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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.