IMPORTANT POINT
Defendant could not be made to suffer an ex-parte decree particularly when he was not at fault having duly instructed his Counsel to appear before Court.

Headnote:Civil Procedure Code, 1908 – Order 9 Rule 13 & Section 151 – Suit for specific performance deceased ex-parte – Appeal against the decree dismissed by High Court - Appeal – Plea for setting aside ex-parte decree in application was that both counsels engaged by defendant were bust in High Court & on account of some misunderstanding that other would attend the trial Court, neither them was present – On the same day Court proceeded ex-parte before noon & posted matter for judgment application u/s 151 CPC was moved by defendant – applicant – Court rejected application as not maintainable – It is on account of any unforeseen or unavoidable reason if was not possible for defendant or his counsel to be present in Court, Courtesy demanded that representation ought to have seen made before Court by any other Counsel – However having regard to totality of circumstances, appeal deserved to be allowed – Defendant could not be made to suffer ex-parte decree when he was not at fault, having duty instructed has Counsel to appear before Court – Passing of ex-parte decree in a case of this nature was too harsh a consequence to be upheld
       Held : Having regard to the totality of circumstances we are of the view that in the interest of justice this appeal must be allowed. The learned District Judge recorded evidence, heard arguments and posted the matter later in the day for delivery of judgment. If the Court had adjourned the proceedings to another day after deciding to proceed ex-parte, the defendant could have applied for being permitted to participate in the proceedings. In this case since everything happened on the same day the defendant did not get an opportunity to do so. The learned District Judge decided to proceed ex-parte. It thereafter examined the witnesses present in Court and proceeded to hear arguments. It reserved its judgment to be pronounced later in the day. Even before he could pronounce judgment counsel for the defendant had moved an application before him for recall of the order. It is true that in view of the law laid down by this Court in Arjun Singh (supra) the learned District Judge could not have entertained an application under Order IX Rule 7 C.P.C. We have also no hesitation in observing that counsel of the defendant were not careful enough to inform the learned District Judge about their pre-occupation before the High Court which prevented them from being present in his Court when the case was called for hearing. But the passing of an ex-parte decree in a case of this nature is too harsh a consequence to be upheld. The defendant cannot be made to suffer an ex-parte decree particularly when he was not at fault, having duly instructed his counsel to appear before the Court of the learned District Judge.
       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 the ex-parte decree be set aside. We appreciate that the learned District Judge could not entertain an application under Order IX Rule 7 C.P.C., and even the application under Order IX 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.
       (Para 15 & 16)
       Held : We direct the Court of District Judge who shall try the suit to proceed with utmost expedition so as to conclude the suit within a period of six months from the date on which the parties appear before him. He shall not grant adjournment unless it becomes absolutely necessary. To the extent possible he shall proceed with day-to-day hearing of the suit. (Para 18)

JUDGMENT

B.P. SINGH, J.—

1.Special Leave granted.

2.This appeal is directed against the judgment and order of the High Court of Himachal Pradesh dated August 29, 2005 and September 22, 2005 in R.F.A. No.133 of 1998. By the impugned judgment and order the High Court dismissed the appeal preferred by the defendants and affirmed the ex-parte decree for specific performance passed by the Trial Court by its impugned judgment and decree of January 7, 1998.

3.In view of the order that we propose to pass it is not necessary for us to consider in detail the facts of the case and the issues that arise in the suit, because we have reached the conclusion that the Trial Court was not justified in passing an ex-parte decree in the facts and circumstances of the case. We shall, therefore, notice the facts of the case only in so far as they are relevant for disposal of this appeal.

4.It is not in dispute that late P.S. Multani (Defendant) and late Jawahar Lal Jain (Plaintiff) were good friends. Late P.S. Multani owned a property known as Brombley Estate in Shimla which comprised of about 20 bighas of land with house and orchard (hereinafter referred to as “the property”).

5.The case of the plaintiff late Jawahar Lal Jain was that an agreement to sell the property to him was executed by late P.S. Multani on March 26, 1982 for a sum of Rs.4,20,000/-. A sum of Rs.40000/- was paid as earnest money. Despite his best efforts late P.S. Multani did not execute the sale deed. A suit for specific performance of agreement was filed before the High Court at Shimla on March 26, 1985. Ten witnesses were examined on behalf of the plaintiff. PW-8, S.C. Dave was under cross-examination which remained inconclusive and was deferred to August 27, 1993. The matter was subsequently adjourned for production of documents and record etc. The matter was listed before the Court on several dates and ultimately the matter came up before the Court on May 17, 1995. On that date no one appeared on behalf of the parties. It appears that some time in 1995 in view of the enhancement of the pecuniary jurisdiction of the Court of the District Judge, the matter was transferred and assigned to the Court of District Judge, Shimla for disposal. The record of the case also shows that thereafter the matter was fixed before the Trial Court on several dates and ultimately came up before the Court on January 7, 1998. On that day while the plaintiff’s witnesses were present as also his counsel, no one appeared on behalf of the defendant. PW-8 a witness who had been partly cross-examined was present but there was no one to further cross-examine him. Witness Rajinder Singh Sethi was examined as PW-10. The order of the Trial Court passed on that day is quoted below in extenso:-

“7.1.1998: Present: Plaintiff’s counsel Shri Deepak Gupta.

Witness PW-8 S.C. Dave and witness Shri Rajinder Singh Sethi.

None for the defendant. Hence proceeded ex-parte.

There is no one to further cross-examine PW-8 Shri S.C. Dave. Statement of Shri Rajinder Singh Sethi PW-10, has been recorded. Arguments heard. Put up for pronouncement of judgment in the after noon.

Sd/- District Judge, Shimla.

7.1.1998 : (Case called again for the pronouncement of the judgment)

After the evidence had been recorded and the ex-parte arguments had been heard and even judgment had been dictated to the P.A., an application was moved by the defendant’s counsel Shri R.L. Sood making prayer for the re-call of the order for pronouncement of judgment. Since the application has been moved after the hearing stood completed and the case was adjourned to post lunch session for pronouncement of judgment, the same is not maintainable in view of law laid down by the Hon’ble Supreme Court in “Arjun Singh Vs. Mohindra Kumar and others” A.I.R. 1964 S.C.993. Moreover, no ground, leave alone a sufficient ground, has been shown in the application for the absence of the defendant and/or his counsel when the case was called.

Per separate judgment placed on the

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2007 Supreme(SC) 718

IMPORTANT POINTDefendant could not be made to suffer an ex-parte decree particularly when he was not at fault having duly instructed his Counsel to appear before Court.

IMPORTANT POINT
Defendant could not be made to suffer an ex-parte decree particularly when he was not at fault having duly instructed his Counsel to appear before Court.