Rajasthan High Court - Jodhpur
Amar Singh vs Rajkumar on 23 July, 2012
Author: R.S.Chauhan
Bench: R.S. Chauhan
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Amar Singh Vs. Rajkumar
S.B. Civil Misc. Appeal No.1031/2011
Appeal under Order 43 Rule 1(D)
of the Civil Procedure Code
against the order dated
16.03.2011 passed by Addl.
District Judge, Nohar, District
Hanumangarh in Civil Misc.
Application No.39/2003.
Date of Judgment: July 23, 2012
PRESENT
HON'BLE MR. JUSTICE R.S. CHAUHAN
Mr. R.S. Choudhary, for the appellant.
Mr. Kishan Bansal, for the respondent.
BY THE COURT:
The appellant is aggrieved by the order dated 16.03.2011 passed by the Addl. District Judge, Nohar, District Hanumangarh, whereby the learned Judge has dismissed an application filed by the appellant under Order 9, Rule 13 CPC, and refused to set aside the orders dated 21.08.2002 and 21.10.2002 and judgment and decree dated 20.01.2003 in Civil Original Suit No.43/2001 passed against the appellant.
[2]
In a nut-shell, the facts are that the respondent, Rajkumar, filed a suit for specific performance against the appellant, inter-alia, on the ground that appellant had sold a parcel of land to him by an agreement dated 28.08.2000. As part of the consideration, on the same day, he had paid the appellant Rs.80,500. It was agreed that the remaining amount of Rs.5,000 would be paid on the execution of sale deed. Although the agreement was registered with the Sub- Registrar, Nohar, on 15.05.2011, the sale deed was not executed. Therefore, the respondent-plaintiff sent a legal notice to the appellant on 22.05.2001 for execution of the sale deed. Despite the assurance given by the appellant, he did not get the sale deed executed. Hence, the respondent-plaintiff filed the suit for specific performance.
According to the appellant, after having received the notice, he engaged the services of a lawyer. The lawyer assured him that he will be informed about the progress of the case and he will be called for as and when needed. Despite the assurance given by the lawyer, he neither informed, nor called the appellant. Unfortunately, he did not even bother to file the written statement. Therefore, by order dated 21.08.2002 the appellant's right to file the [3] written statement was closed. Since no one appeared on behalf of the appellant, and since the appellant was unaware of the date of the trial Court, he did not appear before Court. Hence, by order dated 21.10.2002, the learned trial Court decided to proceed ex-parte against the appellant. Eventually, on 20.01.2003, the learned Judge passed an ex-parte judgment and decree against the appellant. On 27.02.2003, when the appellant met his counsel, he was informed that an ex-parte decree has been passed against him on 20.01.2003. Therefore, he immediately applied for a certified copy of the same. Having received the certified copy, he filed an application under Order 9, Rule 13 CPC for setting aside the impugned orders dated 21.08.2002, 21.10.2002 and the judgment dated 20.01.2003. However, by order dated 16.03.2011, his application has been dismissed. Hence, this appeal before this Court.
Mr. R.S. Choudhary, the learned counsel for the appellant, has vehemently contended that the learned Judge has failed to appreciate the issue in a holistic manner. The appellant happens to be an illiterate villager, who was trying to contest a civil suit, as the land in question, ad-measuring four bighas, belongs to him. It is out of this land that he [4] ekes out his living. In case he were to be deprived of this land, he shall lose his livelihood. Such a decree would not only impoverish him, but would also expose his entire family to untold financial hardships. Secondly, having entrusted his case to a lawyer, he was convinced that his lawyer would fight for his interest and rights. However, his lawyer never informed him about the dates. Due to the fault of the lawyer, an ex-parte decree was passed. Even after passing of the ex-parte decree, the lawyer did not bother to inform him about the eventual outcome. It is only when he visited his lawyer that he realized that an ex-parte decree had been passed. Immediately after coming to know about the ex-parte decree on 27.02.2003 he hired another lawyer. He filed an application under Order 9, Rule 13 CPC. Since his counsel was convinced that the limitation would be counted from the date of knowledge, he did not file an application under Section 5 of the Limitation Act seeking condonation of delay. However, the learned Judge has dismissed his application on the ground of limitation. Thus, the learned Judge has failed to notice the fact that a litigant cannot be made to suffer due to the fault of his counsel. Thirdly, the appellant had shown sufficient cause for his absence. For according to him, his wife was seriously ill, who needed medical attention. In fact, she had been hospitalized in [5] Bikaner. Despite the fact that his wife was ill, merely because the way from his village Nohar to Bikaner lies through Hanumangarh, the learned Judge seems to be of the opinion that he should have contacted his lawyer. Thus, without appreciating the full facts of the case, without realizing the economic hardship which would be caused to the appellant, the learned Judge has dismissed his application.
On the other hand, Mr. Kishan Bansal, the learned counsel for the respondent, has strenuously contended that once an ex-parte decree was passed, once the appellant had failed to show sufficient cause for his absence, the learned Judge was certainly justified in dismissing the application under Order 9, Rule 13 CPC. The learned counsel has further contended that it is the duty of the litigant to remain in touch with the counsel. Therefore, the blame cannot be put on the counsel for not having informed the appellant. Moreover, as no application under Section 5 of the Limitation Act was filed, the learned Judge could not have condoned the delay. Therefore, the learned counsel has supported the impugned order.
[6]
Heard the learned counsel for the parties, and perused the impugned order.
It is, indeed, a settled position of law that every person has the right to seek justice from a court. It is equally a settled principle of law that procedural law is the hand-maiden of justice, and is not master thereof. It is equally well settled that while appreciating the facts of the case, a court cannot be ignorant of the harsh realities which prevail in the society. While deciding a case under Order 9, Rule 13 CPC, the court is required to be sensitive to the plight of the litigant, rather than taking a pedantic or hyper- technical view of the situation.
Admittedly, the appellant is an illiterate villager who ekes out a living from the land in dispute. Therefore, the land is his only source of livelihood. In case he were to be deprived of the land, it would mean the economic death knell of the family. Although a civil suit may be pending but the trial Court cannot ignore the fact that right to livelihood is part of Article 21 of the Constitution of India - the heart and soul of the Constitution. Therefore before shutting the door on the face of the appellant, the learned trial Court should have considered the impact the impugned order [7] would have on the life of the appellant and his family members.
Although it is true that an application under Section 5 of the Limitation Act was not filed seeking condonation of delay, but Judges are not to act as a mute witness in a trial. In catena of cases the Hon'ble Supreme Court has clearly held that the Judges have to play a pro-active role. Therefore, once it was brought to the notice of the court that an application under Section 5 of the Limitation Act was not filed, it was expected of the learned Judge to seek reasons from the appellant for not having filed the said application. In fact, ample time should have been given to the appellant to file the said application. However, in the present case, the learned Judge has failed to perform his duty. The consequence of his studied silence is that the appellant is deprived of his right to contest the civil suit. Obviously, the procedural law cannot be permitted to create obstacles in the path of justice.
The most important issue before the court would be if the appellant had sufficient reasons for his non- appearance before the trial Court. According to the appellant, his wife was seriously ill; she had to be [8] hospitalized and had to be administered medicines. The appellant, as a husband, cannot be faulted for looking after the medical needs of his wife. Moreover, a litigant cannot be faulted for having relied upon his counsel to represent his case. Therefore, the appellant cannot be denied his right of access to justice merely because he was busy implementing his personal and social responsibilities and for his having trusted his lawyer.
In catena of cases, the Hon'ble Supreme Court has clearly held that a litigant cannot be punished for the fault of the lawyer. In case the appellant were prevented from contesting the civil suit, obviously, he will be punished for the fault of his counsel. Therefore, the stand taken by the learned Judge is certainly contrary to the principles established by the Apex Court.
The learned Judge has also overlooked the fact that while setting aside ex-parte decree, he had ample power to impose cost on the appellant. Since the learned Judge was required to do justice to both the sides, he could have, and should have, set aside the ex-parte judgment and decree, and other impugned orders while imposing a cost upon the appellant. After all, the respondent, who had [9] won the case ex-parte, needs to be compensated if the entire civil suit is to be reopened. Therefore, in the interest of justice, this Court directs the appellant to pay Rs.5,000 to the respondent.
For the reasons stated above, this appeal is hereby allowed. The impugned orders dated 21.08.2002, 21.10.2002 and the judgment and decree dated 20.01.2003 are quashed and set aside. The civil suit is restored to its original number. The civil suit shall begin from the stage prior to when the order dated 21.08.2002 was passed, provided the appellant pays Rs.5,000 to the respondent.
Since the case relates to the year 2001, the learned trial Court is directed to expedite the case and to decide the case preferably within a period of one year. The parties are directed to appear before the concerned Court on 21.08.2012.
(R.S.CHAUHAN), J.
arora/ [10]