Prabhati Lal vs Smt Surji And Ors on 16 August, 2022

[Cites 12, Cited by 0]

Rajasthan High Court - Jaipur

Prabhati Lal vs Smt Surji And Ors on 16 August, 2022

1. Petitioner-plaintiff, by way of instant revision petition, has invoked the jurisdiction of High Court under Section 115 of the Code of Civil Procedure, against the order dated 7.8.2007 passed in Civil Misc. Appeal No.44/2001 by the Court of Additional District Judge, Neem Ka Thana, Sikar whereby and whereunder (Downloaded on 18/08/2022 at 09:02:56 PM) (2 of 22) [CR-126/2007] application filed by respondents-defendants under Order 9 Rule 13 CPC has been allowed on payment of cost of Rs.7000/- and the ex parte judgment and decree dated 9.4.2001, passed in Civil Suit No.23/1992 (B.T. No.5/1993) titled as Prabhati Lal Vs. Smt. Suraji Devi, for specific performance and permanent injunction, has been set aside, and simultaneously the order dated 16.7.2001 passed by the Court of Civil Judge (Junior Division), Neem Ka Thana, dismissing the application under Order 9 Rule 13 CPC has been quashed.

2. Matter came up on an application for extension of stay order dated 5.9.2007, however, since revision petition was pending for hearing since about 15 years, with consent of counsel for both parties, final arguments on the revision petition itself have been heard on merits.

3. Before adverting to the issue involved in the instant revision petition, it is necessary to recapitulate the facts of present case, as culled out from the record, which are as under:

3.1 Petitioner-plaintiff (hereinafter referred as plaintiff) instituted civil suit for specific performance and permanent injunction on 28.2.1992, jointly against respondents-defendants (hereinafer referred as defendants) alleging inter-alia that plaintiff was adopted by one Shri Meena S/o Sayar and being his adopted son became Khatedaar of agricultural lands measuring 23 Bigha 19 Biswa situated in Village Meena Ki Nagal, Tehsil Neem Ka Thana, District Sikar. In the revenue record, mutation of their lands was sanctioned on 31.8.1977 in name of plaintiff but since at that (Downloaded on 18/08/2022 at 09:02:56 PM) (3 of 22) [CR-126/2007] point of time, some unwarranted litigations were started against plaintiff to grab his lands, therefore, plaintiff had to execute an ostensible sale deed dated 5.12.1977 in relation to his lands of Khasras No.674, 675, 511, 490, 428 and 177 measuring 1.78 hectare (7 Bigha 1 Biswa), in favour of defendant No.1 Smt. Suraji. Plaintiff alleged that this sale deed dated 5.12.1977 was a fictitious document and indeed neither possession was delivered nor any sale consideration was received. Later on defendant No.1 agreed to re-transfer and for re-entering the lands in question, in the name of plaintiff in the revenue record and for this purpose one agreement dated 26.3.1986 was executed in presence of family members and relatives, on assurance to make payment of Rs.28,000/- by the plaintiff. It is further stated that Rs.20,000/-

was paid in cash to the persons who congregated at the time of execution of the agreement dated 26.3.1986, according to instructions of defendant No.1 and other family members and later on Rs.8000/- was paid to defendant No.1. It was averred that defendant No.1 was sister of plaintiff, and both were in cordial relations. But later on, when plaintiff came to know that defendant No.1 is going to breach the terms of agreement dated 26.3.1986 and is inclined to transfer the lands in question in favour of other persons, plaintiff had to institute the present civil suit on 28.2.1992. It appears that thereafter, defendant No.1 executed the registered sale deed dated 1.6.1992, therefore, plaintiff impleaded the subsequent purchasers as party defendants No.2 to 7 in the present suit.

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(4 of 22) [CR-126/2007] 3.2 Defendants put in appearance in the present suit before the trial Court and engaged advocate to appear and contest the suit on their behalf. It has been alleged by defendants that firstly, Advocate Shri Gajanand was engaged and later on after his death, Advocate Shri Gopal Lal was appointed to deal with the case. The trial Court granted time to defendants to file written statement, however, same was not submitted and advocate of defendants pleaded no instructions before the trial Court on 22.11.2000, and thereafter, the trial Court proceeded in the suit, ex parte against defendants.

3.3 It has been pleaded that advocate never informed to defendants about giving no instructions nor the trial Court issued any court notices to defendants thereafter. However, when defendant No.4 came to know on 21.3.2001 about the ex parte proceedings, he moved an application dated 22.3.2001 under Order 9 Rule 7 CPC was moved but since by that time, trial of suit has completed and final arguments have been heard, therefore, application was dismissed vide order dated 7.4.2001 and the suit was decreed ex parte against defendants vide judgment dated 9.4.2001.

3.4 The trial court, vide ex parte judgment and decree dated 9.4.2001 issued directions against defendants, to execute and register the sale deed for lands in question in favour of plaintiff, within a period of one month, failing which plaintiff shall be entitled to get the sale deed registered through Court. Simultaneously, defendants were also restrained by way of permanent injunction not to create any obstruction in use and (Downloaded on 18/08/2022 at 09:02:56 PM) (5 of 22) [CR-126/2007] occupation of lands in question by plaintiff nor to sale, transfer or otherwise encumber lands in question in any manner. 3.5 Thereafter, all the defendants jointly challenged the judgment and decree dated 9.4.2001 by way of filing Civil First Appeal No. 16/2001 on 8.5.2001, which was preferred within the period of limitation and simultaneously defendants also moved an application under Order 9 Rule 13 CPC before the trial Court, to set aside the ex parte judgment and decree dated 9.4.2001. 3.6 In the first appeal, defendants categorically contended that agreement dated 26.3.1986 is a fake document prepared by plaintiff just to grab the lands of defendants. It was stated in the memo of first appeal that defendant No.1 neither received any amount of Rs.28,000/- nor even delivered possession of the lands in question to plaintiff. It was categorically denied that sale deed dated 5.12.1977, made by plaintiff in favour of defendant No.1, was a fictitious, ineffective and ostentatious document. It was categorically contended in the memo of first appeal that defendant No.1 has transferred lands in question to defendant No.2 to 7 through registered sale deed 1.6.1992. It was contended that defendants (appellants in first appeal) are in possession of lands in question. It was urged that the trial Court has committed serious illegality in decreeing the plaintiff's suit for specific performance and passing decree for permanent injunction against defendants, hence same may be quashed and execution of impugned judgment and decree dated 9.4.2001, be stayed during course of first appeal.

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(6 of 22) [CR-126/2007] 3.7 It is relevant to notice here that in proceedings of civil first appeal No.16/2001, an interim stay order dated 20.10.2001 was passed with consent of both the parties that both parties shall maintain status quo in relation to lands in question. However, during course of first appeal, plaintiff got executed and registered a sale deed dated 31.8.2001 from defendant No.1 Suraji Devi. Whereas Suraji Devi had already transferred lands in question to defendants No.2 to 7 through registered sale deed dated 1.6.1992. It appears that plaintiff and defendant No.1, being brother and sister, entered into collusion and got executed the sale deed dated 31.8.2001, thereafter, moved an application dated 27.9.2004, in the first appeal that since in pursuance to the impugned judgment and decree dated 9.4.2001, sale deed dated 31.8.2001 has been executed in favour of plaintiff, therefore, the first appeal has become infructuous and as such same be dismissed. The subsequent purchasers defendants No.2 to 7, who were appellants in first appeal, filed reply to this application and opposed stating that they are the actual owner and in possession of lands in question. The defendant No.1 had already executed the sale deed dated 1.6.1992 in their favour, so if defendant No.1, has executed another sale deed dated 31.8.2001 in favour of plaintiff, that too during pendency of first appeal, the subsequent sale deed is of no significance. They also contended that a separate civil suit to declare this subsequent sale deed dated 31.8.2001 as null and void has also been instituted on 31.8.2004 against plaintiff Prabhati Lal and defendant No.1 Suraji Devi before the Court of Civil Judge (Senior Division), Neem Ka Thana, as both have entered into collusion.

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(7 of 22) [CR-126/2007] 3.8 It is also worthy to note here that later on when the application under Order 9 Rule 13 CPC was allowed vide order dated 7.8.2007 passed in Civil Misc. Appeal No.44/2001 by the Court of Additional District Judge, Neem Ka Thana, Sikar, the first appeal was dismissed as having become infructuous vide order dated 20.8.2007 with observation that impugned judgment and decree dated 9.4.2001 has already been quashed & set aside. Both orders dated 7.8.2007, allowing application of defendants under Order 9 Rule 13 CPC and order dated 20.8.2007, dismissing their first appeal as having become infructuous due to allowing application under Order 9 Rule 13 CPC, were passed by the same court i.e. The Additional District Judge, Neem Ka Thana, Sikar. 3.9 As far as application filed by defendants under Order 9 Rule 13 CPC is concerned, same was filed within limitation and it was stated therein that defendants were assured by their advocate to give information as and when their presence would be required in the present suit proceedings but their advocate did not appear before the trial Court on 22.11.2000 and pleaded no instruction without giving any prior information to defendants. It was stated that defendants were not aware that their advocate has pleaded no instructions and has not appeared on 22.11.2000 and the trial of the suit has proceeded against them in ex parte. However, when defendants came to know about ex parte proceedings on 21.3.2001, immediately an application under Order 9 Rule 7 CPC was filed on 22.3.2001 but same was dismissed vide order dated 7.4.2001 for the reason that on the date of filing application, trial of suit has been concluded and final arguments in ex parte have (Downloaded on 18/08/2022 at 09:02:56 PM) (8 of 22) [CR-126/2007] been heard. Hence, after passing judgment and decree dated 9.4.2001 in ex parte, the defendants filed an application to set aside the same. It was stated that there is sufficient reason for non-appearance of defendants on 22.11.2000, therefore, it was prayed that application be allowed and ex parte judgment and decree dated 9.4.2001 be set aside.

3.10 Plaintiff filed reply to the application under Order 9 Rule 13 CPC and opposed the same stating that defendants are negligent in pursuing the suit as they never filed written statement despite giving ample opportunities from the year 1992 to 22.11.2000. It was contended that defendants were having knowledge of suit proceedings, however, they themselves opted not to contest the suit and instructed their counsel to plead no instructions. Plaintiff alleged that application of defendants is not bona fide and defendants have also preferred the first appeal against ex parte and judgment dated 9.4.2001, therefore, the application under Order 9 Rule 13 CPC be dismissed.

3.11 Learned trial Court vide order dated 16.7.2001 dismissed the application under Order 9 Rule 13 CPC by drawing an inference that application under Order 9 Rule 13 CPC has been filed by misusing the process of law because firstly defendants did not submit written statements from the year 1992 to 2000, and thereafter, their advocate pleaded no instructions. The trial Court also observed that first appeal against ex parte judgment and decree is also pending.

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(9 of 22) [CR-126/2007] 3.12 Defendants assailed the order dated 16.7.2001, under the provision of Order 43 Rule 1(d) CPC by filing Civil Misc. Appeal No.44/2001 before the Court of Additional District Judge, Neem Ka Thana, Sikar.

3.13 In Civil Misc. Appeal No.44/2001 filed by defendants against dismissal of their application under Order 9 Rule 13 CPC, the Appellate Court quashed the order dated 16.7.2001 and allowed the application under Order 9 Rule 13 CPC on payment of cost of Rs.7000/- and set aside the ex parte judgment and decree dated 9.4.2001 vide its order dated 7.8.2001.

3.14 The order dated 7.8.2001 has been impugned by the plaintiff, by way of filing this revision petition, invoking the jurisdiction of the High Court under Section 115 of the Code of Civil Procedure.

4. Counsel for petitioner has vehemently argued that Appellate Court, in the impugned order dated 7.8.2007 itself has recorded a finding that reasons assigned by defendants in their application under Order 9 Rule 13 CPC for their non-appearance in the suit proceedings are not reasonable and fair, however, has allowed the application under Order 9 Rule 13 CPC and set aside the judgment and decree dated 9.4.2001, on payment of cost of Rs.7000/- by the defendants. He argued that civil suit was instituted wayback on 28.2.1992 and notices were served upon defendants. Defendants had put in appearance through advocate but did not submit written statement and thereafter, their advocate also did not appear, hence, the trial Court proceeded ex parte against (Downloaded on 18/08/2022 at 09:02:56 PM) (10 of 22) [CR-126/2007] defendants and passed the decree for specific performance and permanent injunction in favour of plaintiff vide judgment dated 9.4.2001. It has been argued that the defendants remained negligent and it is not just and proper to set aside the judgment and decree dated 9.4.2001 after lapse of such a long period. In such circumstances, the impugned order dated 7.8.2007 be quashed and the order dated 16.7.2001 passed by the trial court, dismissing the application under Order 9 Rule 13, be affirmed, so as to uphold the decree for specific performance and permanent injunction dated 9.4.2001, passed in favour of petitioner-plaintiff.

5. Counsel for petitioner has placed reliance on the judgment passed in Smt. Saroj Vs. Gyan Prasad Sharma [2002 (5) WLC (Raj.) 760], Madan Lal Vs. Prabhu Dayal [AIR 2009 Raj. 57] and one judgment dated 23.8.2018 passed by the Single Bench of Rajasthan High Court in Civil Misc. Appeal No.2165/2003:

Jhangiram Parwani Vs. Murti Mandir, Shrisitaram Ji Maharaj and other connected appeals.

6. Per contra, counsel for respondents-defendants submits that there is sufficient cause for non-appearance of defendants on 22.11.2000 when the trial Court passed an order to proceed the civil suit ex parte against defendants as their advocate pleaded no instructions, without giving any prior information to defendants and further the trial Court also never issued any Court notices to defendants thereafter. Counsel for respondents has argued that even if defendants were not vigilant in not filing the written statements, however the trial court has adjourned the matter during that period and marked absence of defendants only on (Downloaded on 18/08/2022 at 09:02:56 PM) (11 of 22) [CR-126/2007] 22.11.2000. Therefore, defendants are required to give a sufficient cause for their non-appearance for the date i.e. 22.11.2000 when the trial Court passed an order to proceed ex parte in the suit proceedings against defendants. He submits that defendants are litigants belonging to rural area and it would be injustice with them, if for non-appearance of their counsel on the date i.e. 22.11.2000, they were deprived to contest the suit for specific performance of contract. The order dated 7.8.2007 passed by the Appellate Court allowing their application under Order 9 Rule 13 CPC is just and proper, as such does not call for any interference by the High Court within limited scope of Section 115 CPC.

7. Having heard counsel for both parties and on perusal of impugned order dated 7.8.2007 as well as the record as a whole, this Court is required to consider the issue as to whether the order impugned dated 7.8.2007 calls for any interference by the High Court while exercising its powers under Section 115 CPC.

8. In order to deal with the issue falls for consideration before this Court, it would be appropriate to consider the few judgments delivered by the Hon'ble Supreme Court, while considering the matters related to allowing applications under Order 9 Rule 13 CPC.

9. Rule 13 of Order 9 envisages that in any case, in which the decree is passed ex parte against defendant, he may apply to the Court by which the decree was passed, for an order to set it aside and if he satisfies the court that summons were not duly served or (Downloaded on 18/08/2022 at 09:02:56 PM) (12 of 22) [CR-126/2007] that he was prevented by any sufficient cause from appearing when the suit was called for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment in the court or otherwise as it thinks fit.

10. In case of G.P. Srivastava Vs. R.K. Raizada [(2000) 3 SCC 54], the Hon'ble Supreme Court was dealing in the matter against the orders of the High Court and trial court, dismissing an application under Order 9 Rule 13 CPC, taking harsh view, about the reason assigned by defendant for absence of himself and his counsel and same was not treated as sufficient by the trial court and also by the High Court, the Hon'ble Supreme Court propounded the following parameters to deal with the application under Order 9 Rule 13 CPC, as observed in para 7 of the judgment:

"Under Order 9 Rule 13 C.P.C. 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 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 (Downloaded on 18/08/2022 at 09:02:56 PM) (13 of 22) [CR-126/2007] 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 penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide 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."

The Hon'ble Supreme Court has held that when defendant had put a reasonable defence to oppose the suit, and has given explanation of his non-appearance, showing a cause, further had approached the court for setting aside the ex parte decree with the statutory period, the trial court and also the High Court have adopted a very narrow and technical approach in dealing with the matter pertaining to the eviction. The ratio decidendi as expounded by Hon'ble the Supreme Court is that even if defendant was found to be negligent but when the application does not suffer from lack of bonafides, the other side could be compensated by costs and the ex parte decree could be set aside on such other terms & conditions as were deemed just & proper by the trial court. Obviously the terms & conditions should not be harsh & unrealistic.

11. In the provisions of Order 9 Rule 13 CPC, term "sufficient cause" has been used and same term is employed under Order 22 Rule 9 CPC, meant for to set aside the abatement or dismissal of the suit or appeal. The term "sufficient cause" also finds place in Section 5 of the Limitation Act. The Supreme Court in case of (Downloaded on 18/08/2022 at 09:02:56 PM) (14 of 22) [CR-126/2007] Ram Nath Sao Vs. Gabardhan Sao [AIR 2002 SC 1201] has held that expression "sufficient cause" within the meaning of Section 5 of the Limitation Act or Order 22 Rule 9 CPC or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to the party. In a particular case, whether explanation furnished would constitute "sufficient cause"

or not will be dependent upon facts of each case. There cannot be a straight jacket formula for accepting or rejecting explanation furnished for the delay or for non-appearance. It was observed by the Supreme Court that the Court should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. However, it was also observed that courts should not lose sight of the fact that by not taking steps within prescribed time, if a valuable right is accrued to the other party, same should not be lightly defeated. It was further observed that however by taking a pedantic and hyper-technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merits and finally it was held that while considering the matter, Courts have to strike a (Downloaded on 18/08/2022 at 09:02:56 PM) (15 of 22) [CR-126/2007] balance between resultant effect of the order it is going to pass upon the parties either way.

12. In case of Rafiq Vs. Munshilal [(1981) 2 SCC 788], the Hon'ble Supreme Court, while dealing the issue of restoration of appeal, dismissed due to non-appearance of appellant's counsel on the date of hearing, observed that whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent and answered the issue in the manner that obviously the answer to the question is in negative. This view has further been endorsed by the Supreme Court in case of Ram Kumar Gupta Vs. Har Prasad [(2010) 1 SCC 391].

This Court is of considered opinion that there cannot be and should not be any disagreement to such proposition of law that the litigant should not be made to suffer on account of any default or negligence on the part of his/her advocate but this equitable, sound and just principle of law cannot be allowed to be misused by any party to protract the proceeding of litigation and cannot be construed as a sheet anchor, so as to grant an advantage to an unscrupulous litigant to drag on the litigation for his own benefit. Thus, the proposition of law as propounded by Hon'ble the Supreme Court in cases of Rafiq Vs. Munshilal & Ram Kumar Gupta Vs. Har Prasad (Supra) be applied taking all due care & caution after considering the facts & circumstances of the case and as to prevent any miscarriage of justice with either of the party to the lis.

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13. In case of Lal devi Vs. Vaneeta Jain [(2007) 7 SCC 200], the Hon'ble Supreme Court was dealing an application under Order 9 Rule 13 CPC filed by defendant after dismissal of his application under Order 9 Rule 7 in a suit for specific performance, decreed in ex parte. It was observed that we are not delving into the technicalities of the legal questions argued before us because we are of the view that in the facts of this case the interest of justice demands that ex parte decree be set aside. We appreciate that the learned District Judge could not entertain an application under Order 9 Rule 7 CPC, and even the application under Order 9 Rule 13 was dismissed as not pressed. But nothing prevented the High Court from setting aside the ex parte decree in the appeal preferred against it.

14. Keeping in mind the dictum of law as discussed hereinabove, while considering facts of the case in hand, defendants have assigned a reason that on 22.11.2000, their advocate pleaded no instructions without giving any prior information to them and defendants are litigants belonging to rural area as such were not having any knowledge that their advocate has pleaded no instructions and have not appeared on their behalf in the suit and consequently, proceedings of suit have been proceeded ex parte. Thereafter, defendants came to know about ex parte proceedings on 21.3.2001 and moved an application under Order 9 Rule 7 on 22.3.2001 but same was dismissed vide order dated 7.4.2001 being filed at the stage when final arguments in the matter have been heard. Thereafter, when the suit was decreed in ex parte vide judgment and decree dated 9.4.2001, defendants filed an (Downloaded on 18/08/2022 at 09:02:56 PM) (17 of 22) [CR-126/2007] application under Order 9 Rule 13 CPC to set aside the ex parte judgment and decree. On considering the nature of litigation which is a suit for specific performance, filed against defendants and where the defendants are denying the agreement dated 26.3.1986 and further defendants No.2 to 7 have purchased the land in question through registered sale deed dated 1.6.1992, it may not be presumed that defendants would opt to remain absent and would not contest the suit deliberately and knowingly. Even if there may be some carelessness and negligence on their part in not filing written statement despite asking for ample opportunities but when they have given reason of their non-appearance on 22.11.2000, this Court does not deem it fit & proper that their application under Order 9 Rule 13 CPC be dismissed holding that reason assigned by defendants is not a sufficient reason.

15. As far as execution of sale deed dated 31.8.2001 by defendant No.1 in favour of plaintiff is concerned, same was executed during pendency of first appeal and prior to that, defendant No.1 has transferred the lands in question by executing sale deed dated 1.6.1992, in favour of defendants No.2 to 7. Therefore, as far as rights and possession of defendants No.2 to 7 are concerned, same are at stake and merely on account of getting execution of sale deed dated 31.8.2001, by plaintiff from defendant No.1, no equity falls in his favour.

16. In the given set of facts and circumstances, if the matter is seen holistically, there cannot be any justification to draw an inference that the application of defendants filed under Order 9 Rule 13 CPC suffers from any lack of bonafides. The defendants (Downloaded on 18/08/2022 at 09:02:56 PM) (18 of 22) [CR-126/2007] have not taken any undue advantage of non-appearance of their counsel in the present suit. The Appellate Court is obviously not correct in making an observation that the reason assigned by defendants is not reasonable and fair. A perusal of order of the Appellate Court as a whole goes to show that Appellate Court, after having considered the judicial pronouncements discussed in the previous part of judgment and taking into account the given facts and circumstances, allowed the application under Order 9 Rule 13 CPC to secure ends of justice. The final outcome of the order impugned passed by the appellate court does not lead to any miscarriage of justice to either of the party as the delay caused to plaintiff, due to set aside of ex parte decree, has been compensated by way of awarding cost and defendants have given opportunity to contest the suit proceedings in the nature of specific performance and permanent injunction. If the order impugned is tested on the anvil of maintaining the balance of equity between parties & whether any hardship is caused to either of party by the resultant effect of the order, this Court finds that it strikes a balance of the interest of both parties. Thus, this Court while exercising its revisional jurisdiction within the scope of Section 115 of the CPC, is not entering into the technicalities of the order passed by the Appellate Court when outcome of the order is just and proper as also subserve cause of justice. This Court may not lose sight that after allowing application under Order 9 Rule 13 CPC, the Appellate Court has dismissed the Civil First Appeal No.16/2001 vide order dated 20.8.2007 with observation that the appeal has rendered infructuous, since the impugned judgment and decree dated 9.4.2001 has been set (Downloaded on 18/08/2022 at 09:02:56 PM) (19 of 22) [CR-126/2007] aside by the trial court itself. On the basis of such facts from the record, it may not be observed that the Appellate Court has committed any material irregularity/illegality or jurisdictional error in allowing the application of defendants filed under Order 9 Rule 13 CPC by order impugned dated 7.8.2007 and, therefore, same need not to be interfered with by this Court, while exercising the jurisdiction under Section 115 CPC.

17. The issue with regard to the availability of remedy to defendant, when an ex parte decree is passed against him, the issue has been dealt with and answered by the Hon'ble Supreme Court in case of Bhanu Kumar Jain Vs. Archana Kumar [(2005) 1 SCC 787]. It was clearly held that when an ex parte decree is passed, the defendant (apart from filing a review patition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial Court merges with the order passed by the appellate Court, having regard to explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true. This ratio decidendi has been further reiterated and affirmed by the Hon'ble Supreme Court in case of Mahesh Yadav Vs. Rajeshwar Singh [(2009) 2 SCC 205]. Thus, it is no more res integra that against the ex parte (Downloaded on 18/08/2022 at 09:02:56 PM) (20 of 22) [CR-126/2007] judgment and decree, defendants may avail remedy of filing appeal thereagainst, as also may file application to set aside the ex parte decree but scope of interference is obviously stands on different yardsticks.

18. As far as the judgment passed by the Single Bench of Rajasthan High Court in case of Saroj Vs. Gyan Prasad Sharma [2002 (5) WLC (Raj.) 760], relied upon by counsel for petitioner is concerned, that was a case where tenant moved an application under Order 9 Rule 13 CPC to set aside the decree for eviction passed in ex parte. The trial Court as well as the Appellate Court dismissed his application with finding that defendant deliberately avoided to appear in the suit on several occasions and in that facts and circumstances, the High Court affirmed the dismissal of his application under Order 9 Rule 13 CPC. The application under Order 9 Rule 13 CPC filed by defendant-tenant was not found to be bona fide and therefore, the reason of non- appearance of his counsel was not accepted as sufficient cause.

19. In case of Madan Lal Vs. Prabhu Dayal [AIR 2009 Raj. 57] referred by counsel for petitioner, the Single Bench of Rajasthan High Court while considering the application filed by defendants tenant under Order 9 Rule 13 CPC in a suit for eviction, observed that defendant-tenant acted negligently and he lacks bona fides, therefore, the High Court allowed revision petition and dismissed his application.

20. In the judgment dated 23.8.2018 passed in Civil Misc.


Appeal    No.2165/2003:            Jhangiram            Parwani   Vs.   Murti



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Mandir, Shrisitaram Ji Maharaj and other connected appeals, the Single Bench of this Court while dealing the matter related to cancellation of sale deed of the pujari/private person for the lands belonging to minor deities/murti mandir vide ex parte decree, allowed the civil misc. appeals and applications filed by defendants under Order 9 Rule Rule 13 CPC, were dismissed, with findings that applications are delayed without showing any sufficient cause and further defendants have participated in suit proceedings and disappeared at the stage of final hearing and applications are not bonafides as well as the impugned judgment and decree was not treated in the nature of passed ex parte.

21. Therefore, judgments referred by counsel for petitioner as discussed hereinabove were delivered in different context and on different facts, which do not render any help to petitioner in the case at hand.

22. As a result, this Court is not inclined to interfere with the impugned order dated 7.8.2007 while exercising its jurisdiction under Section 115 CPC. Consequently, the revision petition is dismissed.

23. However, this Court finds that the present civil suit for specific performance and permanent injunction was instituted wayback on 26.2.1992, which was decreed in ex parte vide judgment and decree dated 9.4.2001 and the decree has been set aside by the Appellate Court vide order dated 7.8.2007, and thereafter proceedings of the Civil Suit No.23/1992 (B.T. No.5/1993) titled as Prabhati Lal Vs. Smt. Suraji Devi, for specific (Downloaded on 18/08/2022 at 09:02:56 PM) (22 of 22) [CR-126/2007] performance and permanent injunction have been revived on the file of the trial Court. But since, stay order dated 1.10.2007 was passed in the instant revision petition, staying the further proceedings of the civil suit, therefore, now after dismissal of revision petition on merits, it is expected from the trial Court that proceedings of the present civil suit may be expedited and the trial Court shall make an endeavour to decide of the present suit by concluding its trial within a period of two years from the date of receipt of certified copy of this order. It is needless to say that contesting defendants would be allowed to file written statements, if have not already filed and thereafter, the trial would be commenced in accordance with law.

24. There is no order as to costs.

25. All other pending application(s), if any, also stand(s) disposed of.

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