N.Lakshmanasamy ... Petitioner in all CRPs Vs.
S.venkatesan ... Respondents in all CRPs Common Prayer: Petitions filed under
Section 115 of Cr.P.C. against the order and decretal order dated 11.4.2008 made in I.A.Nos.280/2007, 282/2007, 283/2007 and 281/2007 respectively in I.A.Nos.62/2007, 64/2007, 65/2007 and 63/ 2007 in O.S.Nos.33/2005,48/2006, 49/2006 and 34/2005 respectively on the file of the Principal District Judge, Puducherry.
For Petitioner : Mrs.M.E.Raniselvam For M/s.T.Dhanyakumar (in all CRPs) For Respondents : Ms.A.Shanmugapriya For M/s.V.Raghavachari (in all CRPs) COMMON ORDER C.R.P.No.1810 of 2008:
The revision petitioner/petitioner/defendant has projected this civil revision petition as against the order dated 11.04.2008 in I.A.No.280 of 2007 in I.A.No.62 of 2007 in O.S.No.33 of 2005 passed by the learned Principal District Judge, Puducherry in dismissing the application praying to set aside the ex parte order of dismissal dated 14.09.2007 passed in I.A.No.62 of 2007 in O.S.No.33 of 2005.
C.R.P.No.1811 of 2008:
The revision petitioner/petitioner/defendant has projected this civil revision petition as against the order dated 11.04.2008 in I.A.No.282 of 2007 in I.A.No.64 of 2007 in O.S.No.48 of 2006 passed by the learned Principal District Judge, Puducherry in dismissing the application praying to set aside the ex parte order of dismissal dated 14.09.2007 passed in I.A.No.64 of 2007 in O.S.No.48 of 2006.
C.R.P.No.1812 of 2008:
The revision petitioner/petitioner/defendant has projected this civil revision petition as against the order dated 11.04.2008 in I.A.No.283 of 2007 in I.A.No.65 of 2007 in O.S.No.49 of 2006 passed by the learned Principal District Judge, Puducherry in dismissing the application praying to set aside the ex parte order of dismissal dated 14.09.2007 passed in I.A.No.65 of 2007 in O.S.No.49 of 2006.
C.R.P.No.1813 of 2008:
The revision petitioner/petitioner/defendant has projected this civil revision petition as against the order dated 11.04.2008 in I.A.No.281 of 2007 in I.A.No.63 of 2007 in O.S.No.34 of 2005 passed by the learned Principal District Judge, Puducherry in dismissing the application praying to set aside the ex parte order of dismissal dated 14.09.2007 passed in I.A.No.63 of 2007 in O.S.No.34 of 2005.
2.The trial Court, while passing orders in I.A.Nos.280, 282, 283 and 281 of 2007 dated 11.4.2008, has inter alia observed that mere pleading in the affidavit that the petitioner was prevented from attending the Court due to viral fever is not sufficient to hold that the petitioner has made out a sufficient cause for allowing these applications and resultantly, dismissed the same with costs.
3.According to the learned counsel for the revision petitioner/defendant, the trial Court has committed an error in taking into consideration the past conduct of the petitioner to decide his absence on 14.09.2007 and failed to consider whether he has sufficient cause for his absence on 14.09.2007 and the term 'sufficient cause' must be liberally construed to do complete justice between the parties particularly when no negligence or inaction is attributed on the petitioner/defendant and as a matter of fact, three more cases have been posted on the same day involving huge amounts running into several lakhs of rupees and to advance the cause of substantial justice, the trial Court should have allowed the applications and in any event, the trial Court ought to have allowed the application by imposing necessary costs or other conditions reasonable to the cases on hand and these aspects of the matter have not been properly appreciated in the right direction which has resulted in miscarriage of justice and therefore, prays for allowing the civil revision petitions.
4.The learned counsel for the respondent supports the order of the trial Court passed in I.A.Nos.280/2007, 282/2007, 283/2007 and 281/2007 and submits that the revision petitioner has not projected a sufficient cause in allowing the said applications and therefore, the trial Court has rightly dismissed the applications on merits and the same need not be interfered with by this Court sitting in revision. Moreover, according to the stand taken by the respondent/decree holder before this Court is that as against the order passed in I.A.Nos.280/2007, 282/2007, 283/2007 and 281/2007 by the trial Court, an appeal remedy lies and therefore, these revisions are not maintainable.
5.In the affidavit in I.A.No.280 of 2007 the revision petitioner/defendant has averred inter alia that an ex parte decree has been passed in the suit O.S.No.33 of 2005 on 13.3.2007 and that he has filed an application in I.A.No.62 of 2007 to set aside the ex parte decree and that the respondent has filed a counter and when the matter has been posted for enquiry on 14.09.2007, he has not appeared before the trial Court on 14.09.2007 because of the fact that he has been suffering from viral fever from 10.09.2007 and his counsel has been engaged before the Principal Sub Court at Puducherry at the time of calling of the above cases and consequently, I.A.No.62 of 2007 has been dismissed for default.
6.In the affidavit in I.A.No.282 of 2007 the revision petitioner/defendant has averred inter alia that an ex parte decree has been passed in the suit O.S.No.48 of 2006 on 13.3.2007 and that he has filed an application in I.A.No.64 of 2007 to set aside the ex parte decree and that the respondent has filed a counter and when the matter has been posted for enquiry on 14.09.2007, he has not appeared before the trial Court on 14.09.2007 because of the fact that he has been suffering from viral fever from 10.09.2007 and his counsel has been engaged before the Principal Sub Court at Puducherry at the time of calling of the above cases and consequently, I.A.No.64 of 2007 has been dismissed for default.
7.In the affidavit in I.A.No.283 of 2007 the revision petitioner/defendant has averred inter alia that an ex parte decree has been passed in the suit O.S.No.49 of 2006 on 13.3.2007 and that he has filed an application in I.A.No.65 of 2007 to set aside the ex parte decree and that the respondent has filed a counter and when the matter has been posted for enquiry on 14.09.2007, he has not appeared before the trial Court on 14.09.2007 because of the fact that he has been suffering from viral fever from 10.09.2007 and his counsel has been engaged before the Principal Sub Court at Puducherry at the time of calling of the above cases and consequently, I.A.No.65 of 2007 has been dismissed for default.
8.In the affidavit in I.A.No.283 of 2007 the revision petitioner/defendant has averred inter alia that an ex parte decree has been passed in the suit O.S.No.34 of 2005 on 13.3.2007 and that he has filed an application in I.A.No.63 of 2007 to set aside the ex parte decree and that the respondent has filed a counter and when the matter has been posted for enquiry on 14.09.2007, he has not appeared before the trial Court on 14.09.2007 because of the fact that he has been suffering from viral fever from 10.09.2007 and his counsel has been engaged before the Principal Sub Court at Puducherry at the time of calling of the above cases and consequently, I.A.No.63 of 2007 has been dismissed for default.
9.It transpires that the Interlocutory Application Nos.280, 282, 283 and 281 of 2007 have been filed under Order 9 Rule 9 of Civil Procedure Code. This rule speaks of the plaintiff applying for restoration of a suit dismissed under Order 9 Rule 8 of Civil Procedure Code for non-appearance. However, Order 9 Rule 7 of Civil Procedure Code speaks as follows:
"Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance- Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the date fixed for his appearance."
An application under Order 9 Rule 7 is to be made only if the defendant desires the proceedings to be relegated back and reopen the proceedings from the date where from he has been set ex parte so as to convert the ex parte hearing into bi-parte. Therefore, as per this rule, the Court has power to set aside an ex parte order on terms as to payment of costs and can also impose conditions.
10.It is true that no limitation period is prescribed for setting aside an order for ex parte hearing. Even though I.A.Nos.280/2007, 282/2007, 283/2007 and 281/2007 have been filed under Order 9 Rule 9 of Civil Procedure Code, the correct provision of law to be mentioned in those applications is only Order 9 Rule 7 or Section 151 of Civil Procedure Code, in the considered opinion of this Court. Moreover, an inherent power has its root in necessity and its breadth is co-extensive with the necessity as per decision (1976) 1 SCC 120. Indeed, the inherent powers of Courts of record and Civil Court is recognised by means of Section 151 of Civil Procedure Code as per decision (1977) 3 SCC 559. Therefore, as against the order of dismissal passed in those interlocutory applications only revision lies before this Court, in the considered opinion of this Court and as a matter of fact, the past conduct of the revision petitioner to determine his absence on 14.09.2007 cannot be a decisive factor and the contrary view taken by the trial Court is not correct as opined by this Court.
11.It is brought to the notice of this Court on behalf of the learned counsel for the respondent/decree holder that an ex parte decree has been passed on 13.03.2007 in all the suits viz., O.S.Nos.33/2005, 48/2006, 49/2006 and 34/2005 on the file of Principal District Judge, Puducherry. But the revision petitioner has filed I.A.Nos.62/2007, 64/2007, 65/2007 and 63/2007 to set aside the ex parte decree passed on 13.03.2007 in the respective suits and the same have been dismissed for default by the trial Court.
12.At this juncture, this Court pertinently points out that rejection/dismissal of an application under Order 9 Rule 7 of Civil Procedure Code is no bar to the hearing of an application under Order 9 Rule 13 of Civil Procedure Code as no finality is imparted to such orders as the Court refuses to permit the defendant to set the clock back as per decision in Kailashkumar and another V. VII Additional Judge, Court of District Judge, Indore AIR 1989 MP 237, 239 (DB). Moreover, a decision dismissing an application under Order 9 Rule 7, rejecting an application for setting aside an ex parte order does not operate as res judicata and does not bar hearing of an application under Order 9 Rule 13 of Civil Procedure Code on merits, in the considered opinion of this Court. Further, a restoration application under Order 9 Rule 13 may not be rejected merely on the ground that remedy of an appeal is available as per decision 1983 1 Guj LR 420, 422.
13.It is not out of place for this Court to point out that in Bajrang Rai and others V. Ismail Mian and others AIR 1978 Patna 339 at page 340 it is held as follows:
"An application under S.151 to restore application under O.9, R.9 or R.13 or an appeal under O.41, R.19 cannot be dismissed in limine on ground that appeal is provided against orders dismissing application under O.9, R.9 or R.13. Where an application under O.9, R.13 has been dismissed for default, merely on account of the fact that an appeal could be preferred against the order of dismissal for default of such application under Cl. (d) of R.1 of O.43, that provision is not such which could be said to be a prohibition against entertaining an application under S.151 for restoring an application under O.9, r.13 of the Code. Under the scheme of the Code, where there is provision for appeal that does not necessarily bar other remedies for setting aside a decree. Therefore, provision for appeal against dismissal for default of an application under O.9, R.9 or R.13 or under O.43 could not be said to expressly of impliedly bar filing of an application for restoration of an application under these rules, the reason being that in such cases, the party concerned without leading further evidence, will not be able to satisfy the Court that the order of dismissal for default of an application filed under O.9, R.9 or R.13 should be set aside and the application restored. Provision for appeal in such cases will be illusory, as in view of the provisions of O.41, R.27 the parties will not be entitled to lead any evidence before the appellate court as a matter of right. The exercise of inherent jurisdiction cannot, therefore, be limited to cases where there is abuse of the process of the Court. AIR 1959 Pat 121 (FB), Overruled. (Paras 18,19,22,28,30) Anno: AIR Comm. C.P.C. (9th Edn.), S.151 N.5; O.9 R.9 N.10; O.9 R.13 N.24 and (8th Edn.), O.41 R.19 N.7."
14.The main reason ascribed by the revision petitioner is that he has been suffering from viral fever for a period of one week from 10.09.2007 and therefore, he has not attended the Court on 14.09.2007. It appears that the petitioner has not cross examined the P.W.1 and therefore, the trial Court has been perforced to pass an ex parte decree and subsequently, the petitioner projected I.A.Nos.62/2007, 64/2007, 65/2007 and 63/2007 praying to set aside the ex parte decree and the same have been dismissed for default.
15.Admittedly, the revision petitioner has assigned the reason that he has been suffering from viral fever for a period of one week from 10.09.2007 and as such, he is unable to appear before the trial Court on 14.09.2007 and therefore, the trial Court has been constrained to dismiss the I.A.Nos.62/2007, 64/2007, 65/2007 and 63/2007 for default (not on merits).
16.As far as the present case is concerned, though the revision petitioner has come out with a plea that he has been suffering from viral fever from 10.09.2007 and as such, he has not been in a position to appear before the trial Court on 14.09.2007 etc., the respondent/plaintiff has filed a counter inter alia stating that I.A.Nos.62/2007, 64/2007, 65/2007 and 63/2007 have been posted for enquiry on 03.8.2007 and later the applications has been adjourned to 14.09.2007 as last chance and on 14.09.2007 there has been no representation on behalf of the petitioner and hence, the trial Court has dismissed these applications and moreover, it is not correct to state that the petitioner's counsel has been engaged before the Principal Sub Court, Puducherry.
17.The term 'sufficient cause' will have to be interpreted in a purposeful and meaningful way. If the ex parte order of dismissal dated 14.09.2007 passed in I.A.Nos.62/2007, 64/2007, 65/2007 and 63/2007 are not set aside then, there are possibilities that the meritorious matters are being thrown out at the nascent stage and cause of justice being defeated. As against this, if I.A.Nos.62/2007, 64/2007, 65/2007 and 63/2007 are allowed then, the maximum that can happen is that a cause will be decided on merits after hearing the parties with due opportunities provided to them. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done. The ex parte orders of dismissal ought not to be set aside by a Court of law in a cavalier fashion. Equally, it is to be borne in mind that the judiciary is respected not on account of its power to legalise injustice on technical grounds and because it is capable of removing injustice and is expected to do so, in the considered opinion of this Court.
18.Even though, in the present case, there is no satisfactory proof that the revision petitioner has been suffering from viral fever from 10.09.2007 and as such, he has been unable to attend the Court on 14.09.2007 yet this Court, on the basis of equity, fair play, good conscience and as a matter of prudence, by adopting a liberal, pragmatic and a common sense approach, in view of the stand taken by the respective parties in plaint and written statement in regard to the subject matter of the cause, allow the civil revision petitions directing the petitioner to pay a sum of Rs.2,500/- each (Rupees Two thousand five hundred only) in all the civil revision petitions as by way of exemplary costs to the respondent counsel directly on or before 14.09.2009, failing which the petitions will stand dismissed automatically without any further reference.
19.In the result, these Civil Revision Petitions are allowed with a direction that the revision petitioner/ defendant shall pay a sum of Rs.2,500/- each to the respondent/decree holder counsel directly in all these revisions on or before 14.09.2009, failing which the petitions will stand dismissed automatically without any further reference. The order of the trial Court in I.A.Nos.280/2007, 282/2007, 283/2007 and 281/2007 is hereby set aside. Further, the trial Court is directed to restore I.A.Nos.62/2007, 64/2007, 65/2007 and 63/2007 to its file and to deal with the same on merits and to pass appropriate orders in accordance with law. Having regard to the facts and circumstances of the case, there shall be no order to as to costs. Consequently, connected miscellaneous petitions are closed.