Rajasthan High Court - Jaipur
Ecgc Ltd vs M/S Dave Exports Thr Proprietor And Ors ... on 14 February, 2024
Author: Ashok Kumar Jain
Bench: Ashok Kumar Jain
[2024:RJ-JP:8338]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 82/2017
ECGC Limited Formerly Export Credit Guarantee Corporation Of
India Limited, Registered Office Express Towers 10Th Floor,
Nariman Point Mumbai, 400021 Government Of India
Enterprises, Through Its Branch Manager, IInd Floor, Anand
Bhawan, Sansar Chandra Road, Jaipur.
----Petitioner(Plaintiff)
Versus
1. M/s Dave Exports Through Proprietor Sharad Dave S/o
Late Shri Bhanwar Lal Dave, 437, Sector-11, Hiran Magri,
Udaipur (Raj.)
2. Punjab National Bank Limited Main Branch Panchsheel
Marg, Town Hall, Udaipur Through Branch Manager
----Respondents (Defendants)
For Petitioner(s) : Mr. Ashish Saksena
For Respondent(s) : Mr. B.C. Jain
Mr. Virendra Dave
Mr. Ritwick Dave
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
REPORTABLE
14/02/2024
1. Instant revision petition is preferred by the
petitioner/plaintiff/non-applicant aggrieved from order dated
06.01.2017 in Civil Misc. Application No. 192/2012 passed by learned Additional District Judge No.6, Jaipur Metropolitan whereby an application under Order IX Rule 13 read with Section 151 CPC filed by defendant no.1/respondent/applicant was allowed and judgment and decree dated 03.01.2012 in civil suit no. 271/2008 (168/2006), in favour of petitioner/plaintiff was set aside.
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2. In brief, the facts of the matter inter alia are that a civil suit filed by petitioner/plaintiff on 13.11.2006 for recovery of ₹37,05,172/- along with interest of 11% p.a. from 07.02.2004 till institution of suit, and 12% p.a. after institution of suit, wherein Defendant no.1 applicant has filed written statement but no written statement was filed on behalf of respondent/defendant no.2. On the basis of pleadings of the parties, four issues were framed. After examination of three witnesses, the evidence of plaintiff was closed on 07.07.2011 and thereafter the matter was fixed for evidence of defendant on 04.08.2011. On 04.08.2011, 24.08.2011, 16.09.2011 and 16.10.2011 time was sought on behalf of defendant/respondent no.1 for production of evidence. On 13.10.2011 affidavit of Sharad Dave was filed on behalf of defendant no.1 and the matter was fixed for cross-examination on 01.11.2011 but on 01.11.2011 the witness remained absent and the matter was fixed for 25.11.2011. On 25.11.2011 the evidence of defendant no.1 was closed and the matter was fixed for final hearing on 09.12.2011. On 09.12.2011, counsel for defendant/respondent no.1 pleaded no instruction and the trial court heard the arguments of counsel for plaintiff and defendant no.2 and fixed the matter for pronouncement of judgment on 22.12.2011. On 22.12.2011 the matter was deferred to 03.01.2012 and on 03.01.2012 the judgment was pronounced.
3. Aggrieved from aforesaid judgment and decree, an application under Order IX Rule 13 read with Section 151 CPC was filed by applicant/defendant/respondent no.1 on 18.09.2012, (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (3 of 18) [CR-82/2017] which was allowed on 06.01.2017 at a cost of ₹2500/- and as a result the judgment and decree dated 03.01.2012 was set aside.
4. Learned counsel for petitioner/plaintiff while relying upon grounds of instant petition submitted that defendant no.1 applicant has participated in whole trial till the stage of argument but when the matter was taken-up for arguments, counsel for defendant/respondent no.1 has deliberately pleaded no instruction. He also submitted that before pleading no instruction, a notice was said to be sent to the defendant no.1 for participation in the proceedings by the then counsel but defendant/respondent no.1 deliberately avoided the participation in the proceedings of civil suit. He also submitted that after passing of the decree, an application was moved for setting aside decree but after a delay, as no application was moved by the defendant/respondent no.1 within prescribed 30 days. He relied upon judgment of Co-ordinate Bench of this Court in case of Champalal through LRs Vs. Kaushal Kumar and Ors. (S.B. Civil Appeal No. 5913/2011 dated 04.07.2016) to submit that Article 123 of Limitation Act is applicable for calculation of limitation. He also submitted that to move an application for condonation of delay in support of application under Order IX Rule 13 of CPC, it is necessary for the applicant/defendant to show sufficient cause. He also submitted that the trial court has erred while considering the application of condonation of delay under Section 5 of Limitation Act. He relied upon judgment of Co-ordinate Bench of this Court and submitted that without sufficient cause, no application can be allowed. (Downloaded on 15/03/2024 at 09:21:40 PM)
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5. He also relied upon judgment of Hon'ble Supreme Court in case of Sunil Poddar and Ors. Vs. Union of India (2008) 2 SCC 326 and also judgments of Co-ordinate Bench of this Court in cases of Gyan Chand Vs. Rajasthan Tractor Co. 2006 (1) CDR 788 (Raj.), Ladu Ram Vs. Smt. Gaytri Devi & Ors. 2004 (2) CDR 1584 (Raj.), Chhitar Mal Saini Vs. Basanti & Anr. 2014 WLC (Raj.) UC 233, Madan Lal (D) & Ors. Vs. Prabhu Dayal & Ors. 2009 (2) RLW 1760 (Raj.) and submitted that the trial court has committed error while relying upon judgment of Hon'ble Supreme Court in case of Malkiat Singh and Anr. Vs. Joginder Singh & Ors. 1998(2) SCC 206 without considering the facts of the matter. He also referred the cases of Deepak S. Vs. George Phillip and Ors.: AIR 2007 Kerala 94, Lachman Dass Vs. FCI (2007) 146 PLR 391 and Omprakash Rameshwar Patidar Vs. Ekbal Hussain 1998 (1) MPLJ 349 and submitted that the applicant/defendant was well-aware about the proceedings before the trial court and at the fag end of the trial, he chooses not to participate in the proceedings despite notice from his counsel which clearly means that he had deliberately avoided the process of law and in such circumstances, the Court acted in most liberal manner, while allowing the application. He also submitted that if any counsel has pleaded no instruction, it does not mean that the Court should issue fresh notice to the defendant and the trial of the suit should be defeated. He also submitted that there is no rule under the CPC for issuance of any fresh notice after pleading of no instruction by any counsel. He also relied upon judgment of Co-ordinate Bench of this Court in case of Sogani Brothers Vs. (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (5 of 18) [CR-82/2017] M/s. Kuwait Airways Corp. 2009 (4) RLW 3608 (Raj.) to submit that in case of setting aside of ex-parte decree certain stringent conditions are required to be imposed so as to balance the equity but the trial court in benevolent manner had allowed the application under Order IX Rule 13 CPC, as if no notice was served upon respondent/defendant no.1.
6. Aforesaid contentions were opposed by learned counsel for respondent/defendant no.1 and submitted that due to some emergency in the family of defendant, he could not appear before the trial court on 25.11.2011. He also submitted that in his petition under Order IX Rule 13 CPC specific averments were made about the illness of his mother and also mental status of defendant no.1, therefore, the Court after considering the material on record has rightly allowed the application under Order IX Rule 13 of CPC. He also submitted that if no instruction pleaded by the counsel of any party, then, it is mandatory for the Court to issue fresh notice but in the instant case, the trial court had not issued any notice to the respondent no.1/defendant to enable him to participate in the proceedings. He further submitted that the trial court has rightly allowed the application under Order IX Rule 13 of CPC, in view of law settled by Hon'ble Supreme Court in case of Malkiat Singh and Anr. (supra). He also submitted that if proper liberty is not granted to the defendant then, the purpose would frustrate, which will tantamount to denial of his rights.
7. Heard learned counsel for the parties and perused the record and also considered the judgment of Hon'ble Supreme Court and (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (6 of 18) [CR-82/2017] Co-ordinate Bench of this Court and other High Courts as cited by learned counsel for parties.
8. The fact which was explained hereinabove clearly indicated that in a civil suit for recovery of money, a decree was passed in favour of plaintiff/petitioner on 03.01.2012. The fact clearly indicated that defendant no.1/applicant has participated in the proceedings of the trial court till closure of evidence of both the parties but when the matter was fixed for final hearing on 09.12.2011, counsel for respondent/defendant no.1 pleaded no instruction.
A. The first question before us is the impact of no instruction:
09. Sequence of important dates are as under:-
Sr.No. Important Particulars
Dates
i. 13.11.2006 A suit for recovery was filed by
plaintiff (Petitioner herein)
ii 11.04.2007 Vakalatnama on behalf of defendant/
respondent No.1 was filed.
iii 10.08.2007 Written Submissions filed by
defendant No.1.
iv 03.08.2010 Issues framed.
v 07.07.2011 Evidence of plaintiff closed.
vi 04.08.2011 First date for defendant evidence.
vii 24.08.2011 Adjournments for defendant
16.09.2011 evidence.
viii 13.10.2011 Affidavit of DW Sharad Dave filed by
counsel for defendant.
ix 01.11.2011 Adjournment for defendant evidence.
x 25.11.2011 Defendant evidence closed.
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xi 09.12.2011 'No Instruction' by counsel for
defendant No.1.
Arguments heard.
xii 22.12.2011 Adjournments.
xiii 03.01.2012 Judgment.
xiv 18.09.2012 Application under Order IX Rule 13
CPC by defendant/respondent No.1.
10. In case of Malkiat Singh and Anr. (supra), the fact of the matter was that counsel for appellant pleaded no instruction and no further notice was issued after no instruction. Hon'ble Supreme Court, while considering the aforesaid situation has allowed the application in the interest of justice. Hon'ble Supreme Court relied upon judgment in case of Tahil Ram Issardas Sadarangani Vs. Ramchand Issardas Sadarangani 1993 Supp (3) SCC 256, wherein Hon'ble Supreme Court opined that when a counsel withdrew from the case, a fresh notice for actual date of hearing should have been sent to the parties in the interest of justice.
11. Aforesaid principle indicated that in the interest of justice, Hon'ble Supreme Court has opined that notice can be issued to the parties, in case of withdrawal of counsel by pleading no instruction. One fact is quite clear that there is no provision under the CPC or rule of practice that in case of no instruction by a counsel, a notice is required to be issued to a party whose counsel had withdrew from the case.
12. In case of Deepak S. Vs. George Phillip, (supra) a Division Bench of Kerala High Court after considering the judgment of Malkiat Singh and Anr. (supra), opined that the procedure for (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (8 of 18) [CR-82/2017] appearance of parties and consequences of their non-appearance are detailed in Order IX of CPC and Order IX provides that when neither party appears, the suit can be dismissed but in case defendant does not appear when the suit is called for hearing, the Court can hear the suit ex-parte. The Division Bench has further discussed the scope of Order IX Rule 6, 7 and 13 after relying upon judgment of Hon'ble Supreme Court in cases of Sangram Vs. Election Tribunal Kotah AIR 1955 SC 425, Arjun Singh Vs. Mohindra Kumar & Ors AIR 1964 SC 993, Rajni Kumar Vs. Suresh Kumar Malhotra & Anr. AIR 2003 SC 1322, Raj Kumar Vs. Sardari Lal 2004 AIR SCW 470 and observed that there is no mandatory rule or rule of universal application for issuance of fresh notice in case counsel reports no instruction.
13. In case of Lachman Dass Vs. Food Corporation of India (supra), a Co-ordinate Bench of Punjab and Haryana High Court observed that the mere fact that an advocate has pleaded no instruction would not be sufficient to warrant issuance of fresh notice to the client of such advocate and failure to issue such notice would not warrant setting aside of proceedings initiated thereafter.
14. Again, in case of Omprakash Rameshwar Patidar and Vs. Ekbal Hussain S/o Noor Mohd. and Anr. (supra), a Co-
ordinate Bench of Madhya Pradesh High Court while relying upon judgment of Hon'ble Supreme Court in case of The Managing Director (MIG) Hindustan vs Ajit Prasad Tarway AIR 1973 SC 76 observed that liberal approach did not and could not mean that erring applicants should have license to disappear or appear (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (9 of 18) [CR-82/2017] at will and to regulate the course of proceedings to suit their comfort or convenience. If the Court adhere to mandate of law, they cannot be criticized for acting without or in excess of jurisdiction. The law and justice are not distant neighbours and suiters cannot be expected to litigate without prospects of finality in near future. After all "no instructions' were pleaded after several years.
15. In the instant case, the fact clearly indicate that after participating till trial was over, the counsel for defendant No.1 had pleaded no instruction. The counsel had pleaded no instruction at the stage of final arguments on 09.12.2011. On 09.12.2011, the trial court has concluded the arguments. Herein, the fact of the matter clearly indicated that six opportunities were granted to the defendant/respondent no.1/applicant for production of his own evidence but he failed to appear on six occasions till closure of his evidence. The affidavit of defendant no.1 was filed by the counsel for defendant and the Court has directed that the defendant must be present on 01.11.2011 for cross-examination. On 01.11.2011 the trial court even granted one more opportunity for 25.11.2011 and ultimately on 25.11.2011 the evidence of defendant no.1 was closed and the matter was posted for 09.12.2011. Thus, no instruction was pleaded on 09.12.2011.
16. The proceedings of the trial court clearly indicated that pleading of no instruction was after conclusion of the trial thus the defendant was not prevented from participating in the trial rather defendant no.1 has participated in the whole trial, therefore, the judgment in case of Malkiat Singh and Anr. (supra), is not (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (10 of 18) [CR-82/2017] applicable in the instant case and the defendant no.1 was well- aware about the trial.
17. Order IX of CPC deals with the appearance of the parties before the Court on the date fixed for such appearance. It also provides for the consequences when either party or both of them do not appear. Rule 1 of Order IX CPC prescribes that the party(ies) to the suit are required to attend the Court either in person or by pleader(s). The Court can proceed ex-parte, in case any of the party does not appear, which includes dismissal of suit on non-appearance of plaintiff.
18. In case of Sangram Singh Vs. Election Tribunal (supra), Hon'ble Supreme Court observed that in case of service of summons is proved, the Court can proceed ex-parte against the defendant and pass ex-parte judgment. A perusal of Order IX CPC clearly indicated that after participation by any of the party in Civil Suit, if his counsel fails to appear or pleads "no instructions", the the Civil court would proceed ex-parte. In absence of Rule, it is not mandatory either for any of Trial Court or for Appellate Court to issue fresh notice for appearance. Thus, the trial court has not committed any error in not issuing any notice of appearance to defendant No.1, after his counsel pleaded 'no instruction" on 09.12.2011.
B. Now, comes the question of limitation to file application under Order IX Rule 13 of CPC:
19. After passing of decree on 03.01.2012, an application under Order IX Rule 13 was filed on 18.09.2012. Article 123 of the Limitation Act, 1963 prescribes that in aforesaid circumstances, (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (11 of 18) [CR-82/2017] the application under Order IX Rule 13 ought to have been filed within a period of thirty days but herein the application was filed way beyond thirty days. The application indicated that defendant no.1 came to know about passing of judgment and decree on 30.08.2012 and on 11.09.2012 he obtained the copy of the judgment and decree.
20. In support of condonation of delay, an application under Section 5 of Limitation Act was also filed. The trial court after considering the fact that applicant/defendant no.1 was busy in treatment of his mother though no document was filed in support of claim of treatment of his mother but still allowed the application under Section 5 of Limitation Act without considering the provision of Section 5 of Limitation Act and also Article 123 of Limitation Act.
21. Section 5 of the Limitation Act prescribes that any appeal or revision or an application may be admitted after the prescribed period, if the appellant or the petitioner satisfies the Court on sufficient cause for not preferring appeal or revision of making application within prescribed period.
22. In case of Collector, Land Acquisition, Anantnag Vs. Katiji AIR 1987 SC 1353, Hon'ble Supreme Court laid down following principles to consider application for condonation of delay:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (12 of 18) [CR-82/2017] cause would be decided on merits after hearing the parties.
3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay. every seconds delay ? The doctrine must be applied in a rational common sense pragmatic manner
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
23. In case of Balwant Singh (dead) Vs. Jagdish Singh and Ors. 2010 (8) SCC 685, Hon'ble Supreme Court while considering Section 5 of Limitation Act has referred the judgment in the case of Union of India Vs. Ram Charan AIR 1964 SC 215 and observed that the explained delay should be clearly understood in contradistinction to inordinate unexplained delay.
Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (13 of 18) [CR-82/2017] condonation of delay. The larger benches as well as equi-benches of Hon'ble Supreme Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.
24. In support of application for condonation of delay, following reasons were mentioned:-
(i) From 25.11.2011 to 01.12.2011, the mother of defendant no.1 was ill and she was taken to Gujarat for treatment.
(ii) From 02.12.2011 onwards the defendant No.1 suffering from mental health issue such as depression.
It is very important to note that not a single document was filed in support of any of aforesaid reason, thus the claim was made without support of any document.
25. Aforesaid provision of law clearly indicated that it was duty of the trial court firstly to ascertain "sufficient cause", though while ascertaining the sufficient cause, day to day explanation of delay is not required but it has to ensure the bonafides of the applicant who sought condonation of delay from the trial court. It appears that the trial court without considering the law over the point has adopted extra liberal approach in allowing application under Section 5 of Limitation Act, therefore, in the instant case an application under Order IX Rule 13 of CPC was filed after a (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (14 of 18) [CR-82/2017] substantial delay and no document in support of application for condonation of delay under Section 5 of Limitation Act was filed, therefore, the applicant/defendant no.1 was not entitled for any condonation of delay and the trial court has committed serious error while allowing the application under Section 5 of Limitation Act. The application under Order IX Rule 13 CPC was barred by law and was liable to be dismissed solely on the ground of delay. C. Now comes the grounds of setting aside of decree under Order IX Rule 13 of CPC:
26. The fact narrated hereinabove clearly indicated that six opportunities were granted for recording the evidence of defendant no.1. It was claimed that on 25.11.2011 the mother of defendant no.1 was ill and he had to travel to Ahmedabad (Gujarat) but after return from Gujarat on 01.12.2011 or 02.12.2011, he could contact his counsel to know about the next date. No matter was placed on record to show that the defendant no.1 made any effort to get information about next date of hearing, which was scheduled on 09.12.2011. Further, the judgment was passed on 03.01.2012 and from 02.12.2011 onwards, whether the defendant has contacted his counsel was neither pleaded nor established from the record. Similarly, after return from treatment of mother to Udaipur on 01.12.2011, the applicant/defendant no.1 was allegedly suffering from mental illness and depression but no document to that effect is filed on record which indicated that the ground was concocted and manipulated. Herein this case, the defendant was well-aware about the pendency of a recovery suit against him and the (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (15 of 18) [CR-82/2017] proceedings clearly indicated that six opportunities were already granted to him to led evidence, which indicated that the defendant had not utilized the opportunities to submit his defence. The defendant, a businessman was well-aware about the pendency of civil suit and his claim of absence was not fortified from any of the document on record, which indicated that defendant/respondent no.1/applicant had not established any ground to attract provision of Order IX Rule 13 CPC. Thus, the trial court without understanding the facts of the case and misconstruing the legal provisions, has allowed the petition under Order IX Rule 13 CPC in most casual manner.
27. Rule 13 of Order IX CPC is reproduced as under:-
"13.Setting aside decree ex parte against defendant - 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:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.
Explanation - Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposal of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree."(Downloaded on 15/03/2024 at 09:21:40 PM)
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28. In cases of Gyan Chand Vs. Raj Tractor Company (supra), Ladu Ram Vs. Gyatri Devi (supra), Rajjo Vs. Satish Kumar (supra), Chittar Mal Saini Vs. Basanti and Anr. (supra) and Madan Lal Vs. Prabhu Dayal & Ors (supra), Co- ordinate Benches of this Court has considered similar petitions on the issue of sufficient cause and refused to set aside ex-parte decree. Therefore, it is necessary for any applicant to show sufficient cause for setting aside of ex-parte decree but herein no sufficient cause was shown for setting aside of decree. In the case of Sunil Poddar and Ors. Vs. Union Bank of India (supra), Hon'ble Supreme Court has also considered the provision of Rule 13 of Order IX of CPC and held that the legal position under the amended code is not whether the defendant was actually served with summons in accordance with the procedure laid down and in manner prescribed in Order V of Code but,
(i) Whether he had notice of the date of hearing of the suit
(ii) Whether he had sufficient time to appear and answer the claim of the plaintiff.
Once these two conditions are satisfied and ex-parte decree cannot be set aside even if it is established that there was irregularity in the service of summons. If the Court is not convinced that the defendant has otherwise knowledge of the proceedings and he could have appeared and answered the plaintiffs claim, he cannot put forward a ground of non-service of summons for setting aside ex-parte decree passed against him by invoking Rule 13 of Order IX of the Code.
(Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (17 of 18) [CR-82/2017] Aforesaid clearly indicated that herein the defendant no.1 was not only served the notice of the civil suit but he participated till closure of the evidence of both the parties. At the time of final argument no instruction was pleaded. A fact is also brought on record that before pleading no instructions the counsel for defendant no.1/applicant has served him a notice which was duly received by defendant no.1. The approach of the Court must not be so liberal so as to cause injustice with other party to the proceeding. The Trial Courts are duty bound to adjudicate any issue on the basis of law and rules. Herein no sufficient ground was shown for non-production of evidence despite six opportunities to defendant no.1. Further, material was already available on record to decide the litigation on merits. Thus, there was no ground whatsoever available for the defendant no.1 to plead for setting aside of decree under Rule 13 of Order IX of CPC. The invocation of provision under Rule 13 of Order IX is itself an abuse of process of law.
29. The fact clearly indicated that on 25.11.2011 defendant no.1/applicant went to Ahmedabad for treatment of his mother but he returned on 26.11.2011 and till 01.12.2011 he was busy in treatment of his mother at Udaipur only. Thereafter, no specific incident or event was placed on record. Thus, neither any averment nor any document to establish that from 02.12.2011 onwards the defendant no.1 was prevented by any sufficient cause in participating the proceedings of the trial court, is available on record, therefore, there was no sufficient cause before the trial (Downloaded on 15/03/2024 at 09:21:40 PM) [2024:RJ-JP:8338] (18 of 18) [CR-82/2017] court for setting aside the judgment and decree passed after full trial in favour of petitioner/plaintiff.
30. The approach of the trial court is not appreciable in the instant case, because while setting aside of money decree, some conditions required to be imposed at the time of passing of the order but herein this case, the trial court has simply allowed as if it has allowed simple application like taking documents on record or granting a liberty for evidence or filing of any written statement.
31. In view of aforesaid, the petition is liable to be allowed and the order dated 06.01.2017 on application under Order IX Rule 13 CPC is liable to be set aside.
32. As a result, the instant revision petition is hereby allowed and the order dated 06.01.2017 is set aside. As a result, the judgment and decree dated 03.01.2012 in CS NO. 271/2008 (168/2006) is hereby restored.
(ASHOK KUMAR JAIN),J CHETNA BEHRANI /308 (Downloaded on 15/03/2024 at 09:21:40 PM) Powered by TCPDF (www.tcpdf.org)