Allahabad High Court
Hanuman And Another vs Additional District & Sessions Judge ... on 18 January, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 25 Case :- MISC. SINGLE No. - 1321 of 2020 Petitioner :- Hanuman And Another Respondent :- Additional District & Sessions Judge Barabanki And Ors. Counsel for Petitioner :- Ashok Kumar Verma Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for the petitioners.
2. This petition has been filed by the petitioners challenging the order dated 25.10.2019 passed by the learned Additional District and Sessions Judge, Court No.1, Barabanki, in Civil Revision No.01/2019.
3. It has been submitted by learned counsel for the petitioners that the Regular Suit No.477 of 2010 for permanent injunction and cancellation of Will was filed by respondent nos.2 and 3 before the learned Civil Judge (Junior Division), Court No.13 Barabanki, with the allegations that one Sripal @ Rampal @ Ramphal was the owner of certain plots of land situated in the city of Barabanki as well as certain plots of land situated in village Barabanki (Dehat) and that the respondent nos.2 and 3 are the uncle's sons. In the garb of furnishing security of his friend for bail, the petitioners got a Will executed by Sripal and they tried to forcibly take possession on the basis of such forged Will. The said Suit was filed on 15.05.2010. On 07.06.2010, the date was fixed to file written statement and issues were directed to be framed on 14.06.2010. An application for temporary injunction was also filed on which the plaintiffs were directed to do necessary pairvi. Thereafter, several dates were fixed for disposal of the application for temporary injunction and later on the matter was transferred to another court where dates have been fixed for disposal of application of temporary injunction.
4. It is the case of the petitioners that they were never served any notice either when the case was pending in court no.13 or thereafter when the case was transferred to court no.21. A questionnaire dated 19.11.2019 has been filed as annexure-3 to the writ petition, which shows that before 29.08.2014 no notices/ summons have ever been issued or served upon the petitioners, nor the copy of such notices/ summons is available on record of the suit bearing No.477 of 2010 before the learned trial court.
5. It has also been submitted that respondent no.2- Sujeet Kumar had also filed a Regular Suit No.589 of 2010 before the learned Civil Judge (Junior Division), Court No.13, Barabanki, for cancellation of Will and permanent injunction in respect of the same Will and in respect of the same property. In the said suit, the petitioners had appeared and filed written statement, thereafter, the matter was not pursued and the suit was dismissed in default on 05.02.2019.
6. It has been submitted in paragraphs-9 and 10 of the writ petition that a vakalatnama of some advocate, which was never engaged by the petitioners, was filed in Regular Suit No.477 of 2010 and the lawyer in question took time to file written statement on 25.08.2014. The learned court below had given only four days' time and fixed the date on 29.08.2014 for filing the written statement. On 29.08.2014, since the counsel for the defendants failed to appear, the court directed to proceed ex parte against the defendants and fixed 15.09.2014 for taking evidence of the plaintiffs ex parte. On 15.09.2014, evidence of P.W.1 and P.W.2 were submitted on affidavit which were taken on record and the evidence of the plaintiffs was closed. The learned trial court directed the matter to be placed on 26.09.2014 for ex parte arguments. On 26.09.2014, the case was called out, the plaintiff was present and the defendant was absent. The court directed the matter to be listed on 10.10.2014 for delivery of ex parte judgment.
7. It is only on 10.10.2014 that the petitioners came to know that the said suit has been filed by the respondent nos.2 and 3 and that it was fixed on 10.10.2014 for delivery of ex parte judgment. The petitioners thereafter immediately moved an application Paper Ga-19 for providing opportunity of being heard. Learned trial court considered the application and fixed the same on 10.11.2014 for disposal. Thereafter, hurriedly on 10.10.2014 an application was filed for setting aside the order dated 29.08.2014 by which learned trial court had directed the case to be proceeded ex parte. The application was supported by an affidavit of the petitioners saying that they had never been served any notice and they had not engaged any lawyer who had allegedly appeared on 25.08.2014 on their behalf before the learned trial court. Such application under Order IX Rule 7 and Section 151 C.P.C. numbered as Paper GA-21/22 was taken up by the learned trial court and by an order dated 26.10.2018, the same was allowed.
8. The respondent nos.2 and 3 thereafter filed a Revision which has been entertained by the respondent no.1 and the impugned order passed merely on the ground that the application under Order IX Rule 7 was not maintainable by placing reliance upon the judgment rendered by Hon'ble Supreme Court in Arjun Singh Vs.Mahendra Kumar, AIR 1964 SC 993, and the said judgment being relied upon by this Court in Civil Revision No.6 of 2006: Ram Suman Pandey and 14 others Vs. Smt. Guddi Devi and another, decided on 22.05.2015 by this Court.
9. Learned counsel for the petitioners has produced the copy of the judgment rendered by the Co-ordinate Bench of this Court in Ram Suman Pandey (supra) and has argued that this Court did indeed refer to the judgment rendered by Hon'ble Supreme Court in Arjun Singh (supra) but distinguished the said judgment by saying that in the case of Arjun Singh the Hon'ble Supreme Court has held that inherent powers of the Court cannot override the express provisions of the statute and that Order IX, Rule 13 exhausts the whole gamut of situations that might arise owing to non-appearance of defendant during the course of trial. In this case, Hon'ble Supreme Court also held that when the hearing had been completed and the case was fixed for pronouncement of judgment, Order IX, Rule 7 is not attracted. The applicant had the remedy of filing applications under Order IX Rule 13 after ex parte decree had been passed.
10. The Co-ordinate Bench in Ram Suman Pandey (supra) further held that Order IX Rule 6 covers the case of the defendant who did not appear at all on the first date of hearing and the suit was adjourned after declaring to proceed against him ex parte as also on the defendant who did not appear after filing written statement. In both the cases the ex parte order only covered the period during which the defendant was actually absent and it did not act as bar to his resuming appearance in the suit at the stage at which it was then, if he appeared subsequently and wanted to forward his evidence. Order IX Rule 6 is applicable if the defendant wants the court to retrace its steps and to be allowed to file written statement. But if the defendant wants to proceed from the stage already reached, he will have an absolute right without obtaining the court's permission to take part in the proceeding.
11. However, Order IX Rule 7 cannot be read to mean that defendant cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared. He cannot be stopped from participating in the proceedings simply because he did not appear in the first or some other hearing. He will have to show good cause for his previous absence, only if he desires to be relegated back to the position in which he would have been put if he had appeared at the previous hearing, so that the proceedings in his absence could be re-opened. It was observed that there existed sufficient cause rather good reason had been shown by the defendant-respondent for his previous non-appearance in the proceeding of the suit, allowed by the order impugned in the civil Revision. This Court therefore dismissed the Civil Revision filed by Ram Suman Pandey and others.
12. Learned counsel for the petitioners has also placed reliance upon another Co-ordinate Bench judgment rendered in Kailash Nath and another Vs. Rajiv Ratan, 2004 (3) ALR 499, where the judgment rendered by Hon'ble Supreme Court in Arjun Singh (supra) has been considered again and it has been held that under Order IX Rule 7 procedure is provided where the defendant appears on the date of adjourned hearing and assigns good cause for previous non-appearance. Such a defendant 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.
13. This Court in Kailash Nath (supra) held that Order IX Rule 13 applies where the ex parte decree has been passed. In contrast, Order IX Rule 7 applies where no decree has yet been passed but an order has been passed fixing a date for pronouncing ex parte decree. This Court held that if a defendant does not appear on the date fixed, the court may proceed in his absence but it did not stop the defendant from not appearing (sic) subsequently. If the defendant appears subsequently after passing of the ex parte order and shows sufficient cause for his previous non-appearance, then the court can hear the defendant and permit him to appear.
14. It has been submitted by learned counsel for the petitioners that the only difference in the case of Kailash Nath and that of the petitioners is that in the case of Kailash Nath Shukla, no date was fixed for delivery of judgement but in the case of the petitioners, however a date was fixed for delivery of judgment ex parte.
15. This Court has considered the submissions made by learned counsel for the petitioners and has gone through the order impugned and also the copy of the order sheet of the learned trial court relevant for the purpose and the questionnaire obtained by the petitioners from the learned trial court dated 19.11.2019. It is apparent therefrom that the petitioners were never served any notice of the pendency of the suit before 29.08.2014. On 29.08.2014 only a date was fixed to proceed ex parte and thereafter evidence of the plaintiffs was taken on affidavit and the matter fixed for delivery of ex parte judgment.
16. This Court is also convinced by the statement made on oath by the petitioners that in a similar case, namely, Regular Suit No.589 of 2010 filed before the learned Civil Judge (Junior Division), Court No.13, Barabanki for cancellation of Will and permanent injunction in respect of the same Will, the petitioners had appeared as defendants and had also filed their written statement and the suit was ultimately dismissed in default.
17. Learned counsel for the petitioners submits had the petitioners known of the filing of this suit, namely, Regular Suit No.477 of 2010, they would have certainly appeared and filed their written statement. The counsel who appeared allegedly on their behalf and filed vakalatnama on 25.08.2014 had never been engaged by the petitioners and they do not know him.
18. Learned counsel for the petitioners has also stated before this Court with sincerity that if the defendants are allowed to appear before learned trial court, they would not seek any unnecessary adjournment and the petitioners will try and get the said suit disposed of at the earliest as it is pending since 2010.
19. Consequently, the order dated 25.10.2019 passed by the respondent no.1 is set aside and the order passed by the learned trial court dated 26.10.2018 is affirmed.
20. The petitioners are directed to appear before the trial court and place all evidence before it as it has been stated that the written statement has already been filed by the defendants i.e. the petitioners before the learned trial court. The learned trial court may proceed thereafter and pass appropriate orders.
21. With the aforesaid directions, the writ petition stands disposed of.
Order Date :- 18.1.2020 Rahul