1. Suit for specific performance — Ex-parte decree passed — Application to set aside ex-parte decree under Order IX Rule 13, CPC. (Para 3 , 4 )
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2019 Supreme(SC) 314
SUPREME COURT OF INDIA
R. BANUMATHI, R. SUBHASH REDDY, JJ.
A. Murugesan – Appellant
Versus
Smt. Jamuna Rani – Respondent
CIVIL APPEAL NO. 1545 OF 2019 [Arising out of S.L.P.(C) No.36394 of 2014]
Decided On : 07-02-2019
Important Points
IMPORTANT POINT
In an application under Order IX Rue 13 the court should confine itself to considering sufficiency or not of cause shown for not appearing in the matter on the date of hearing.
In an application under Order IX Rue 13 the court should confine itself to considering sufficiency or not of cause shown for not appearing in the matter on the date of hearing.
Subject
Civil Law - Setting Aside Ex Parte Decree
Act Referred
Headnote
Code of Civil Procedure, 1908 – Order IX Rule 13 – Trial court dismissing application for recall of ex parte decree considering past conduct of appellant ignoring cause shown for non-appearance on date of hearing – Held not justified – Court ought to confine itself to considering sufficiency or not of cause shown for not appearing in the matter on the date of hearing. (Para 11)
(2000) 3 SCC 54 – Relied upon
Facts of the case:
The respondent-plaintiff filed the suit for specific performance of the Agreement dated 11.10.1995. The appellant was put ex-parte, and ex-parte decree was passed, decreeing the suit.
Trial court refused to recall ex parte decree and appeal and revision thereagainst have also been dismissed.
Finding of the Court:
Application under Order IX Rule 13 ought to be allowed.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Appellant claims court boycott and illness as sufficient cause; Respondent argues the application is a tactic to prolong litigation. (Para 7 , 9 )
3. Trial Court erred by considering past conduct instead of focusing solely on whether sufficient cause existed for non-appearance on the specific hearing date. (Para 11 , 12 , 13 )
4. Sufficient cause for non-appearance under Order IX Rule 13, CPC refers to the date of absence and cannot be stretched to include anterior circumstances. (Para 11 )
5. Impugned orders set aside — Application under Order IX Rule 13, CPC allowed — Trial Court directed to dispose of the suit expeditiously. (Para 15 , 16 , 18 )
6. What is the scope of sufficient cause for setting aside an ex-parte decree under Order IX Rule 13, CPC?
Sufficient cause refers to the specific date on which the absence occurred and was used as a ground for proceeding ex-parte. It cannot be stretched to rely on circumstances anterior in time or previous negligence that was already overlooked. (Para 11 )
7. Can a court consider a party's past conduct or tendency to prolong litigation when deciding an application under Order IX Rule 13, CPC?
No. The court must confine its consideration to whether the party showed sufficient cause for non-appearance on the date the matter was called. Past conduct anterior to that date is irrelevant for determining sufficient cause. (Para 11 , 13 )
8. How should the expression prevented by any sufficient cause be interpreted by courts?
The expression should be liberally construed to enable the court to do complete justice between parties, especially when no negligence or inaction is imputable to the erring party. (Para 11 )
JUDGMENT :
R. SUBHASH REDDY, J.
1. Leave granted.
2. This civil appeal is preferred by the defendant, in Original Suit No. 92/1997 on the file of Sub-Judge, Chidambaram, aggrieved by the order dated 17.04.2014, passed by the High Court of Judicature at Madras, dismissing the Civil Revision Petition (NPD) No. 1202 of 2014. By virtue of the aforesaid order, the High Court has confirmed the order of the Trial Court, dismissing the application filed by the petitioner, under Order IX Rule 13 of CPC.
3. The respondent-plaintiff has filed the aforesaid suit for specific performance of the Agreement dated 11.10.1995. It is a case of the respondent-plaintiff that out of total consideration of Rs.3,00,000/-(Rupees Three Lakhs), he has already paid Rs.2,25,000/-(Rupees Two Lakh Twenty-Five Thousand) and in spite of his readiness to pay the balance amount, the appellant-defendant is not ready to execute the sale deed by receiving the balance consideration amount. During the trial, the aforesaid suit was listed for hearing on 16.03.2009. On the aforesaid date, on the ground that there was no representation on behalf of the appellant, the appellant was put ex-parte, and ex-parte decree was passed, decreeing the suit.
4. The appellant-defendant has filed the application under Order IX Rule 13 of CPC, for setting aside the ex-parte decree in I.A. No. 117/2009. In the aforesaid application, the case of the appellant was that on 16.03.2009, there was a boycott of all the courts on the call of Bar Association, as such, all the advocates boycotted the courts in the District of Cuddalore including Chidambaram District. He has also pleaded that as he was suffering from viral fever, he also did not attend the court. It is a case of the appellant that in spite of showing sufficient cause for not attending the court on 16.03.2009, the Trial Court has erroneously rejected the application filed under Order IX Rule 13 of CPC.
5. The Trial Court, while considering the application filed by the appellant herein, under Order IX Rule 13 of CPC, has considered the past events in the suit stating that the appellant is trying to protract the litigation dismissed the application by order dated 30.06.2009. Aggrieved by the said order, the appellant-defendant has filed Civil Miscellaneous Appeal No. 15/2009 before the Additional District Court/Fast Track Court No.1, Chidambaram. Same was dismissed by order dated 13.07.2010. The matter was further carried by way of Civil Revision Petition No. 1202 of 2014 before the High Court, which also ended in dismissal by order dated 17.04.2014.
6. We have heard the learned counsel for the appellant as well as the learned counsel for the respondent and perused the relevant material on record.
7. Mainly it is contended by learned counsel appearing for the appellant that on 16.03.2009, there was a total boycott of courts by the advocates in the District of Cuddalore including Chidambaram District, therefore, his counsel could not appear before the Court when the matter was called. Further, it is submitted that even the appellant was suffering from viral fever, as such, he also could not appear on the said date. It is pleaded that though there was sufficient cause shown, the Trial Court, erroneously by considering the past events anterior to 16.03.2009, has dismissed the application. It is contended that the appellate and the revisional courts also committed same error in rejecting the plea of the appellant by looking at the past events. It is mainly contended that when the application is filed under Order IX Rule 13 of CPC, the relevant consideration should have been confined to whether the appellant herein has shown any sufficient cause or not for not appearing in the matter when it was called on 16.03.2009. It is submitted that the reasons assigned in the impugned orders for rejection of the application is irrelevant. In support of his argument, learned counsel for the appellant has placed reliance on the judgment of this Court in the
