Bombay High Court
Rambrish K. Shukla And Anr. vs Municipal Corporation Of Gr. Bombay And ... on 22 February, 1999
Equivalent citations: (1999)101BOMLR668A, 1999 A I H C 2843, 1999 BOM LR 2 668
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
JUDGMENT T.K. Chandrashekhara Das, J.
1. This Civil Revision Application arises out of an order passed by the Bombay City Civil Court, Bombay in Notice of Motion No. 6190 of 1995, whereby the decree passed by that Court was set aside by exercising the power under Order IX, Rule 13 of the Code of Civil Procedure. The Court below proceeded on the basis that the decree which was passed on 13.10.1995 was an ex-parte decree, and that sufficient grounds have been made out by the Respondents to set aside the same. The circumstances was explained by Respondent No. 2 herein as to how he had abstained himself from the Court which resulted in passing a decree against him on 13.10.1995.
2. It is stated therein that the petitioner landlord instituted a suit for seeking a declaration that the part of the property occupied by respondent No. 2 was an encroachment on their property. A request was made to respondent No. 1 - Municipal Corporation to demolish the encroachment and also a prayer for injunction to restrain the respondent/defendant No. 1 - Corporation from granting repair permission to Respondent No. 2 in respect of the structure on the encroached portion. Simultaneously, the plaintiff-petitioner had taken out a Notice of Motion for interim relief in the same terms, and the City Civil Court on 13.4.1988 passed an order refusing injunction. The petitioner plaintiff challenged that order in Appeal before this Court. By an order dated 15.3.1996 this Court ordered stay of further proceedings in the case. However, on hearing the Advocates, this Court has directed the Trial Court to dispose of the suit itself. In compliance with the direction of the High Court, the City Civil Court ordered on 28.7.1998 directing the parties to appear in the Court on 11.8.1998.
3. Accordingly, on the first date of hearing, the plaintiff and their Advocate were present, when the Advocate for the respondent was absent. The Court directed the defendants to file written statement and the matter was adjourned to 31.8.1995. On 31.8.1995, an adjournment was sought on behalf of the plaintiff to engage another lawyer and the matter was again adjourned to 18.9.1995. On a perusal of the roznama, it is seen that on 18.9.1995, the petitioner and Advocate absent and Counsels for plaintiff and for B.M.C. present, the matter was again adjourned to 6.10.1995 and, thereafter on 10.10.1995, plaintiff present and defendants written statement filed and adjourned for no written statement hearing to 13.10.1995. On 13.10.1995, only the plaintiff and defendant No. 1 were present. An examination-in-chief of the witness of the plaintiff commenced and concluded. No oral evidence has been led by defendant No. 1. Second Defendant's Advocate remained absent. Argument was over, and the judgment was pronounced on 13.10.1995.
4. It is stated in the application filed by the 2nd defendant in the Court below that the hearing date fixed by the Court on 18.9.1995 were wrongly communicated by his Advocate's clerk as 18.10.1995. Consequently he was not aware of the proceeding between 18.9.1995 and 18.10.1995, Subsequently, when he casually met his Advocate's clerk, he came to know that the suit was decreed against him in his absence. The Trial Court has accepted the explanation offered by the respondent No. 2 and set aside the decree passed by the Courts below on 13.10.1995. It is in these circumstances that the petitioner filed the present Civil Revision Application to challenge the said order.
5. The main contention of learned Counsel for applicant Mr. M.N. Palan is that the City Civil Court has committed an error in setting aside the decree Under Order IX Rule 13 of the Code of Civil Procedure. According to him, the decree was not a decree passed under Order VIII, Rules 9 and 10 of the C.P.C. Therefore, the lower Court has exceeded its jurisdiction in exercising its power for setting aside the ex-parte decree. For the purpose of appreciating the arguments of learned Counsel Mr. Palan, it is necessary to refer relevant rules of the Code of Civil Procedure Code.
Order VIII Rule (1):-
The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.
Order VIII Rule 5(2):-
Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
Order IX Rule 6(1):-
Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then -
(a) if it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte.
Order IX Rule 7:-
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 day fixed for his appearance.
Order IX Rule 11:-
Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.
Order IX Rule 13:-
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; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Explanations;- Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree.
6. The words ex parte was used in Order IX Rules 6, 7, and 13 and its Explanation. The dictionary meaning of the word ex parte according to the (Oxford Dictionary) "in the interest of one side only" or of an interested outside party". But in the provisions of the Civil Procedure Code altogether a different meaning is appeared to have been ascribed. In Order IX Rule 6 it has been stated that, if it is proved that summons was duly served, the Court may make an order that the the suit be heard "ex parte". As per the Rule 7, where the Court has ordered that 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, the Court may permit him to contest the suit upon such terms as the Court deems fit to impose, as if he had appeared on the day fixed for his appearance. These two provisions i.e. Rules 6 and 7 of Order IX of the C.P.C. postulate the circumstances where the defendants first not appeared and where Court makes an order the suit be heard ex parte. The order IX Rule 7 could be made use of only where at a previous hearing date the defendant did not appear and he be set ex parte. What will happen if the defendant did not appear on the first hearing date and the Court did not pass any order as envisaged under Order IX Rule 6(i)(a) setting him ex parte; instead, if the Court simply adjourned the case? Then on the adjourned date defendant need not file and application as envisaged under Order IX Rule 6 and he can appear and proceed with the matter as if nothing has happened on the last hearing date. In other words Rule 7 can be pressed into service only where Court passes an Order under Rule 6(i)(a). Then we have to come to the relevant portion of Order IX Rule 13 of the C.P.C. which starts with a phrase "In any case".
7. We have to examine what is the significance of the phrase" in any case". On a perusal of the Rules, the words in any case used in Rule 13 signify that if the defendant was set ex parte under Order IX Rule 6(1)(a) and if he does not appear in the next hearing dates, as envisaged under Rule 7 and he can apply for setting aside such decree under Order IX Rule 13 as explained above. Court can proceed with matter further culminating the proceedings to passing a decree. Then also the defendant has to explain his ground for absence in the proceedings.
8. In this context, I have to examine the contention of the learned Counsel for the petitioner. As I indicated earlier, both Rule 7 and 13 of Order IX of the C.P.C. could be invoked only where an order was passed by the Court under Rule 6(1)(a) of the Civil Procedure Code, making an order by the Court that the suit be heard ex parte. In the absence of such an order, according to the Counsel, it cannot be said that there would be an ex parte decree and without an ex parte decree no power of the Court under Order IX Rule 13 can be exercised. In other words, in absence of an order passed by the Court under Rule 6(1)(a), declaring the defendant ex parte, the decree passed under the C.P.C. will be treated only as decree passed under Order VIII Rules 5 and 10 of the C.P. C, even if decree was passed in the absence of the defendants. 1 see considerable force in this contention of the counsel for the applicant.
9. In this context, I have to examine the contention raised by learned Counsel of the Respondent Mr. Shah. He tried to impress upon me that the 2nd defendant's absence was not deliberate, but innocent. He was mistakenly informed the date of hearing by his Advocate's clerk. On coming to know the above mistake he immediately filed his application for setting aside the decree. Assuming for a moment that the argument of the learned Counsel for the 1st respondent to be true, without and ex parte decree, the said decree cannot be set aside by invoking Order 9 Rule 13 of the Code of Civil Procedure. Only remedy open to the respondent in such circumstances, is to file an Appeal against the decree. An appeal will lie even against ex parte decree and also against the decree passed under Rules 5 and 10 of Order VIII of the C.P.C. An appeal will not lie if the petition to setting aside ex parte decree is pending. As per the explanation to Rule 13, it is very clear that the provisions for appeal can be made available by a party who suffers the decree whether it is ex parte or not. In other words, if it is a decree passed in the absence of the defendant without the formal declarations by the Courts, declaring him ex parte exercising the jurisdiction under Sub-rule 1 of the Rule 6 of Order IX of the C.P.C. the Court cannot invoke the jurisdiction under Order IX Rule 13 of the C.P.C.
10. The learned Counsel for the respondent further submits that a decree passed under Order VIII Rule 10 could be treated as such only if there is an order by the Courts below to file the written statement under Order VIII (1) and Rule 9. In other words he submits that there is no obligation on behalf of the defendant to file the written statement in order to bring the decree passed under Rule 5 or 10 of Order VIII of the C.P.C. There is not quarrel with regard to the submissions made by the counsel for the respondent. The Code of Civil Procedure does not insist upon a party to file the written statement. But on receipt of summons if he appears and asks for time to file written statement it becomes an obligation on the part of the defendant to file written statement. Under Order VIII Rule 9 no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off (or counter-claim) shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
11. The contention of the learned Counsel for the defendant that there is no order in this case to file written statement either Order VIII Rule 9 of the C.P.C. and therefore in the absence of such a direction by the Court the decree has been passed in this case cannot be treated as one passed under Order VIII Rule 10 1 cannot accept the contention of the learned Counsel for the respondent. Because as earlier indicated by me, the defendant first appears before the Court and asked for time which implied that he want to file written statement. Therefore, it has become obligatory on the part of the defendant to file written statement.
12. Moreover, in the facts and circumstances of this case we need not go to that aspect at all. As indicated above, the respondent No. 2 was showing resistance by filing reply before the Court in the Notice of Motion taken by the petitioner or taking possible contention to contest the matter. In view of such specific contention raised by the respondent No. 2 it is submitted by the Counsel for the respondent No. 2 that there was no order by the Court to file written statement. Therefore, in the absence of such order the decree passed in this case cannot be treated as a decree under Order VIII Rule 10 of the C.P.C. It is to be noted that the Court cannot in the light of the contention raised by the respondent No. 2 could pass an ex parte decree in this case. Order IX Rule 6(1)(a) could not have invoked by the Court in the light of stiff resistance shown by the respondent No. 2. It is for the benefit of the 2nd respondent, that the Court has not set respondent No. 2 ex parte, because the Court has given the liberty to the defendant No. 2 to appear at any hearing date later and proceed with the matter. Had the Court set him ex parte invoking the Rule 6(1) then, definitely, without setting aside the ex parte order the respondent No. 2 would not be able to appear and contest the matter. It is for the benefit of the respondent No. 2, the Court did not set him ex parte. So long as there is no order declaring the defendant ex parte, the decree said to be passed cannot be called as ex parte decree. Therefore, question of invoking the power under Order 9 Rule 13 does not arise at all.
13. In view of the matter, I find that the Trial Court has committed error in exercising its jurisdiction under Order IX Rule 13 in setting aside the ex parte decree and passed the impugned order, I make it clear that this order will not preclude the respondent No. 2 to file an appeal, if law permits.
14. In the result, Revision Application is allowed and the order under Revision passed by the Court below is set aside. No order as to costs.
15. In view of the order passed in the present Civil Revision Application, the Civil Application No. 4416 of 1998 is disposed of.
16. At the request of the Counsel for the Respondent the present order is stayed for a period of two weeks. It is directed that during the above period the status quo as obtained on today should be maintained.
17. Office is directed to forward the Record & Proceedings to the Trial Court forth with.