Madhya Pradesh High Court
Sobhraj Sindhi And Anr. vs Mohd. Jahoor And Ors. on 18 November, 2002
Equivalent citations: 2003(1)MPHT33
ORDER S.P. Khare, J.
1. This is a revision by the defendants against the order by which their appeal under Order 43 Rule 1 (d), CPC has been dismissed. In this appeal they had challenged the order by which their application under Order 9 Rule 13, CPC for setting aside the exparte decree in Civil Suit No. 140-A of 1984 was rejected.
2. The suit was decreed exparte on 17-1-1991. The case of the defendants is that this case was being looked after by the defendant No. 2 Bhagchand who became seriously ill and therefore, he could not attend the hearings of the case from 13-12-89 to 17-1-1991. On the other hand, it has been stated by the plaintiffs that the defendants have been negligent and therefore their absence cannot be condoned and exparte decree cannot be set aside. The Trial Court and Appellate Court have held that there was not sufficient cause for the defendants to remain absent and therefore, exparte decree cannot be set aside.
3. After hearing the arguments of both the sides and after scrutiny of the evidence on record, this Court is of the opinion that the exparte decree ought to have been set aside. The defendants have examined Dr. B.N. Shrivas-tava as a witness. He has deposed that the defendant No. 2-Bhagchand was under his treatment. He has issued certificate on 1-7-1991 (Ex. P-l). According to this certificate, Bhagchand aged about 60 years was admitted in Medical College Hospital from 14-3-1988 to 28-3-88 for Infective Hepatitis with Pleural Effusion (R) side. He subsequently developed Ischemic Heart Disease for which he was advised rest in bed and treatment from 1-11-1989 to 30-6-1991. Dr. B.N. Shrivastava is a very senior Physician of Jabalpur and he was Head of the Department of Medicines in the Medical College, Jabalpur. Therefore, the genuineness of the certificate issued by him, cannot be doubted. On the basis of this certificate it is proved that defendant-Bhagchand who was looking after this case, was suffering from serious ailment during period of 2 years, prior to the date of passing of the exparte decree. This was sufficient cause for his absence during several hearings in the civil suit. The Courts below have not approached the case in the proper way. It is well settled that the words "sufficient cause" used in Order 9 Rule 13, CPC should be interpreted liberally so as to advance substantial justice. The Courts should not be over-strict. [Union of India Vs, Ram Charan, AIR 1964 SC 215].
4. It is found from the record that plaintiffs' suit was also dismissed .in default once and after sometime it was restored to its original number. The words "sufficient cause" have also been used in Section 5 of the Limitation Act, 1963. The Supreme Court has held while interpreting these words that discretion in the section has to be exercised to advance "substantial justice". It-has been emphasized that the Courts should adopt a pragmatic approach. M.K. Prasad v. P. Arumugam, AIR 2001 SC 2497 and Vedabai v. Shantaram, AIR 2001 SC 2582. In the case of M.K. Prasad (supra), Supreme Court observed that:--
"Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigating him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the exparte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties."
5. In view of the principle laid down in the recent decisions, referred above, the approach of the two Courts below was definitely perverse.
6. Revision is allowed. Impugned orders are set aside. The exparte decree in Civil Suit No. 140-A of 89 is also set aside. Parties are directed to appear before the Trial Court on 16-12-2002 for further hearing.