Allahabad High Court
Kamta Prasad vs Smt. Jaggiya And Others on 29 April, 1998
Equivalent citations: 1998(3)AWC2075
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. By means of an application for substitution filed on 1.7.1997, the applicants prayed for substituting themselves in the place and stead of the deceased petitioner. It is alleged that the sole petitioner-Kamta Prasad died on 19.11.1996 leaving behind the heirs as mentioned in paragraph 2 of the affidavit in support of the said application. The said application has been filed along with an application for condonation of delay. It appears that the application was filed after around 200 and odd days of the death. The limitation having expired after expiry of 150 days from death, the delay would be about of two months. In that view of the matter, the delay is condoned and the application for substitution is allowed. Let the cause title be amended accordingly incorporating names of the heirs of the deceased petitioner.
2. On 23.1.1985 an application for substitution in the place and stead of the deceased opposite party No. 4 was filed. Notices of the said application were sent and it was duly published in the newspaper as it appears from the report dated 7.5.1997. Therefore, substitution in the place and stead of the opposite party No. 4 is also allowed.
3. The application dated 1,2.1989 filed on 2.2.1989 for substitution of the opposite party No. 1, who died on 1.11.1988 is also allowed since being within time. The heirs of the deceased opposite parry No. 1 as mentioned in paragraph 2 of the affidavit supporting the said application, be substituted in the place and stead of the deceased opposite party No. 1.
4. An application for substitution in the place and stead of the opposite party No. 3 alleged to have died on 5.11.1992, filed on 3.2.1993 being within time is allowed. The original application which was filed on 3.2.1993 is not on the record. The same may be traced out and placed on record. In view of the delay involved in this matter, a copy of the said application filed in Court by Mr. Rajeshji Verma is taken on record. The said application is allowed. The heirs of the deceased opposite parry No. 3 mentioned in paragraph 2 of the affidavit in support of the application, be substituted in the place and stead of the opposite party No. 3. Records may be corrected accordingly.
5. It appears that notices of the writ petition were also issued and were accepted by all the opposite parties excepting the opposite party Nos. 1 and 6, who were again sought to be served. But no steps for service upon the said opposite party Nos. 1 and 6 appear to have been taken. It appears that ultimately notices upon the opposite parties were served through publication. Learned counsel for the petitioner submits that it was so published, which is on record. Thus, it appears that notices were duly served on all the opposite parties. Therefore, the matter appears to be ready as regards service, but no one appears on behalf of the opposite parties.
6. The matter appears to be very old filed sometimes in 1979 and was directed against an order dated 29th September, 1975. In such circumstances, the matter is taken up for hearing. Mr. Rajeshji Verma, learned counsel for the petitioner consented to the hearing and addressed the Court on merits of the case.
7. The petitioner filed a suit for injunction, against defendants who are three in numbers, being Suit No. 1354 of 1969 in the Court of Munsif, 3rd Court, Deorla. The suit was decreed ex parte on 24.11.1973. An application under Order IX, Rule 13. C.P.C. was filed on behalf of the defendants and Misc. Case No. 162 of 1974 was registered on the basis thereof. By an order dated 12.12.1974, the application under Order IX. Rule 13 was rejected and Misc. Case No. 162 of 1974 was dismissed. The defendants preferred an appeal being Misc. Appeal No. 5 of 1975 against the said order dated 12.12.1974. By an order dated 22 September, 1975, the said appeal was allowed, application under Order IX, Rule 13 was allowed and the ex parte decree dated 24.11.1973 was set aside. It is against this order, the present writ petition has been filed.
8. According to Mr. Rajeshji Verma, learned counsel for the petitioner, the order passed by the learned Munsif was perfectly justified and there being no perversity, the appeal court was wrong in interfering with the same. He contends further that the appeal court had overlooked the fact that only defendant No. 2 was alleged to have become ill and therefore could not appear. But no reason for non-appearance of defendant Nos. 1 and 3 having been pleaded, there was no ground available to the appeal court to set aside the decree as against defendant Nos. 1 and 3, who had filed their written statement and did not plead anything with regard to their absence. It is only defendant No. 2 who failed to appear and, therefore, at best the decree could be set aside only as against defendant No. 2. On that score according to the learned counsel, the appellate order cannot be sustained. He further contends that it was alleged that the defendant No. 2 was ill for about 15-16 days which is quite a prolonged one and the same cannot be said to be a casual illness. As such, the illness ought to have been proved through medical certificate which has not been done. Therefore, the appellate court had committed an error in believing such allegations purely on the basis of the affidavit particularly when no evidence was led to support such allegation, on the face of the affidavit filed by the petitioner denying the allegations made in the affidavit by the defendants. According to the learned counsel, oath having been pitted against oath, the Court could not have conclusively found that the ground of illness was proved and therefore, it had arrived at a wrong conclusion on the basis of such materials which is thoroughly inadmissible. He also contends on merits of the case that the defendants were very much aware of the proceedings and had deliberately avoided the same only to delay the process and harass the plaintiff. For all these reasons, the impugned order dated 22nd September, 1975 passed by the learned Civil Judge, Deoria in Misc. Appeal No. 5 of 1975, should be set aside.
9. I have heard Mr. Rajeshji Verma at length and perused the records placed before this Court as well as the orders copies whereof are annexed with the writ petition including certified copies thereof, as the case may be. From the order dated 24.11.1973 which is Annexure-1 (certified copy). It appears that the defendants were served and defendant Nos. 1, 2 and 3 had filed written statement and, the rest did not file the written statement, therefore, the suit proceeded ex parte against them. Defendant Nos. 1 and 3 also did not appear on the date fixed for issues, hence the suit was ordered to proceed ex parte against them also.
10. 'This order is recorded in the order dated 24.11.1973, whereas in the order dated 12.12.1974 which is Annexure-2 (certified copy), learned Munsif had recorded that 10.10.1973 was fixed for issues. On the said date as it appears from the certified copy of the order dated 12.12.1974 the applicants were not present before the Court, hence the Court had proceeded ex parte with the case and 6.11.1973 was fixed for ex parte evidence and on 6.11.1973 the suit was decided ex parte. It appears that there is material difference in the text of two orders inasmuch as in the order dated 24.11.1973, it has been mentioned after recording as noted above, that the plaintiff in support of his case examined himself as P.W. 1. He proved the plaint allegations. The papers filed by the plaintiff also support the case and, therefore, the suit was decreed. In the order dated 24.11.1973 it is not mentioned that the plaintiff was examined on 6.11.1973. It is also not mentioned as to on which date the order for hearing ex parte was passed and on which date the suit was heard ex parte. Though certified copies of the relevant orders have been annexed but the order-sheet has not been annexed to show that the learned lower appellate court was wrong in recording its impression of the order-sheet. The learned Munsif had recorded the dates as mentioned above and had disbelieved the illness of defendant No. 2 as pleaded in the said application and relying on Rule 21 of the Civil Rules and Order, held that unless the defendant No. 2 was authorised in writing, he was not supposed to look after the interest of the other defendants, and on the basis of such findings, he was of the impression that the applicants had moved the application in bad faith and had adopted harassing attitude towards the plaintiff and the application appears to be misconceived and therefore, dismissed.
11. The finding that the application appears to be misconceived, cannot be supported in the facts and circumstances of the case inasmuch as in order to set aside the ex parte decree, Order IX, Rule 13 is the procedure which is to be resorted to. Whether the ground mentioned therein is sufficient or not, is altogether a different question. Insufficiency of the ground does not make the application misconceived.
12. The learned Munsif had come to the conclusion that the application was made in bad faith simply because he did not find favour with the allegation of illness and that the defendant had adopted a harassing attitude towards the plaintiff because they did not appear on the date fixed, and that too when the suit was fixed for written statement and issues and on the date of ex parte hearing and thereafter on the date of ex parte decree. No where the learned Munsif had come of the finding that the defendants were aware of the dates fixed on 6.11.1973 and 24.11.1973 respectively. Then again, the date 6.11.1973 does find place in the order dated 24.11.1973.
13. In such circumstances, it was incumbent upon the petitioner to produce copy of the order-sheet so as to enable the Court to arrive at a proper conclusion. In the writ petition though a writ of certiorari is prayed for quashing Annexure-3, but no prayer for calling for the records is made, but that will not affect the situation since the petition was also inscribed to be one as under Article 227 of the Constitution of India as well. Even when issuing a writ of certiorari, the Court may call for the records inasmuch as the writ of certiorari also contemplates calling for the records. Then again. Article 227 enshrines superintendence by the High Court over subordinate courts which also requires calling for the records.
14. But then, no specific case has been made out either in the pleadings or in any application for calling for the records or that there are any discrepancies with regard to the findings as recorded in the respective orders. In the pleadings also, no where it has been mentioned that 6.11.1973 was the date fixed for ex parte evidence and that the petitioner had examined himself on 6.11.1973. On the other hand, it was mentioned that the suit was decreed on 24.11.1973. No such case was made out by the petitioner. Then again, the suit was instituted in 1969 and the ex parte decree was passed on 24.11.1973 and the appellate court order was passed on 22.9.1975 and the matter remained pending in this Court since 1979. It appears that one of the defendants, namely, defendant No. 4 had died sometimes in 1985 and the application for substitution in that regard was allowed to remain pending since January, 1986 till this date. From the records, it does not appear that the petitioner had taken any steps for expediting the matter. On the other hand, it appears from the order-sheet that on several dates steps were directed by the Court to be taken by the petitioner but the same were not so taken.
15. In such circumstances, having regard to the delay involved in -the matter and the manner in which the proceedings have been conducted, I do not think that any further time should be wasted in calling for the records. On the other hand, to my mind the orders recorded in the certified copies produced before this Court as has been and is being discussed in this order, is sufficient to decide the issue. It is also not the contention of Mr. Verma that the dates mentioned in the certified copy of the appellate order, are incorrect.
16. Perusal of the appellate court's order shows that it had scrutinised the order-sheet and had recorded a finding to the effect that a close perusal of the Judges note shows that on 29th August, 1973 due to negligence of the office summons were not issued, therefore, 10.10.1973 was fixed for written statement and issues. Later on the summons were received unserved and steps in 15 days were ordered. On 11.9.1973 steps were taken. On 10.10.1973 when the case was called out the petitioner-plain tiff was present and others were absent. Therefore, the suit was ordered to proceed ex parte against defendant-appellants and other defendant-respondents. On 6.11.1973 ex parte evidence was recorded and on 24.11.1973 the judgment was delivered. Thus, the fact remains that 10.10.1973 was a date fixed for filing written statement and issues, but there was no finding as to whether notices were served on the other defendants when summons were received back after service when steps were taken on 11.9.1973. Once summons were received unserved. It does not mention anything that there was anything noted that the summons were served on the other defendants. In the absence of any mention in the order dated 10.10.1973 that summons were duly served, there cannot be any occasion for directing the suit to be heard ex parte. The suit cannot be directed to be proceeded ex parte unless all defendants are duly served.
17. No copy of the order dated 10.10.1973 has been produced before this Court. Neither it is alleged in the writ petition that the other defendants were served and that the finding of the appellate court that the summons were not served on 29th August. 1973 due to negligence of the office and that summons were received later op unserved, was incorrect. This finding having not been contradicted by sufficient, pleadings and nothing having been shown to this Court through production of copies of the order-sheets, this Court feels that the finding recorded by the appellate court is correct and based on record as has been mentioned therein.
18. If the petitioner wanted to contradict the same it was incumbent upon him to incorporate sufficient pleadings to that extent and also to produce such records substantiating the same, which could very well be done through obtaining certified copies of the materials during long period of four years when the civil revision remained pending and/or between 22.9.1975. the date when appellate court order was passed and 29.10.1979 when the petition was filed. Though the delay has been sought to be explained on the ground that a civil revision was filed against the said order before this Court being Civil Revision No. 2076 of 1975 which was admitted on 26.11.1975 and further proceeding of the suit was stayed. The revision was dismissed on 18.7.1979 as not maintainable and, therefore, this petition was filed in 1979 which appears to be a sufficient explanation. But this cannot be an explanation for non-filing of certified copy of the orders through which findings of the appellate court could be contradicted. Though no prayer for calling for the records was made in the writ petition in the prayer clause yet no any application, nor even through oral prayer was also not made.
19. Now on the merits of the case, the appellate court had believed the allegation that defendant No. 2 was ill for about 15-16 days and therefore, he was prevented from appearing in the Court when the suit was decreed ex parte. The appellate court had further found that the records shows that appellant Nos. 1 and 3 (defendant Nos. 1 and 2) were residing outside and therefore, they could not come to the Court on the date fixed. He also found that it has come on record that appellant No. 2 (defendant No. 2) was looking after the case. He has also come to the conclusion that Rule 21 of the C. R. Rules was not applicable in cases of defendants and it is applicable to co-suiters which finding appears to be correct. He had believed that the defendant No. 2 had been looking after the case and defendant Nos. 1 and 3 who are his real brothers residing outside had relied on conduct of the case by the defendant No. 2.
20. That no medical certificate was produced as pleaded by Mr. Verma, is not sufficient to render the finding perverse when it comes to the question of belief and disbelief and on the basis of the materials before it the appellate court which is the last Court of fact, had come to a finding that defendant No. 2 Was ill and other defendants were prevented from appearing on the date fixed for sufficient reason. This Court while exercising writ jurisdiction, cannot interfere there being no perversity. On the basis of the materials as on record it appears to me it is not a fit case for interference with the finding of fact as recorded by the appellate court.
21. Then again, in view of the finding of the appellate court that the date was fixed for filing written statement and issues and in the absence of any record that all the defendants were served and the finding that the summons were received unserved and steps were directed to be taken, it does not seem that there was sufficient reason to proceed ex parte. If written statements were there, it was open to the Court to frame issues or it could not have recorded an order before directing ex parte hearing that the notices have been duly served, but still then the date was the first date for filing written statement after the steps were directed to be taken within 15 days and the steps having been taken on 11.9.1973 after previous notices returned unserved, the date being within one month, the Court should not have passed the order dated 10.10.1973 fixing the date for ex parte hearing.
22. While considering the question under Order IX, Rule 4 or 13 of the Code of Civil Procedure, 1908, it is necessary to find out as to whether the party had been able to show that there were sufficient reasons preventing him from appearing on the date fixed. The finding of sufficient reason does not confine the Court's enquiry only to the consideration of the reason that prevented the party from appearing. The Court has also to find out the totality of the situation, including the defect in its own procedure. In other words, it is incumbent on the Court also to find out as to whether in the circumstances of the case the suit could be dismissed or decreed ex-parte, as the case may be. Such question depends on the facts and circumstances of each case. The Court has to examine on the facts and circumstances of the case whether the passing of such order can be justified on the procedure adopted. If there is an infraction in the procedure, the same would amount to mistake or error or irregularity in procedure. It is, then, a mistake or error of the Court. If such mistake or error or irregularity comes to the notice of the Court, it is the duty of the Court to correct its own mistake or error or irregularity. None of the parties could be made to suffer because of any mistake or error or irregularity apparent in the procedure itself.
23. In the present case, as observed earlier, on the basis of the materials on record, that has been disclosed and discussed hereinbefore, the suit could not have been fixed for ex parte hearing on account of the absence of the defendants on 10.10.1973. It is a mistake or error or irregularity apparent on the records of the procedure followed by the Court. This is one of the factor that requires to be taken into consideration for deciding the issue involved in a proceedings under Order IX, Rule 4 or 13 of the Code as the case may be.
24. In any event, the appellate court having found on the basis of the records that there was sufficient reasons preventing defendant No. 2 as well as defendant Nos. 1 and 3 from appearing in the Court on the date fixed and since it has been so found, therefore, the contention of Mr. Verma that ex parte decree cannot be set aside as against defendant Nos. 1 and 3, cannot be sustained.
25. For all these reasons. I am not inclined to interfere with the order dated 22.9.1975. The writ petition therefore fails and is dismissed. No order as to costs.
26. However, before parting with the case, since the suit is very old namely of 1969, this Court expects that the same should be decided as early as possible preferably within a period of one year from the date of communication of this order to the Court below after giving proper notices to the parties and without being influenced by any observations made in this order.