Heard Mohd. Arif Khan, Senior Advocate, assisted by Sri Mohiuddin Khan, learned Counsel for the petitioners, Sri Rakesh Pandey, Counsel for the opposite party No.3 and Standing Counsel for the State.
By means of instant writ petition, the petitioners have assailed the orders dated 16.12.2005 passed by the opposite party No.1-Additional District Judge, Court No.2, Lucknow, upholding the order dated 3.2.1997 (Annexure No.7) and the order dated 3.1.1994 passed by the opposite party No.2-IInd Additional Civil Judge, Lucknow.
Brief facts, giving rise to the instant writ petition, are that opposite party No.-3-K.S. Rawat filed a suit for possession by demolition of the constructions, which was registered as Regular Suit No. 289 of 1986, against the petitioners and opposite parties Nos. 4 to 6, inter-alia stating therein that he had purchased the plot No. 241, measuring 0.03 biswas through a registered sale deed from one Smt. Punia and was enjoying possession but the petitioners had forcibly took the possession and raised boundary wall thereon. In the suit proceedings, notice was issued but as opposite party No.3 did not give correct address of the petitioners and as such, notice was not served upon the petitioners. Subsequently, service was effected on the petitioners through publication. Ultimately, the said suit was decreed ex parte on 23.3.1990.
On coming to know about the ex-parte decree dated 23.3.1990, petitioners moved an application under Order IX Rule 13 of the Code of the Civil Procedure, which was registered as Misc. Case No. 14-C of 1990, for recalling the aforesaid order dated 23.3.1990. The Additional Civil Judge, Lucknow, on being satisfied with the cause shown in the recall application, vide order dated 5.11.1993, set-aside the ex-parte decree dated 23.3.1990 and restored the Regular Suit No. 289 of 1986 to its original number and directed the petitioners/defendants to file their written statement prior to 23.11.1993.
Counsel for the petitioners has submitted that petitioners/defendants could not file their written statement prior to 23.11.1993 as their Counsel had gone out of station and as such, the case was fixed for filing written statement for 3.1.1994. On 3.1.1994, the petitioners/defendants filed an application for adjournment but the Additional Civil Judge, Lucknow, while rejecting the adjournment sought by the petitioners, vacated the stay order, proceeded under Order VIII Rule 10 of the Code of the Civil Procedure and further decreed the suit ex-parte. Consequently, petitioners were directed to deliver the possession of the land in question to the opposite party No.3, failing which, possession will be given through the Court.
Under these circumstances, petitioners filed another application for recall of the ex parte decree dated 3.1.1994 under Order IX Rule 13 of the Code of Civil Procedure. The Additional Civil Judge, Lucknow, rejected the said application for recall by the order dated 3.2.1997 on the ground that the order dated 5.11.1993 was conditional one and the ex-parte decree dated 23.3.1990 was set-aside subject to the condition that the petitioners/defendants should file their written statement prior to 23.11.1993, which they had failed to comply.
Aggrieved by the aforesaid order dated 3.2.1997, petitioners/defendants filed an appeal, which was registered as Misc. Appeal No. 44 of 1997. In appeal it was urged that the order dated 5.11.1993, was not a conditional one and further a litigant cannot be penalized for the inaction or negligent on the part of his Counsel. The Additional District Judge, Lucknow, vide order dated 16.12.2005, rejected the appeal and held that while decreeing the suit filed by the opposite party No.3, the trial court had proceeded under Order VIII Rule 10 of the Code of Civil Procedure and as such the application made by the petitioners under Order IX Rule 13 of the Code of Civil Procedure was not maintainable.
Feeling aggrieved by the orders dated 16.12.2005 and the order dated 3.1.1994, petitioners have filed the instant writ petition inter alia on the ground that the opposite parties Nos. 1 and 2, while rejecting the appeal and the application for setting-aside ex parte decree, have relied on the past conduct of a party which cannot be the sole ground as the Court's discretion is to be exercised judicially and as such, the trial court had erred in law in not granting time to the petitioners to file written statement and further proceeded to decide the suit under Order VIII Rule 10 of the Code of Civil Procedure.
Relying upon the judgments of the Apex Court rendered in the case of Pradeep Narain Sharma and another Versus Satya Prakash Pandey [2000 (18) LCD 336 and Salem Advocate Bar Association, Tamil Nadu Versus Union of India [2005 (23) LCD 1250], learned Counsel for the petitioners submits that Order VIII Rule 10 of the Code of Procedure does not prescribe that whenever there is a failure to file written statement, the Court shall pronounce judgment against the defendant. However, it confers a discretion on the court either to pronounce a judgment or to pass such order as it may think fit. Further, in case an extension of time is asked for, Court has power to extend the time to file written statement within the scope and ambit of Rule 1 of Order VIII, which provides for filing of written statement by the defendant at or before the first hearing or within such time as the Court may permit and such extension of time is also implicit in Rule 10 within the expression "or make such order in relation to the suit as it think fit". Thus it is not mandatory to pronounce the judgment on the failure to file written statement. It is discretionary and the discretion of the Court is always a judicial discretion to be exercised judiciously.
Learned Counsel for the petitioners submits that it is a settled law that the Courts while proceeding with the case under Order VIII Rule 10 of the Code of Civil Procedure for the default of the defendant in filing the written statement should call upon the plaintiff to adduce evidence to prove his case and should apply its mind to the facts and evidence to arrive at a conclusion, whether the plaintiff is entitled to some relief in the suit or not. He submits that the petitioners are still in possession over the premises in dispute.
On the other hand, learned Counsel for the opposite party No.3 submits that the Court below had afforded opportunity to the petitioners by passing a conditional order to the effect that prior to 23.11.1993, they should file written statement and the case was listed for 23.11.1993 for framing issues but petitioners did not file any written statement and had sought adjournment by moving an application, wherein no reason was given for not filing any written statement prior to 23.11.1993 as directed by the Court and as such, on 23.11.1993, the case was adjourned for 3.1.1994 but even then, they did not file written statement. Furtheremore, no reason was assigned as to why written statement was not prepared and as such, the conduct of the petitioners shows that they were only interested in abusing the process of law and in delaying the proceeding of the suit. He submits that inspite of sufficient opportunity having being provided to the petitioners, they have not filed the written statement for considerable long period and as such, the trial Court proceeded in accordance with the procedure prescribed under the Code and decreed the suit..
It has been argued on behalf of the contesting respondent that where the petitioners have sought adjournment by moving an application but did not file written statement after being granted adjournment and the judgment followed by a decree was passed, it cannot be called an ex parte decree within the meaning of Order IX Rule 13 of the Code of Civil Procedure in view of the amended provisions of Order VIII Rule 10 and as such, there would be no need to fix any date for ex-parte hearing. Thus, the application under Order IX Rule 13 for setting aside the ex-parte decree would not be maintainable as the decree passed was not an ex parte decree. In support of the aforesaid submission, learned Counsel for the respondent has relied upon the judgment of Apex Court rendered in the case of Satya Narayan Sah Vs. Brij Gopal Mundra [AIR 1991 Patna 60] and Rudra Nath Mishra Versus Kashi Nath Mishra and others [AIR 1975 Allahabad 209].
Thus the sole question involved in this writ petition is as to whether the decree passed by the court after proceeding under Order 8 Rule 10 of the Code of Civil Procedure is any ex-parte decree and as to whether application udner Order 9 Rule 13 is maintainable or not.
First, I would examine Rudra Nath Mishra's (supra) case relied upon by the Counsel for the respondent. In this case, the case had been adjourned at the instance of the Court. On the adjourned date counsel for defendant moved the Court for a further adjournment. The application was rejected and the Court proceeded against the defendant and decreed the suit by using the words "ex-parte". The court observed that the defendant on whose behalf his counsel moved an application for adjournment, would be deemed to have been present on that date and it could not be said that the suit was decided in his absence. Therefore, the decree passed against the defendant will be deemed to be a decree passed on merits and cannot be termed as an ex-parte. . On the contrary, in the instant case, the time for filing written statement was granted but written statement was not filed and as such Court proceeded under Order VIII Rule 10 of the Code of Civil Procedure. Therefore, this case is distinguishable and cannot be applied.
Similarly, the decision rendered by the Patna High Court, on in Satya Narain Sah v. Brij Gopal Mundra; AIR 1991 Patna 60 cannot be made applicable in the instant case as in the first part of Rule 13 of Order 9 it is clearly indicated that in any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside. The expression "in any case in which a decree is passed ex-parte against a defendant" obviously refers to a case in which a decree is infact, passed ex parte against a defendant.
In my considered opinion on the failure of the defendants and their Counsel to appear in Court on the adjourned date of hearing of the suit, and its disposal under Order 8 Rule 10, it shall be treated as a disposal in accordance with Order 17 Rule 2 and it would be an ex parte decree passed under Order 8 Rule 10 and it shall not be treated differently from any other ex-parte decree and the same is liable to be set-aside under Order 9 Rule 13 of the Code of Civil Procedure.
The application of the provisions of Order 8 Rule 10 CPC results in a decree not by admission but owing to the default of a defendant to file a written statement which in its real meaning and substance is only an ex-parte decree. In my considered opinion when the trial court proceeds under Order 8 Rule 10 for defendant's default and passes a decree, it is an ex parte decree covered by Order 9 Rule 13. My above view is fortified with the decision of the Madras High Court in N.Jayaraman vs M/s Glaxo Laboratories India ltd; AIR 1981 Mad. 258 wherein the Court held in paragraph 6 of the report as under"-
"The use of the words " in any case in which a decree is passed ex parte is wide enough to cover all cases of ex parte decrees, no matter for what reason such an ex-parte decree has been passed. In the absence, therefore, of any restriction with the reference to the applicability of the provisions of Order 9 Rule 13 CPC to cases covered by Order 9 Rule 6 CPC. It is not possible to construe the provisions of O 9 Rule 13 CPC narrowly and to hold tht the decree, as in the present case, cannot be termed as an ex parte decree because the procedure under Order 9 Rule 6 CPC has not been followed."
It may be added that Andhra Pradesh High Court in the case of Innovation Apartments Flat Owners Association vs M/s Innovation Associates; AIR 1991 AP 69 held as under :-
" The provisions of O.9, R.13 can be invoked in any case in which a decree is passed 'ex-parte' and the question whether the ex-parte decree was passed in view of non-filing of the written statement or otherwise is of no consequence. The objective in doing so is to avoid driving the parties to file a regular appeal involving a lot of expenditure and waste of time. Where the lower Court disposed of the matter under O.8, R.10, C.P.C. decreeing the suit at the stage when written statement was not filed, the decree would amount to ex parte decree and attract provisions of O.9, R.10."
In A.K.P.Haridas vs. V.A.Madhavi Amma and others; AIR 1988 Kerala 304, the court observed that the remedy under Order 9 Rule 13 and that by way of appeal are not inconsistent, or mutually exclusive. There is no bar in resorting to both the remedies simultaneously or any of them alone. The relevant paragraph reads as under:-
"There is no bar in resorting to both the remedies simultaneously or any of them alone. Only thing is that when both remedies are attempted and one succeeds the other other becomes infructuous since the object and effect of both is the same. Availability of the remedy by way of appeal is no bar to an application under O.9, R.13, if such a remedy is also available to the party. For example when the defendant is set ex parte under O.9, R. 6 and an ex parte decree passed, though that decree is appealable, an application under O.9, R.13 also will lie. The real question for consideration is only whether an application under O.9, Rule13 will lie.
Thus it is imminently clear that a decree passed for defendant's default in filing written statement is an ex parte decree duly comes within the ambit of Order 9 Rule 13 and as such an application to set aside under Order 9 Rule 13 is maintainable.
It is also relevant to mention that the impugned judgment dated 3.1.1994 was passed for default of appearance of the petitioners and by not even examining the evidence, if any, on behalf of the respondent. The requirement under Order 8 Rule 10 of the Code to pronounce a judgment against the party who fails to present a written statement does not permit the court not to examine the evidence on record and pass a mechanical one sided order without applying its mind. Accordingly it cannot be said to be a judgment , on the merits, but only a decree against the petitioners owing to its failure to file a written statement and as such it will be termed an an ex-parte decree.
For the reasons aforesaid, the court below erred in holding that the application Order 9 Rule 13 is not maintainable and rejected the same. The Appellate Court also committed an error in approving the same. Therefore, the impugned orders suffer from infirmities and are liable to be quashed.
Accordingly, the writ petition is allowed and the impugned order dated 16.12.2005 passed by Additional District Judge, Lucknow and the order dated 3.2.1997 and 3.1.1994 passed by II Additional Civil Judge, Lucknow are hereby quashed. The Trial Court is directed to decide the suit on merits expeditiously provided the petitioners pay a sum of Rs. 8000/- as costs within a period of three months from the date of issue of certified copy of this order. It is further provided that out of Rs.8000/-, Rs. 5000/- shall be paid to the opposite party No.3 and Rs. 3000/- shall be transmitted to the Mediation and Conciliation Centre, High Court, Lucknow Bench, Lucknow.
Order Date :- 4.2.2011 Ajit/-