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CASE NO.: Special Leave Petition (civil) 17942-43  of  1999

PETITIONER: G.P. SRIVASTAVA

       Vs.

RESPONDENT: SHRI R.K. RAIZADA & ORS.

DATE OF JUDGMENT:       03/03/2000

BENCH: S.Saghir Ahmad. & R.P. Sethi.

JUDGMENT:

SETHI,J. L...I...T.......T.......T.......T.......T.......T.......T..J Leave granted.

   On  his failure to appear in the Court either personally or  through  his  Advocate, the suit for  arrears  of  rent, ejectment  and  damages  filed  against  the  appellant  was decreed  ex-parte on 10.3.1983.  The application for setting aside  the ex-parte judgment and decree filed on 7.4.1983 in terms  of Order 9 Rule 13 of the Code of Civil Procedure was dismissed  by  the Trial Judge on 14.5.1985.   The  revision petition  No.73 of 1985 filed by the appellant was dismissed by the High Court vide the order impugned on 23rd September, 1999  on  the  ground  that  the  appellant  had  failed  to establish  any  just  or  sufficient   cause  for  his   non appearance  on the date fixed when the ex-parte  proceedings were initiated against him.

   We  have  heard the learned counsel for the parties  and perused the papers.@@             JJJJJJJ

   The facts of the case are that respondent-landlord filed a  suit for ejectment and recovery of the arrears of rent on 5.8.1981  alleging therein that as the tenanted premises was new  construction,  the same is not covered under U.P.   Act No.30  of 1972.  The appellant-defendant- tenant was alleged to  have failed to pay the rent since June, 1980 and he  was in   arrears  amounting  to   Rs.4,000/-.   A  notice  under registered  cover  dated  29th  May, 1981 was  sent  by  the respondent  on the address of the appellant terminating  his tenancy.   Despite  service of the notice the appellant  was stated to have neither vacated the tenanted portion nor paid the arrears of rent or damages which necessitated the filing of  the  suit.   The appellant-defendant resisted  the  suit mainly  on  the ground that the entire plot of land of  Lane No.21,  Shanker Nagar, Nirala Nagar, Lucknow was let out  to him  in the month of February, 1997 and he was permitted  to raise  construction thereon.  In pursuance to the  aforesaid permission,  the  appellant claimed to have constructed  the entire  portion of the tenanted premises after incurring  an

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amount  of  Rs.25,000/-.   Monthly premium of  Rs.300/-  was settled    to   be   paid.      The   competence   of    the respondent-plaintiff  to  file the suit was also  challenged alleging  that he was not the landlord of the appellant.  On 10th  March, 1983 the case was called on for hearing by  the Court in the early hours but as no-one appeared on behalf of the  appellant,  the same was again taken up at 2  p.m.   As none  appeared  at  that  time also, the  suit  was  decreed ex-parte  on the basis of evidence produced in the case.  In his  application under Order 9 Rule 13 of the Code of  Civil Procedure,  praying for setting aside ex-parte judgment  and decree,  the  appellant  submitted  that he  was  posted  as Assistant  Engineer  in  the Irrigation  Department  and  on account  of the construction of the bridges over the  casual drains  he  had  to remain at the site in the  interests  of public.   He became indisposed in the evening of 8th  March, 1982  at  the site which was about 85 kilometers  away  from Lucknow  and  could not move or return back to Lucknow  till 11.3.1983  which prevented him to appear in the Trial  Court on 10th March, 1983.  Unfortunately, the young nephew of the counsel  of the appellant met with an accident on  10.3.1983 and  expired  which prevented his counsel also to appear  in the  Court on that date.  It was contended that the  absence of  the appellant and his counsel in the Trial Court was  on account  of the aforesaid circumstances and not intentional. The application was supported by his affidavit and a medical certificate.   The  Trial  Court did not  accept  the  pleas raised  by  the appellant and found that the absence of  the appellant  or his counsel in the Court on 10.3.1983 was  not for  just  or sufficient cause.  The filing of  the  medical certificate  was not disputed but the same was not relied on as  it was found to have been obtained from a private doctor and  not from a Government doctor.  The High Court also  did not accept the contentions of the appellant and noticing his previous  conduct rejected the revision petition refusing to set  aside  the ex-parte decree passed against  him.   Under Order  9 Rule 13 C.P.C.  an ex-parte decree passed against a defendant  can  be set aside upon satisfaction of the  Court that  either  the  summons  were not duly  served  upon  the defendant or he was prevented by any ’sufficient cause’ from appearing  when the suit was called on for hearing.   Unless ’sufficient  cause’  is  shown  for  non-appearance  of  the defendant  in the case on the date of hearing, the Court has no  power  to set aside an ex-parte decree.  The words  "was prevented  by  any sufficient cause from appearing" must  be liberally  construed  to  enable the court  to  do  complete justice  between the parties particularly when no negligence or  inaction is imputable to erring party.  Sufficient cause for  the  purpose of Order 9 Rule 13 has to be construed  as elastic expression for which no hard and fast guidelines can be  prescribed.  The courts have wide discretion in deciding the  sufficient cause keeping in view the peculiar facts and circumstances  of each case.  The ’sufficient cause’ for non appearance  refers to the date on which the absence was made a  ground for proceeding ex-parte and cannot be stretched to rely   upon  other  circumstances   anterior  in  time.   If ’sufficient  cause’  is made out for non appearance  of  the defendant  on  the  date  fixed for  hearing  when  ex-parte proceedings  initiated  against him, he cannot be  penalised for  his  previous negligence which had been overlooked  and thereby  condoned  earlier.   In  a  case  where   defendant approaches  the  Court immediately and within the  statutory time  specified, the discretion is normally exercised in his favour,   provided   the  absence   was  not   malafide   or intentional.   For  the absence of a party in the  case  the

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other  side can be compensated by adequate costs and the lis decided  on merits.  In the instant case, it is not disputed that  the nephew of the counsel of the appellant had died in@@                         JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ a  road  accident  on  the  date of  hearing  and  that  the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ appellant  himself was not at the station on account of  his employment  and  illness.   The  mere fact  of  obtaining  a certificate  from a private doctor could not be made a basis for rejecting his claim of being sick.  Both the Trial Court as  also  the  High  Court have adopted a  very  narrow  and technical  approach  in dealing with a matter pertaining  to the  eviction of the appellant despite the fact that he  had put  a  reasonable defence and had approached the Court  for setting  aside  the ex-parte decree, admittedly, within  the statutory  period.   Even if the appellant was found  to  be negligent,  the  other side could have been  compensated  by costs  and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court.  On account of the unrealistic and technical approach adopted by the   courts,  the  litigation   between  the  parties   has unnecessarily  been prolonged for about 17 years.  The  ends of  justice  can be met only if the appellant- defendant  is allowed  opportunity  to prove his case within a  reasonable time.   Under  the circumstances, the appeal is  allowed  by setting  aside the order of the High Court and of the  Trial@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Court.   The ex-parte Judgment and decree passed against the@@ JJJJJJJJJJJJJJJJJJJJJ appellant  is set aside on payment of costs of Rs.5,000/- to the  other side.  The Trial Court is directed to afford  the appellant  opportunity  to prove his case and  expedite  the disposal  of  the  suit preferably within a  period  of  six months from the date of receipt of the copy of this order.