and respondents 2 and 3 before the learned District Munsif, Ramanathapuram. The first respondent, in the said suit, claimed that the suit property absolutely belongs to her and as such, she is entitled to a decree of declaration and consequential injunction. The defendants, in the suit including the petitioner herein, failed to contest the matter and the same resulted in passing an ex-parte judgment and decree on 28 February, 2001.
3. According to the petitioner, Rameshwaram Municipality, was originally a Town Panchayat. Rameshwaram Town Panchayat was, subsequently, upgraded as a Municipality, taking into account the importance of the pilgrim city. The then Executive Officer miserably failed either to defend the suit or to file an appeal, within the time permitted by law.
4. The petitioner, after assuming Office as Commissioner, Rameshwaram Municipality, found that the first respondent made a wrongful claim to grab the property owned and possessed by the local body and earmarked for a parking purpose. The petitioner immediately initiated action to file appeal before the first appellate Court.
5. The Commissioner, in his affidavit filed in support of the application, indicated the details with regard to the nature of property, ownership of the land, the public purpose and the reasons for the delay in filing appeal.
6. The application in I.A. No.4 of 2009 was opposed by the first respondent.
7. The learned Appellate Judge dismissed the application primarily on the ground that the petitioner failed to explain each day's delay in preferring the appeal. The application was dismissed, by order dated 07 August, 2009. Feeling aggrieved by the said order, Rameshwaram Municipality, represented by its Commissioner, is before this Court.
RIVAL CONTENTIONS:
8. The learned counsel for the petitioner contended that the property in question absolutely belongs to the local body. The revenue records clearly show the ownership of the land. According to the learned counsel, the then Executive Officer and all others connected with the case in collusion with the first respondent failed to file written statement and the same resulted in passing an ex-parte decree. According to the learned counsel, the petitioner verified the revenue records, and it was noticed that the land earmarked for parking vehicles in the temple city of Rameshwaram was claimed by a person and she obtained a decree of declaration. The learned counsel contended that the petitioner has satisfactorily explained the reasons for the delay. It was further contended that the learned Appellate Judge, without considering the fact that the first respondent initiated a vexatious litigation with a view to grab the land owned by the local body, dismissed the application, without any valid reason.
9. The learned Senior Counsel for the first respondent supported the order passed by the learned Appellate Judge. According to the learned Senior Counsel, the petitioner was expected to explain the enormous delay in preferring the first appeal. The Municipality slept over the matter and finally, filed the application with a delay of 2757 days. The learned Judge was, therefore, correct in dismissing the application.
ANALYSIS:
10. The land in Survey No. 132 having an extent of 1 acre within the jurisdiction of Rameshwaram Municipality is classified as a Government land. The land was allotted to Rameshwaram Town Panchayat by the Government, with a condition to be developed as a parking area to cater to the needs of the pilgrims visiting the temple town.
11. The first respondent claimed that she is the owner of the property in question and it was illegally occupied by the local body. The first respondent, therefore, filed the suit in O.S. No.110 of 2000 before the learned District Munsif, Ramanathapuram. The petitioner and respondents 2 and 3 were the parties to the suit. The defendants failed to file written statement, within the time prescribed and as such, the Trial Court declared them ex-parte. Thereafter, the Trial Court passed an ex-parte judgment and decree dated 28 February, 2001.
12. The judgment and decree passed by the Trial Court would clearly show that it was only a default decree. The learned District Munsif failed to make any attempt to consider the merits of the claim made by the first respondent and to pass a judgment and decree on merits.
13. The first respondent claimed that the property belongs to her. The learned Trial Judge simply marked the documents as exhibits and decreed the suit stating that "P.W.1 examined, exhibits marked and suit is decreed".
14. The suit property is situated just adjacent to the Ramanathaswamy Temple at Rameshwaram. The Rameshwaram Municipality is a temple city and it attracts lakhs of devotees visiting Sri.Ramanathaswamy Temple.
15. The affidavit filed by the petitioner shows that there used to be huge traffic congestion in Rameshwaram. Since the first respondent obtained a decree in respect of the land earmarked as parking place, it is not possible to develop the land now as a parking place. The Madurai Bench of Madras High Court in W.P. (MD)No.6793 of 2012 directed the temple administration and the Rameshwaram Municipality to provide amenities to the pilgrims. In fact, the High Court appointed Advocate Commissioners to visit the temple and take immediate action to provide various amenities to the pilgrims, which includes proper place for parking.
16. The petitioner, after realizing the fact that the Municipal land earmarked for parking, was the subject matter of the suit in O.S. No.110 of 2000, immediately filed an appeal along with an application in I.A. No.4 of 2009 before the first Appellate Court.
17. The Commissioner, Rameshwaram Municipality, in his affidavit filed in support of the application in I.A. No.4 of 2009, explained the delay in preferring the appeal. The learned Appellate Judge wanted the petitioner to explain each day's delay. While considering the application, the learned Appellate Judge failed to take into account the fact that the petitioner has taken up a serious contention that the land owned by the Municipality was grabbed by the first respondent by filing a vexatious suit without proper documents and the Trial Court decreed the said suit, without addressing the issues.
18. The core question is as to whether the learned Appellate Judge was correct in dismissing the application filed by the petitioner to condone the delay of 2757 days in preferring the first appeal.
19. The petitioner is a local body. The Commissioner, in his affidavit filed in support of the application, very clearly stated that the inaction on the part of the erstwhile officers of the Municipality contributed for the delay. According to the petitioner, the inaction of those who were in-charge of the litigation, should not deprive the Municipality of a valuable property, which is the only suitable place available near the temple to be used as a parking place.
20. It is the contention of the petitioner that not even a scrap of paper was produced by the first respondent to prove her title or possession. The Municipality is in possession of property. The first respondent has not filed any suit for recovery of possession. The value of the property is stated to be more than Rs.3 Crores. The first respondent succeeded in obtaining an ex-parte decree solely on account of the failure on the part of the petitioner and respondents 2 and 3 to file written statement.
21. In short, the first respondent obtained an ex-parte decree, without considering the merits of the matter. In case delay is not condoned, the Appellate Court would be denied of an opportunity to consider the validity and correctness of the ex-parte judgment and decree in O.S. No.110 of 2000. The first respondent would be in a position to enjoy the fruits of the decree even without producing supportive documents to show her ownership and possession.
22. When the Government property is involved and there is an element of public interest, necessarily, Court should take note of such events, while considering the application to condone delay. The failure on the part of the officials in-charge of the litigation or their collusive action should not deprive the Municipality of a valuable piece of land earmarked for public purpose.
THE AUTHORITIES:
23. The Supreme Court in G.Ramegowda v. Spl. Land Acquisition Officer [MANU/SC/0161/1988 : 1988(2) SCC 142], indicated that in respect of Government litigation, the Court should show certain amount of latitude. The relevant observation reads thus:
"15. In litigation to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.
16. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it.
17. Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have 'a little play at the joints'. Due recognition of these limitations on Governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law officers of the Government placed the Government in a predicament and that it was one of those cases where the mala fides of the officers should not be imputed to Government."
24. The Supreme Court in Spl. Tehsildar, L.A. Kerala v. K.V. Ayisumma [MANU/SC/0694/1996 : 1996(10) SCC 634] observed that it would be very difficult for the Government to explain the day-to-day delay. The Supreme Court said:
"2. It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. The transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice. It would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the Court would be pragmatic but not pedantic."
25. The Supreme Court in N.Balakrishnan v. M.Krishnamurthy [MANU/SC/0573/1998 : 1998(7) SCC 123], observed that the superior Court would be free to consider the cause shown for the delay afresh and to come to its own finding.
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court."
26. The Supreme Court in M.K. Prasad v. P.Arumugam [MANU/SC/0398/2001 : 2001(6) SCC 176], while considering the question regarding delay in applying for setting aside the ex-parte decree, observed that the Court ought to keep in mind the judgment impugned in the matter, the extent of property involved and the stake of parties, while deciding an application to set aside the ex-parte decree.
27. The Supreme Court in Ram Nath Sao v. Gobardhan Sao [MANU/SC/0135/2002 : 2002(3) SCC 195], explained the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963. The Supreme Court very clearly observed that explanation for the delay should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case. The Supreme Court said:
"12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the list terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."
28. The Supreme Court in State of Nagaland v. Lipok AO [MANU/SC/0250/2005 : 2005 (3) SCC 752], indicated that the merits should be preferred and the case should not be turned down on technicalities of delay in presenting the appeal. The relevant observation reads thus:
"13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal."
15. It is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay - intention or otherwise- - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factor which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit..................."
29. The Supreme Court in Parimal vs. Veena [MANU/SC/0105/2011 : 2011(2) Scale 302], explained the concept of "sufficient cause". The Supreme Court said:
"9. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously.
11. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it."
30. The Supreme Court in S.Ganesharaju vs. Narasamma [MANU/SC/0379/2012 : 2012(4) Scale 152], observed that matters should be heard on merits rather than shutting the doors at the threshold. The relevant observation reads thus:
"15. The expression "sufficient cause" as appearing in Section 5 of the Indian Limitation Act. 1963, has to be given a liberal construction so as to advance substantial justice.
16. Unless Respondents are able to show malafide in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by.
17. Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly.
18. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate.
19. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter."
31. In GMG Eng. Industries vs. ISSA Green Power Solution [MANU/SC/0632/2015 : 2015(6) Scale 551], the Supreme Court observed that the term "sufficient cause" must receive liberal construction.
"8. It is well settled that the expression 'sufficient cause' is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bonafide is imputable to the Appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence."
RECENT DECISION IN RESPECT OF A SIMILAR MATTER:
32. In Executive Officer, Antiyur Town Panchayat vs. G.Arumugam, [MANU/SC/0050/2015 : 2015(3) SCC 569], the Hon'ble Supreme Court considered a similar case.
33. In G.Arumugam's case, the suit land was classified as Natham Poramboke and possession and records of title are in the name of appellant Town Panchayat. The Trial Court dismissed the suit filed by the respondent for declaration of title and possession. The first Appellate Court allowed the appeal and suit was decreed. The Executive Officer, Antiyur Town Panchayat, Erode District, Tamil Nadu, who took charge when the execution petition was filed, initiated action to file second appeal. He filed an application to condone the delay of 1373 days in filing the second appeal. The High Court dismissed the application and refused to condone the delay. While allowing the appeal filed by the Panchayat, the Supreme Court narrated the facts and observed thus:
"2. It appears, no steps were taken by the Executive Officer of the Panchayat at the relevant time. When the Executive Officer, at the time of filing the second appeal, came to know of the proceedings when steps for eviction were taken in execution, he immediately took steps and filed an application on 26.10.2004 for certified copy of the judgment and decree. The same were issued on 15.12.2004, and after obtaining the necessary sanction and on completing the other procedural formalities, the second appeal was filed on 05.01.2005 along with application for condonation of delay. By the impugned order, the High Court declined to condone the delay. According to the High Court, the delay is not properly explained. It is also observed in the impugned order that though the certified copies were issued on 15.12.2004, the second appeal is filed only on 05.01.2005 and that there is no explanation even for that delay.
3. In the additional affidavit filed on behalf of the Appellant on 12.12.2006, it is brought to the notice of this Court that Shri K.G. Ramasamy, who was working as Executive Officer of the Panchayat at the relevant time was suspended from service w.e.f. 12.07.2002 on allegations of corruption. Be that as it may, after going through the records and after hearing the counsel on both sides, we are satisfied that the delay occasioned only on account of the deliberate lapses on the part of the Executive Officer of the Panchayat at the relevant time. Who else are involved in the process, is not quite clear.
4. As held by this Court in State of Nagaland v. Lipok Ao and Ors. MANU/SC/0250/2005 : (2005) 3 SCC 752, the court must always take a justice-oriented approach while considering an application for condonation of delay. If the court is convinced that there had been an attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situations, condone the delay, howsoever huge may be the delay, and have the matter decided on merits.
5. Accordingly, we set aside the impugned order and condone the delay of 1373 days in filing the second appeal. The case is remitted to the High court for further consideration in accordance with law. The Interlocutory Application No. 2 of 2014 is accordingly disposed of."
EX-PARTE JUDGMENT AND DECREE -
NECESSITY TO RECORD FINDINGS ON MERITS:
34. The Trial Court passed the judgment and decree without analyzing the facts of the case or documents relating to title. The learned Trial Judge decreed the suit in a routine manner presumably under the impression that in case the defendants are set ex-parte, the suit should be decreed as a matter of course without testing the bona fides of the claim made by the plaintiff.
35. The Supreme Court in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan [MANU/SC/1018/2002 : 2003(1) SCC 197], held that judgment should contain the issues and findings on such issues. The relevant paragraph reads thus:
10...Order XX requires a judgment to contain all the issues and findings or decision thereon with the reasons therefore. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid. Rules 9 to 19 of Order XX are illustrative of contents of decrees in certain specified categories of suits. The very obligation cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted or other determination of the suit. The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. A self-contained decree drawn up in conformity with the judgment would exclude objections and complexities arising at the stage of execution.
36. The Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani [MANU/SC/0387/2003 : AIR 2003 SC 2508], while considering the provisions of Order IX Rule 6 and Order VIII Rule 10 of the Code of Civil Procedure, observed that even if the suit proceeds ex parte under Order IX Rule 6, the necessity of proof by the Plaintiff of its case cannot be dispensed with. The Supreme Court observed as under:
33...But there is substance in the other limb of this submission made by the learned senior counsel for the Defendant-Appellant. Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the Code of Civil Procedure is attracted and the Court acts thereunder, the necessity of proof by the Plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the Plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the Plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX Rule 5. Yet the trial Court would scrutinise the available pleadings and documents, consider the evidence adduced, and would do well to frame the 'point for determination' and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the Defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.
37. In Meenakshisundaram Textiles vs. Valliammal Textiles, [MANU/TN/1715/2011 : 2011(3) CTC 168], a Division Bench of this Court held that even an ex-parte judgment should contain reasons. The relevant portion of the judgment reads thus:
"6. In terms of the above provisions, every judgment should contain a concise statement of the case, the points for determination, decision thereon and the reasons for such decision. A judgment which does not contain the bare minimum facts, the point for determination, the evidence adduced and the application of those facts and evidence for deciding the issue would not qualify it to be called as "judgment". The judgment should contain the brief summary of the facts, the evidence produced by the plaintiff in support of his claim and the reasoning of the learned Judge either for decreeing the suit or its dismissal. The Civil Procedure Code does not say that the Court is bound to grant a decree in case the defendant is absent. Judgment means cognitive process of reading a decision or drawing conclusion. Judgment is the basic requirement for a court and it means a decision or conclusion reached after consideration and deliberation. To put it differently, the basics of a judgment are to support by most cogent reasons that suggest themselves the final conclusion at which the Judge has conscientiously arrived.
16. Code of Civil Procedure does not define either an ex parte judgment or an ex parte decree. It refers only to a judgment and a decree. In the event a judgment is rendered when the defendant fails to defend the suit by his absence, that judgment is known to be an ex parte judgment and the decree drawn on the basis of that judgment is known as an ex parte decree. Hence, even for an ex parte judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the Court has applied its mind to the pleading, relief claimed thereunder, the evidence and the conclusion arrived at by the Court on the above.
20. It is also relevant to point out that under Section 96(2) of the Code of Civil Procedure, an appeal may lie from an original decree passed ex parte. Two remedies are available to an aggrieved person to question the ex parte decree. One is that he may file an application to set aside the ex parte decree as provided under Order IX Rule 13 of Code of Civil Procedure. In such event, the Court which passed the judgment and decree will have to consider the reasons for setting aside such judgment and decree, which may be more or less the explanation as to the failure of nonappearance. The other remedy is that he may prefer an appeal under Section 96(2) and in such event, the appellate Court should necessarily go into the merits and find out whether the decree could be set aside or not. In case an appeal is laid, in the absence of reasons in the judgment, the appellate Court has to necessarily remand the case to the trial Court for fresh consideration. For that reason, the judgment should contain the reasons and should be in conformity with the provisions of
Section 2(9) read with Order XX Rule 4 of the Code of Civil Procedure."
38. Most recently, the Supreme Court in Maya Devi vs. Lalta Prasad [MANU/SC/0122/2014 : 2015(5) SCC 588] held that the absence of defendant to contest the suit does not invite a punishment in the form of an automatic decree. The Supreme Court said:
"41. The absence of the Defendant does not absolve the Trial Court from fully satisfying itself of the factual and legal veracity of the Plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the Trial Court as well as the Executing Court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff. Reference to Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Company Limited, will be sufficient. The failure to file a Written Statement, thereby bringing Order VIII Rule 10 of the Code of Civil Procedure into operation, or the factum of Defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order VIII Rule 10 Code of Civil Procedure and on the invocation of Order IX of the Code of Civil Procedure, the Court is nevertheless dutybound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted."
39. The ex-parte judgment and decree, in the subject case, would not satisfy Sub-Sections (2) and (9) of
Section 2 and Section 33 of Code of Civil Procedure, 1908. There was no judicial determination at all by the learned Trial Judge. The judgment and decree passed by the learned Trial Judge does not contain any indication that the Court has applied its mind to the facts of the case to resolve the matter in dispute. This aspect was not considered by the learned Appellate Judge, while rejecting the application filed by the petitioner to condone the delay. I am of the view that a serious miscarriage would result by not condoning the delay and permitting the ex-parte judgment to remain. I am, therefore, of the view that interest of justice would be sub-served only by allowing the application filed by the petitioner.
40. In the result, the order dated 07 August, 2009 is set aside. The application in I.A. No.4 of 2009 is allowed.
DISPOSAL:
41. The learned Subordinate Judge, Ramanathapuram, is directed to number the appeal, within three days from the date of receipt or production of a copy of this order and decide the matter, in the light of the judgments of the Supreme Court in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan [MANU/SC/1018/2002 : (2003) 1 SCC 197], Ramesh Chand Ardawatiya v. Anil Panjwani [MANU/SC/0387/2003 : AIR 2003 SC 2508], Maya Devi vs. Lalta Prasad [MANU/SC/0122/2014 : 2015(5) SCC 588] and the Division Bench judgment in Meenakshisundaram Textiles vs. Valliammal Textiles, [MANU/TN/1715/2011 : 2011(3) CTC 168], cited supra. There shall be a further direction to dispose of the matter, as expeditiously as possible and in any case, within a period of one month from the date of numbering the appeal.
42. In the upshot, I allow the Civil Revision Petition. No costs. Consequently, the connected miscellaneous petition is closed.
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