Meghalaya High Court
The Deputy Commissioner, vs . Monen Sangma on 21 May, 2019
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serials No. 15&16
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
MA (F) No. 1 of 2019 with
MA (F) No. 2 of 2019
Date of Decision: 21.05.2019
The Deputy Commissioner, Vs. Monen Sangma
Williamnagar
The Deputy Commissioner, Vs. Kuali Momin
Williamnagar
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner(s)/Appellant(s): Mr. S. Sen, Sr. GA with
Mr. A. Kharwanlang, GA
For the Respondent(s) : Mr. R. Kar, Adv. with
Ms. S.K. Singh, Adv.
i) Whether approved for reporting in Yes
Law journals etc.
ii) Whether approved for publication
in press: No
1) Since these two appeals concern the same and identical
subject matter, they are being disposed of by this common order.
2) Heard Mr. S. Sen, learned Sr. GA assisted by Mr. A. Kharwanlang, learned GA for the appellants and Mr. R. Kar, learned counsel for the respondents.
3) MAF No. 1 of 2019 has been preferred under Rule 35 of the Rules for the Administration of Justice & Police in the Garo Hills MA (F) No. 1 of 2019 with Page 1 of 26 MA (F) No. 2 of 2019 District, 1937 read with Order 43 Rule 1 and Section 151 of the C.P.C. assailing the Judgment and Order dated 10.09.2018 passed by the Learned Judicial Officer, East Garo Hills, Williamnagar in Misc. Application No. 7 of 2017 in L.A. Case No. 1 of 2014 rejecting the appellants‟ prayer under Order 9 Rule 13 of the C.P.C. praying for setting aside the exparte Judgment dated 26.07.2017 passed in L.A. Case No. 1 of 2017.
4) MAF No. 2 of 2019 has also been filed under the same above noted provision assailing the Judgment and Order dated 10.09.2018 passed by the Learned Judicial Officer, East Garo Hills, Williamnagar in Misc. Application No. 5 of 2017 in L.A. Case No. 2 of 2014 praying for setting aside the exparte Judgment dated 26.07.2017 passed in L.A. Case No. 2 of 2017.
5) The brief facts leading to these appeals are that during pendency of the reference proceedings under Section 18 of the Land Acquisition Act, 1894 in L.A. Case No. 1 of 2014 and L.A. Case No. 2 of 2014, Learned Special Judicial Officer, East Garo Hills, Williamnagar referred certain questions of law to this Court which was registered as Civil Reference No. 1 and 2 of 2017. This Court dismissed the References vide order dated 26.05.2017 and while remitting the matter back to the Learned Court below had directed the parties to appear before the Court of the Special Judicial Officer on 28.06.2017.
6) The appellants‟ case is that the order 26.05.2017 was neither communicated to the appellants nor to the Government pleader who was conducting the case before the Learned Court below. As such, when the matter came up before the Learned Court below on the date fixed, the appellants were not present. The Learned trial Court thereafter proceeded to decide the case exparte against the appellant and disposed of the matter in the appellants‟ absence resulting in the exparte Judgment dated 26.07.2017.
MA (F) No. 1 of 2019 with Page 2 of 26 MA (F) No. 2 of 20197) Aggrieved thereby the appellants herein, had filed an application under Order 9 Rule 13 of the C.P.C. being Misc. Application No. 7 of 2018 and Misc. Application No. 5 of 2018 before the Learned Court below praying for setting aside the exparte Judgment dated 26.07.2017. The said applications were heard and vide order 10.09.2018 the Learned Court below rejected the same. As such, these appeals against the order dated 10.09.2018 are now before this Court.
8) Mr. S. Sen, learned Sr. GA for the appellants submits that the matter concerns the assessment of compensation in respect of acquisition of land by the appellants for the purpose of Indo-Bangla fencing project. He submits that the respondents being dissatisfied with the compensation amount of Rs. 15,000/- per bigha as being wholly inadequate, had put a claim at Rs. 70,000/- per bigha as fixed by the G.H.A.D.C. which according to them was the appropriate rate of compensation. The counter/written statements by the appellants were filed therein before the court below, and that the respondents by referring to certain averments made in the counter statement as admission to the respondents‟ claims filed an application under Order 6 Rule 12 for grant of judgment of admission.
9) It is submitted by the learned counsel that during the course of hearing of the matter, the decision dated 30.09.2016 rendered by this Court in Mody M. Sangma vrs G.H.A.D.C came up for discussion, wherein it has been held that the G.H.A.D.C. did not have the legislative competency to prescribe the rates for land compensation. As such, he submits that the Learned Judicial Officer being faced with this situation, then referred the matter to this court under Section 113 of the C.P.C. for a decision.
10) The learned counsel submits that this Court however refused to answer the above reference on the ground that no cause for reference was made out and vide Judgment dated 26.05.2017 remitted the matter back for disposal in accordance with law.
MA (F) No. 1 of 2019 with Page 3 of 26 MA (F) No. 2 of 2019However, while remitting the matter back to the Learned Court below for disposal, this Court had fixed 28.06.2017 as the date of appearance of the parties. He submits that the said order was neither communicated to the appellants nor to the Government pleader to appear before the trial Court on the said date and as a consequence thereof due to the non appearance of the appellants on the said date, the Learned Court below disposed of the matter by an exparte judgment dated 26.07.2017.
11) Mr. S. Sen, learned Sr. GA then submits that an application under Order 9 Rule 13 of the C.P.C was then filed for setting aside the ex parte judgment dated 26.07.2017. He submits that non-appearance of the appellants was due to the fact that they had absolutely no knowledge about the order of this Court dated 26.05.2017 passed in Civil Reference No. 1 of 2017, as such were not aware about the appearance to be made on 28.06.2017. He submits that the Learned trial Court after hearing the application, then vide the impugned judgment and order dated 10.09.2018 rejected the same with the reasoning that the grounds on which the appellants sought to set aside the exparte judgment and order did not come within the ambit of any of the ground enunciated under Order 9 Rule 13 of the C.P.C.
12) The learned counsel further contended that while rejecting the application under Order 9 Rule 13 of the C.P.C. the Learned trial Court did not consider the law on the scope of the application of the said provisions and further submitted that the provisions under Order 9 Rule 13 of the C.P.C. must be liberally construed since the expression 'sufficient cause' appearing therein is capable of white import. To buttress his submission he had placed reliance on the Judgment of the Hon‟ble Supreme Court in the case of G.P. Srivastava vrs. Shri R.K. Raizada & Ors reported in 2000 3SCC 54 and submitted that the prepositions enunciated in the judgment still hold the field and even in the recent judgment in the MA (F) No. 1 of 2019 with Page 4 of 26 MA (F) No. 2 of 2019 case of A. Murugesan vrs Smt. Jamuna Rani rendered on 07.02.2019, the Hon‟ble Supreme Court has relied upon G.P. Srivastava‟s case. He submits that the Learned trial Court had adopted a hyper technical approach in dealing with the appellants‟ application under Order 9 Rule 13 of the C.P.C. which had resulted in its rejection.
13) The second contention of the learned counsel for the appellants is that the Learned trial Court focused on the fact that the appellants had been put on notice by this Court, vide order dated 26.05.2017, and that the plea of ignorance as advanced by the appellants was therefore immaterial and sufficient cause was not made out. This the learned counsel submits, is erroneous in law for the reason that the date given by this Court was merely for appearance of the parties and not for hearing. He submits that Order 9 Rule 13 of the C.P.C. clearly postulates that an exparte order may be set aside if the applicant can satisfy that he did not have any knowledge of the date of hearing. He goes on to submit that a plain reading of the direction of this Court contained in order dated 26.05.2017 would reflect that there is no direction for hearing and that the date was fixed only fixed for appearance. He further submits that the fixation of date was done by this Court only with an object for dispensing with the issuance of fresh notice to the parties and that the said direction contained in the order dated 26.05.2017 was not intended to be the date of hearing but only for appearance.
14) The learned counsel further submits that the expression 'date of hearing' as contemplated under Order 9 Rule 13 of the C.P.C. does not only mean appearance but involves something much more substantial. On this point i.e. the meaning of expression „date of hearing‟, the learned counsel had placed reliance in the case of Rasikal Manikchand Dhariwal & Anr. vrs M.S.S Food Products reported in 2012 2SCC 196 and in the case of Sushil Kumar Sabharwal vrs Gurpreet Singh & Anr. reported in 2002 5SCC 377.
MA (F) No. 1 of 2019 with Page 5 of 26 MA (F) No. 2 of 201915) The learned counsel submits that the expression „date of hearing‟ had been explained in these two judgments and next submits that the date prefixed by this Court for appearance was not the date of hearing and it was erroneous on the part of the Learned Court below to convert the date of appearance into the date of hearing by not giving the appellants notice thereof. The learned counsel for the appellants argues that this point of law is sufficient for setting aside the impugned order of the Learned Court below.
16) The learned counsel for the appellants next contended that the case was not indicated in the Cause List and that non- indication in the Cause List of the names of the counsel is enough to infer sufficient cause for not appearing. To substantiate his submissions, the learned counsel has cited the case of Hashmatullah vs District Magistrate/Adhyaksha Zila Parishad Basti & Ors. reported in (2000) 9 SCC 380. He also places reliance on the case of Hari Shanker vrs Gobind Prasad Jagdish Prasad & Ors. reported in (2001) 10 SCC 301. Both these judgments he states deal with non-appearance of the names of advocates in the Cause List and submits that the same constitutes sufficient cause for non- appearance.
17) The learned counsel for the appellants next contended that he has specifically pleaded on behalf of the appellants that they were not communicated the order of this Court dated 26.05.2017 passed in the reference proceedings and the averments sworn in the affidavit was by the responsible officer, as such there was no reason for the Learned Court below to disbelieve it or brush it aside. He strongly submits that the plea relating to the Cause List was never controverted by the respondents before the Learned Court below, and also that the Learned Court below did not return any finding on this count. He next submits that the respondents, to contest this point before this Court have enclosed copy of the Cause List dated 28.06.2017 along with the written arguments but however he submits MA (F) No. 1 of 2019 with Page 6 of 26 MA (F) No. 2 of 2019 that it only indicates the case number of the cases listed on 28.06.2017 and does not show other details such as names of the parties, names of the respective lawyers of the aforesaid case number. In conclusion, he submits that the proceedings under Order 9 Rule 13 were summary in nature and the Lower Court should have allowed the same on the basis of the circumstances as presented and lastly prayed that the impugned order be set aside.
18) Mr. R. Kar Learned counsel for the respondents firstly submits that the appeals are not maintainable as it had been preferred under Rule 35 of the Rules for the Administration of Justice & Police in the Garo Hills District, 1937, and as such on this point alone, the appeals should be dismissed. In reply to the submissions advanced by the learned counsel for the appellants submits that Section 53 of the Land Acquisition Act, 1894 provides that in a reference proceeding only those provisions of the C.P.C. are applicable which are not inconsistent with the provisions of the Land Acquisition Act, and submits that some provisions of the C.P.C. are by implication not applicable. He submits that, by operation of Section 12 (1) of the Land Acquisition Act, setting aside of an ex parte decree is not permitted, because by operation of Section 12, the award is final and therefore cannot be challenged except by way of appeal under Section 54 of the Act. The learned counsel has placed reliance in the Judgment of the Hon‟ble Supreme Court reported in (1995) 3 SCC 263 (Union of India & Ors. vrs. Pratap Kaur) and states that making the award under Section 26 of the Act, the Civil Court ceased to have power to alter the decree, except to correct clerical or arithmetical errors. He also placed reliance on decision of the Union of India vrs Swaran Singh & Ors. reported in JT 1996 (7) 431, which he states, has observed that after the reference court has granted the award, the only remedy available to the party is to file an application only for correction of clerical or arithmetical mistakes. Therefore, he submits that before the same Reference Court the only MA (F) No. 1 of 2019 with Page 7 of 26 MA (F) No. 2 of 2019 remedy available to any of the parties is to file an application for correction of clerical or arithmetical mistakes. He submits that in the instant case, the same is not for correcting clerical or minor mistakes but for setting aside the award/decree. To fortify his submissions, he cites the decision of the State of Maharashtra vrs. Maharau Srawan Hatkar reported in (1995) 3 SCC 316 and submits that the application is actually an appeal in disguise for setting aside the award/decree. He further submits that rightly or wrongly, the award has been passed whereby the Learned Reference Court had disposed of the reference proceedings and even in the present appeal pending before this Court, he points out that the instant appeal in substance is an appeal against the order dated 10.09.2018 and not against the judgment/decree dated 26.07.2017. He submits that this fact, it is evident from the condonation application filed along with the appeal where it has been expressly mentioned that the appeal is against the order dated 10.09.2018.
19) The learned counsel further submits that another procedural aspect which deserves attention is that the appeal against a final judgment/decree can only but under Order 41 of the C.P.C. and the principle of the Order 41 is applicable in an appeal against the award/decree passed by a Reference Court under Section 54 of the Land Acquisition Act. The learned counsel submits that he has placed these facts in view of the factual aspects concerning the case, inasmuch as, the appeal is categorically shown that it has been filed after 52 days delay and this delay is counted only from the date of passing of the impugned order 10.09.2018. In the context of the final award dated 26.07.2017, by the time these instant appeals were preferred, there was already a delay of more than 1 year 4 months. He submits therefore in guise of appealing against the order dated 10.09.2018, the appellants cannot covertly convert the application into an appeal against the final judgment/decree dated 26.07.2017.
MA (F) No. 1 of 2019 with Page 8 of 26 MA (F) No. 2 of 2019He submits that there being no connected prayer for condonation of this delay, the appeals suffer from this fatal defect.
20) Mr. R. Kar also contended that, only if and when, there is an appeal preferred against the final decree, can there be a remand order and that too in a rare situation. He submits that these situations are governed by Order 41 C.P.C. Rule 23 and 23A. He also submits that there is no bar against the learned counsel of the appellants for making prayer for remand, but an Appellate Court in exercise of its discretionary power, should first arrive at a conclusion that the final decree is unsustainable both in fact and in law.
21) Coming to the point of Order 9 Rule 13 and the case as set up by the appellants, he submits that this Court disposed of the reference on 26.05.2017 and had fixed 28.06.2017 a period of exactly 1 month to appear and for the appellants to be totally unaware about the said date would show that either he is lying or is negligent. He submits that in the normal course of things, it is unbelievable that the Deputy Commissioner or the Government pleader would remain silent without making any inquiry about the status of the case for so long. He submits that the Deputy Commissioner had actively engaged the Senior Govt. advocate to represent him in the hearing before the Division Bench and as such, he cannot now take the stand that he had no knowledge about the date fixed by this Court. The learned counsel for the respondents, cites the decision reported in AIR 1969 Patna 25, which speaks on this point, and states that Order 27 Rule 4 of the C.P.C. that the Government pleader in any Court shall be the agent for the Government, for the purpose of receiving the processes against the Government issued by the Court, and as such he submits that once the date was fixed in the presence of the parties, the Deputy Commissioner who was represented by the senior Government advocate, cannot plead ignorance about the date.
MA (F) No. 1 of 2019 with Page 9 of 26 MA (F) No. 2 of 201922. With regard to the submission regarding the Cause List advanced by the learned counsel for the appellants, the learned counsel for the respondents submits that like any other responsible advocate, the Government pleader ought to have checked the Cause List dated 28.06.2017, because in the Cause List, there was entry of the case and as such contended that the submission of the learned counsel for the appellants that there was no Cause List was a false statement and he cannot take shelter from the same. He further submits that from the annexed copy of the reference Court proceedings dated 12.06.2017 (Annexure 10 of the memo appeal), it is reflected that the case record was received back from this Court on 12.06.2017 and the Bench Assistant was directed to put up the case record on 28.06.2017. He submits therefore that the time period between 12.06.2017 and 28.06.2017, being more than two weeks, it is unbelievable that the Government pleader representing the appellants did not come across the Cause List dated 28.06.2017 even once.
23) Mr. R. Kar, submits that as per Order 9 Rule 13, it is not that the party praying for setting aside the decree can plead ignorance about any date, but his ignorance has to be about the date fixed for hearing. He submits that it is a matter on record that vide order 12.04.2017, the Reference Court had made a reference to this Court and in fact the Government pleader had appended his signature at the last page of the order dated 12.04.2017. He submits that the Reference Court on 12.04.2017 itself, had fixed the date for pronouncement of the final order, but however, had chosen to make a reference to this Court. He further submits that in the order dated 12.04.2017 itself, the Reference Court had in detail recorded therein, that hearing had taken place on that date itself. The Government pleader could have prayed for another chance to hear him but that was not the case. Mr. R. Kar, reads from the order dated 12.04.2017 which he submits clearly shows, that the final hearing had been done MA (F) No. 1 of 2019 with Page 10 of 26 MA (F) No. 2 of 2019 and that the order was being passed in terms of Order 12 Rule 6 of the C.P.C. As such, he submits that hearing having already been concluded in terms of the order dated 12.04.2017, the appellants cannot have any complaint about the order dated 28.06.2017 that no hearing was done. He submits that the conduct of the Deputy Commissioner is illegal and unsustainable and that he was trying only to delay the proceedings in the reference matter. He lastly submitted that in the light of the conduct and admission made to the claims petition by the respondents, nothing remains and no sufficient cause has been made out by the appellants to deserve consideration and as such the appeals should be dismissed with costs.
24) I have heard learned counsel for the parties at length and after considering the matter in all its perspective, and on the various points and submissions raised, the basic questions to my mind that arise for consideration are:-
i) Whether the provision under Order 9 Rule 13 would be applicable to proceedings under Land Acquisition Act, 1894 in view of Section 53 of the said Act.
ii) Whether the exparte decree/award dated 26.07.2017 had attained finality by virtue of Section 12 of the Land Acquisition Act and therefore cannot be challenged except by way of appeal under Section 54 of the said Act.
iii) Whether the present appeals which have been preferred under Rule 35 of the Rules for the Administration of Justice & Police in the Garo Hills District, 1937 is maintainable in view of the appellate provision contained in Section 54 of the Land Acquisition Act, 1894.
iv) Whether „sufficient cause' has been made out for setting aside the exparte degree/award in the event if the Order 9 Rule 13 application is held to be maintainable.MA (F) No. 1 of 2019 with Page 11 of 26 MA (F) No. 2 of 2019
v) Whether the trial Court had misconstrued the term „date of appearance‟ to mean the same as „date of hearing' as laid down under Order 9 Rule 13.
23) With regard to the first point for determination and consideration, Section 53 of the Land Acquisition Act is reproduced herein below:-
"53. Code of Civil Procedure to apply to proceedings before Court.- Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the [Code of Civil Procedure, 1908 (5 of 1908)], shall apply to all proceedings before the Court under this Act."
24) The above noted Section provides for the application of the provisions of the Civil Procedure Code to all the proceedings before the Court under the Land Acquisition Act, save and in so far as, the provisions of the Code may be inconsistent with anything contained in the Land Acquisition Act. The provisions contained in the Land Acquisition Act, do not speak or contemplate of an exparte award, or an exparte proceeding before a Reference Court, only Section 54 of the Act is provided for therein which deals with an appeal against an award. There is no specific provision that excludes an application under Order 9 Rule 13 CPC to a Reference Court or is there any alternate procedure prescribed for challenging an exparte award/decree passed by a Reference Court. This point on the applicability of an Order 9 Rule 9 and Rule 13 finds support and has been discussed in the case of Rajmani vrs Collector Raipur reported in (1996) 5 SCC 701. Paras 4 and 6 which are relevant for the case in hand are quoted herein below:-
"4. The question then is whether the application would be under Order 9 Rule 9 or Order 9 Rule 13 or Section 151(2)? It is settled law that the statement under Section 19 in terms of the objection under Section 18 of the Act is not treated as a plaint. Upon service of the notice on the claimant of interested person, he is treated to be a plaintiff and Land Acquisition Collector MA (F) No. 1 of 2019 with Page 12 of 26 MA (F) No. 2 of 2019 to be a defendant for the purpose of conducting the proceedings as envisaged under Section 22 of the Act. They are entitled to be represented by counsel. On receipt of the application, it is the duty of the claimant and burden is always upon him, who seeks higher compensation to adduce evidence and prove in the Court that the compensation awarded by the Collector was inadequate and that the acquired lands were possessed of higher value for award of the compensation to be just and adequate compensation. The Land Acquisition Officer is to rebut the evidence adduced by the claimant/interested person. The burden is always on the claimant. Ultimately, it is the duty and power of the court to determine just and adequate compensation on relevant facts and law sitting in the armchair of a prudent purchaser in an open market. If the notice is not served on the claimant, he is deprived of his valuable opportunity. If the award in such circumstances came to be passed after setting aside the claimant ex parte, though an appeal would lie under Section 54 of the Act against such an award, alternative remedy is also available. The appellate court may not be in a position to decide the correctness of the award except again to fall back upon the question whether notice was properly served on the claimant and whether his remaining ex parte is correct in law. That question could equally be gone into on an application filed by the claimant either under Order 9 Rule 9 CPC or under Order 9 Rule 13 or Section 151 CPC. We are of the view that the appropriate provisions that would be applicable to the claimant would be Order 9 Rule 9 read with Section 151 CPC. Therefore, he has rightly filed an application though under Order 9 Rule 13 but it could be treated as one under Order 9 Rule 9 read with Section 151 CPC. Section 26(2) of the Act declares that the award is a decree obviously as defined in Section 2(3) CPC and the grounds in support thereof is a judgment under Section 2(9) CPC. The appeal under Section 54 would be dealt with under Order 41 CPC.
6. Accordingly, we hold that an application under Order 9 Rule 9 read with Section 151 CPC is the proper remedy and procedure. The Additional District Judge has rightly entertained the application, setting aside the ex parte order."MA (F) No. 1 of 2019 with Page 13 of 26 MA (F) No. 2 of 2019
25) The question answered by this Judgment is clear that the provisions of the C.P.C. are applicable in so far as reference proceedings are concerned under the Land Acquisition Act, 1894 for setting aside an order of dismissal or of ex parte award. The Hon‟ble Supreme Court in the above noted judgment upheld the order for setting aside the ex parte order as passed by the Additional District Judge, (reference court). As such, it can be conclusively be held that the provisions under Order 9 Rule 13 are applicable to the proceedings under the Land Acquisition Act, inasmuch as, the said provision is not inconsistent with anything contained in the Land Acquisition Act as provided in Section 53.
26) The next point for consideration raised by the respondent, that the order/award cannot be challenged except by way of an appeal under Section 54 of the Land Acquisition Act, because an ex parte decree dated 26.06.2017 has become final by virtue of Section 12 of the Land Acquisition Act, is even on a cursory examination without any substance and merits no consideration. Section 12 of the said Act for ready reference is quoted herein below:-
"12. Award of Collector when to be final.- (1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.
(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made."
27) The said provision on plain reading provides that an award of a Collector shall except and hereinafter be final and conclusive between the Collector and the persons interested only as to the true area of land, value of land and apportionment of compensation. The clause „except as hereinafter provided' creates MA (F) No. 1 of 2019 with Page 14 of 26 MA (F) No. 2 of 2019 an exception to the finality clause and thus finality of the award of the collector is also dependent and subject to the other provisions of the Land Acquisition Act. Subsequent related proceedings provided in the Act, deal and relate to the reference proceedings and the award of the Reference Court is also open to further challenge in an appeal to the High Court, under Section 54 of the Act. The only difference between the award of a Collector and the award of a Reference Court is under Section 26 clause (2) the award of the reference court is deemed to be a decree within the meaning Section 2 clause (2) of the C.P.C.
28) The stand taken by the respondents, therefore, that the award being final and being equivalent to a Civil Court decree and that there exists no provision, except to correct clerical or arithmetical errors, has no bearing in the instant case, inasmuch as, the decision relied upon by the learned counsel for the respondents are in the context of inter-party proceedings and not exparte proceedings. Moreover, the instant case is not a case wherein an application has been filed to award additional benefits or to amend the decree under Section 151 and 152 of the C.P.C.
29) In the case of Sarup Singh vrs Union of India reported in 2011 (11 SCC) 198, the law laid down in this aspect is summarized in Paras 25, 26 and 27 and is quoted herein below:-
"25. In the present cases the judgment and order passed by the High Court before Amendment Act 68 of 1984 became final and binding as no appeal was brought to this Court thereafter. However, consequent to the amendment in the Land Acquisition Act, the appellants had filed civil miscellaneous applications for the grant of 30% solatium and 9% interest for the first year and 15% interest thereafter. This Court has also held in a catena of decisions that a decree once passed and which has become final and binding cannot be sought to be amended by filing petition under Section 151 and 152 CPC.MA (F) No. 1 of 2019 with Page 15 of 26 MA (F) No. 2 of 2019
26. In Union of India v. Swaran Singh (1996) 5 SCC 501 this Court held thus: (SCC p. 503, para 8) "8. The question then is whether the High Court has the power to entertain independent applications under Sections 151 and 152 and enhance solatium and interest as amended under Act 68 of 1984. This controversy is no longer res integra. In State of Punjab v. Jagir Singh 1995 Supp (4) SCC 626 and also in a catena of decisions following thereafter in Union of India v. Pratap Kaur (1995) 3 SCC 263; State of Maharashtra v. Maharau Srawan Hatkar (1995) 3 SCC 316; State of Punjab v. Babu Singh 1995 Supp (2) SCC 406 ; Union of India v. Raghubir Singh (1989) 2 SCC 754 and K.S. Paripoornan v. State of Kerala (1994) 5 SCC 593, this Court has held that the Reference Court or the High Court has no power or jurisdiction to entertain any applications under Sections 151 and 152 to correct any decree which has become final or to independently pass an award enhancing the solatium and interest as amended by Act 68 of 1984. Consequently, the award by the High Court granting enhanced solatium at 30% under Section 23 (2) and interest at the rate of 9% for one year from the date of taking possession and thereafter at the rate of 15% till date of deposit under Section 28 as amended under Act 68 of 1984 is clearly without jurisdiction and, therefore, a nullity. The order being a nullity, it can be challenged at any stage. Rightly the question was raised in execution. The executing court allowed the petition and dismissed the execution petition. The High Court, therefore, was clearly in error in allowing the revision and setting aside the order of the executing court."
27. In Union of India v. Rangila Ram (1995) 5 SCC 585 this Court held as follows: (SCC p. 586, para 4) "4. The point is no longer res integra. This Court has considered the scope of the power of the High Court under Sections 151 and 152 CPC and also under Section 13-A of the Act. This Court has held that once the civil court made an award as per law then in force MA (F) No. 1 of 2019 with Page 16 of 26 MA (F) No. 2 of 2019 which became final and that there is no error of law as on that date. Subsequent amendment does not give power to the court to amend the decree under Sections 151 and 152 CPC. This was held in State of Maharashtra v. Maharau Srawan Hatkar (1995) 3 SCC 316 and Union of India v. Pratap Kaur (1995) 3 SCC 263. In Maharau Srawan Hatkar case (1995) 3 SCC 316 this Court held that the civil court lacked inherent jurisdiction and was devoid of the power to entertain an application to award additional benefits under Amendment Act 68 of 1984. The facts therein were that the award had become final and Amendment Act 68 of 1984 had come into force on 24-9-1984. The respondents made an application under Sections 151 and 152 CPC to award enhance solatium and additional benefits, etc. and the civil court allowed and granted the same. In that context, considering the civil court's power under Sections 151 and 152 CPC, this Court laid the above law."
30) The above noted case which also summarizes the cases placed by the respondents deals only with situations of correction of errors and do not relate to cases under Order 9 Rule 13CPC. In view of the settled law position, the respondents‟ contentions as to the finality of the award under Section 12, and that the same should apply in the present case is misplaced and not accepted.
31) The third aspect of consideration on the contentions raised by the respondents is that the appeal under Rule 35 cannot be maintained and the same should have been preferred under Section 54 of the Land Acquisition Act which reads as under :-
"54. Appeals in proceedings before Court.- Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to [the Supreme Court] subject to the provisions contained in section 110 of the Code of Civil MA (F) No. 1 of 2019 with Page 17 of 26 MA (F) No. 2 of 2019 Procedure, 1908 (5 of 1908), and in Order XLV thereof."
32) This provision clearly provides that „an appeal shall only lie in any proceedings under this Act from the award, or from any part of the award of the Court‟. The plain meaning of this term will clearly imply that an appeal shall lie from the award or from any part of the award of the Court i.e. the Reference Court under Section 18. The order in appeal herein dated 10.09.2018 is neither the award nor part of the award, but is an order rejecting the application under Order 9 Rule 13 and therefore an appeal under Order 43 C.P.C. is maintainable. The provisions of Rule 35 of the Administration of Justice & Police in Garo Hills District, 1937 though not applicable in the instant case, it is however noted that the appeal has been preferred together along with Order 43 Rule 1 (d) read with Section 151 CPC. As the relevant provisions to maintain the appeal are present, wrong mention of the provision of law i.e. Rule 35, will not be fatal to the maintainability of the appeal.
33) From the foregoing discussions and the finding that an application under Order 9 Rule 13 will be maintainable, this Court now has to examine as to whether sufficient cause has been made out by the appellants to warrant the setting aside the exparte decree. The learned Court below vide its findings recorded in para 5, 6 and 7 had observed that "the defendant/applicant herein being represented by a counsel before the Hon‟ble High Court was well aware of the direction of the Hon‟ble High Court directing the parties to appear on 28.06.2017 and as such the arguments advanced by learned counsel for the defendant/herein applicant had no merits". The learned Lower Court further held that sufficiency of cause was not required to be deliberated upon for deciding the application.
34) The cause shown by the appellants was that there was communication gap between the different counsels, inasmuch as, no information was received by the concerned Government pleader MA (F) No. 1 of 2019 with Page 18 of 26 MA (F) No. 2 of 2019 about the date of appearance as fixed by this Hon‟ble Court, and as such there was failure on their part to appear on the date so fixed. Further, it is to be noted as urged by the appellants that the date, was fixed for appearance and not for hearing, within the meaning Order 9 Rule 13 C.P.C.
35) The circumstances and facts surrounding sufficient cause, date of appearance and date of hearing, the meaning and implications thereof, have to be examined against the peculiar facts and circumstances of this case while determining these appeals finally. Order 9 Rule 13, provides that an exparte decree against a defendant, can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or that he was prevented by sufficient cause from appearing when the matter was called on for hearing. It is settled law that unless „sufficient cause‟ is shown for non-appearance on the date of hearing, the Court has no power to set aside an exparte decree.
36) In the instant case this Court while disposing of the Civil References, vide order dated 26.05.2017 had put the parties to notice to appear on 28.06.2017 before the learned Lower Court. In view of the absence of the appellants on 28.06.2017, the matter was proceeded with exparte and an exparte judgment dated 26.07.2017 was rendered by the learned lower court. As argued and discussed, the appellants cause for non-appearance was due to ignorance of the date fixed by this Court. However, a vital point that is to be considered is that the order directed for appearance and not for hearing. The expression, date of hearing, was considered by the Hon‟ble Supreme Court in the case of Rasikal Manikchand Dhariwal vrs. M/s MSS Food Products reported in (2012) 2SCC
196. Paragraph 28 of the judgment is quoted herein below:-
"28. The hearing of a suit begins on production of evidence by the parties and suit gets culminated on pronouncement of the judgment. Under Order 18 Rule 1 of the Code, the plaintiff has a right to begin unless the defendant admits the facts alleged by the plaintiff MA (F) No. 1 of 2019 with Page 19 of 26 MA (F) No. 2 of 2019 and contends that either in point of law or on some additional facts alleged by him the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. On the day fixed for the hearing of the suit or any other day to which the hearing is adjourned, as per the provisions contained in Order 18 Rule 2, party having the right to begin is required to state his case and produce his evidence in support of issues which he is bound to prove. Under Order 18 Rule 2 sub-rule (2), the other party shall then state his case and produce his evidence. Under sub-rule (3-A) of Order 18 Rule 2, the parties in suit may address oral arguments in a case and may also avail opportunity of filing written arguments before conclusion of oral arguments."
37) In the case of Sushil Kumar Sabharwal vrs. Gurpreet Singh reported in (2002) 5SCC 377, in para 11 to 14 the Hon‟ble Supreme Court held as under:-
"11. The High Court has overlooked the second proviso to Rule 13 of Order 9 C.P.C, added by the 1976 Amendment which provides 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 plaintiff's claim. It is the knowledge of the "date of hearing" and not the knowledge of "pendency of suit" which is relevant for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service of summons; on the facts is a case of non-service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim which he did not avail and utilise.
12. The provision contained in Order 9 Rule 6 of the C.P.C. is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the Court depending on the given MA (F) No. 1 of 2019 with Page 20 of 26 MA (F) No. 2 of 2019 situation. The three situations are: (i) when summons duly served, (ii) when summons not duly served, and
(iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte. The provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being "proved" that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard exparte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons.
Any default or casual approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his. If only the trial court would have been conscious of its obligation cast on it by Order 9 Rule 6 of the C.P.C, the case would not have proceeded ex parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation.
13. Be that as it may, we are satisfied that the summons was not served on the defendant-appellant. He did not have an opportunity of appearing in the trial court and contesting the suit on merits. The trial court and the High Court have committed a serious error of law resulting in failure of justice by refusing to set aside the ex parte decree.
14. The appeal is allowed. The orders of the trial court and the High Court are set aside. The application under Order 9 Rule 13 C.P.C. filed by the defendant- appellant is allowed. The ex parte decree dated 9-10- 1993 is set aside. The proceedings of the trial court shall stand relegated back to 23-2-1993. The parties through their respective learned counsel are directed to appear before the trial court on 5-8-2002, on which date, the trial court shall appoint a date of hearing and proceed ahead with the hearing of the suit in accordance with law. No costs. Let the record of the MA (F) No. 1 of 2019 with Page 21 of 26 MA (F) No. 2 of 2019 trial court be transmitted back at the earliest accompanied by a copy of this order."
38) It is a fact as illustrated by the judgments quoted above that there is a marked difference between the meaning of date of hearing and date of appearance. In the instant case as projected by the respondents, the date of appearance would have to be considered against the fact that the hearing had been concluded before the matter travelled to this Court by way of the Reference Petition which then fixed the date of appearance. Though this argument is very attractive, however, the basic question that remains is that in an application under Order 9 Rule 13 the fact that deserves consideration is that it speaks about the date of hearing and not date of appearance.
39) As noted earlier this Court had directed for appearance of the parties vide order dated 26.05.2017, it is plainly understood from the said order that the parties were to appear and not that the said date was fixed for hearing of the matter. On non-appearance the learned Court below could have passed an order directing for exparte hearing but could not in my mind have set a date for pronouncement of judgment and order. The exparte order dated 26.07.2017 reflects that exparte hearing was conducted on 28.02.2017 and 28.06.2017. This Court had fixed 28.06.2017 for appearance and as such the order recording one of the dates of hearing as 28.06.2017 is erroneous, and therefore non-appearance of the appellants on the date fixed for appearance by this Court cannot be construed and understood to be non-appearance on the date fixed for hearing within the meaning of Order 9 Rule 13 C.P.C.
40) The term 'Sufficient Cause', has been dealt with in depth by the Hon‟ble Supreme Court in the case of Parimal -Vs- Veena @ Bharti reported in (2011) 3SCC 545, Paras 13 to 16, which are relevant for the instant case are reproduced hereinbelow:-
"13. "Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", MA (F) No. 1 of 2019 with Page 22 of 26 MA (F) No. 2 of 2019 inasmuch as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautions man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd., Lonand Grampanchayat v. Ramgiri Gosavi. Surinder Singh Sibia v. Vijay Kumar Sood and Oreintal Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn.)
14. In Arjun Singh v. Mohindra Kumar this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also Brij Indar Singh v. Kanshi Ram, Manindra Land and Building Corpn. Ltd v. Bhutnath Banerjee and Mata Din v. A. Narayanan. ) 15*. While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide State of Bihar v. Kameshwar Prasad Singh, Madanlal v. Shyamlal, Davinder Pal Sehgal v. Pratap Steel Rolling Mills (P) Ltd., Ram Nath Sao v. Gobardhan Sao, Kaushalya Devi v. Prem Chand, Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd. and Reena Sadh v. Anjana Enterprises.)
16. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is MA (F) No. 1 of 2019 with Page 23 of 26 MA (F) No. 2 of 2019 whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the vaied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application."
41) As laid down by the aforementioned judgment, to determine „sufficient cause‟ will be dependent on the peculiar facts and circumstances of every case, and for the Courts not to lose sight of the object of rendering or doing substantial justice.
42) In the case of G.P. Srivastava vrs. Shri R.K. Raizada & Ors reported in 2000 3SCC 54 the Hon‟ble Supreme Court at Para 7 held as under:-
"7. Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which MA (F) No. 1 of 2019 with Page 24 of 26 MA (F) No. 2 of 2019 had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits."
43) In the instant case, the ground put forward for non- appearance was that the Government pleader was not informed about the date fixed by this Court for appearance and more so that the date fixed was not for hearing. This Court has therefore to further examine whether there was any negligence or lack of bonafide on the part of the appellants to return a finding as to whether sufficient cause has been made out or not.
44) The peculiar facts surrounding this case are that the matter had travelled on Civil Reference before this Court which had fixed the date of appearance. It is not a case wherein the appellants had neglected to appear before the learned trial Court that led to the exparte hearing and decree. The only lapse to my mind is for the period when the matter was sent back and the appellants failed to appear due to ignorance of the date. Further as discussed above there is a clear distinction between date fixed for hearing and date fixed for appearance.
45) In the present case the non-appearance was not due to a lack of bonafides, but had been occasioned by other factors, such as the non-communication of the order of this Court to the Govt. pleader. Coupled with this is the fact that the date fixed was for „appearance‟ and not for „hearing‟ as stipulated by Order 9 Rule 13, which clearly postulates that an exparte order may be set aside if the applicant can satisfy the Court he did not have knowledge of the date of hearing.
46) Having given my thoughtful consideration to the entire facts and circumstances surrounding the case especially the fact that MA (F) No. 1 of 2019 with Page 25 of 26 MA (F) No. 2 of 2019 the matter was fixed for appearance and not for hearing apart from the fact that it was not indicated clearly in the Cause List of the learned trial Court, I have no hesitation in concluding after the detailed discussions that the learned Lower Court has misconstrued the meaning of „date fixed for appearance to be the same as „date of hearing‟. As such, „sufficient cause‟ has been made out to satisfy this Court to warrant interference and accordingly the orders dated 10.09.2018 are hereby set aside.
47) The Learned Lower Court to take up and dispose of the matter as expeditiously as possible. Parties put to notice to appear before the Lower Court on 24th June, 2019. Government Advocate to positively inform the Department and Government pleader concerned.
48) The appeals are allowed but in the facts and circumstances of the case, there is no order as to costs.
JUDGE Meghalaya 21.05.2019 "V. Lyndem PS"
MA (F) No. 1 of 2019 with Page 26 of 26 MA (F) No. 2 of 2019