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SUPREME COURT OF INDIA
ASHOK BHUSHAN, K.M. JOSEPH, JJ.
ROBIN THAPA – APPELLANT(S)
VERSUS
ROHIT DORA – RESPONDENT(S)
CIVIL APPEAL NO.4507 OF 2019 (@ S.L.P.(C) No.35428 of 2017)
Decided On : 08-07-2019
Civil Procedure Code, 1908 – Order IX Rule 13 – Specific Relief Act, 1963 – Section 20 – Setting aside ex-parte decree – Suit seeking specific relief and mandatory injunction – Ordinarily, a litigation is based on adjudication on merits of contentions of parties – Litigation should not be terminated by default, either of plaintiff or defendant – Cause of justice does require that as far as possible, adjudication be done on merits – Specific relief is a discretionary relief – Interest of justice demands that subject to putting appellant on terms, opportunity should be given to appellant to contest case and case must be directed to be disposed of within time limit – Impugned order set aside subject to conditions that appellant will deposit a sum of Rs.67,400/- towards registration expenses within a period of one month in Execution Court – Appellant will further deposit a sum of Rs.50,000/- as costs to be paid to respondents – In case amounts as aforesaid are not deposited within stipulated period, appeal will stand dismissed and impugned order will stand confirmed. (Paras 8 and 13)
Facts of Case:
Instant appeal by Special Leave is directed against Order passed by High Court of Uttarakhand at Nainital allowing Revision Petition filed by respondent under Section 115 of Code of Civil Procedure, 1908 and setting aside Order passed by Trial Court under Order 9 Rule 13 of Code by which ex parte decree obtained by respondent in this appeal, has been set aside.
Findings of Court:
Matter arises from a suit for specific performance. It may be true that there is a case for respondent that appellant has actually let out building on rent. Appellant’s case is that this is appellant’s residential house and matter is a loan transaction. Specific relief is undoubtedly a discretionary relief. Appellant has submitted that appellant is prepared to deposit entire amount spent by respondent towards getting sale deed executed. Interest of justice demands that subject to putting appellant on terms, an opportunity should be given to appellant to contest the case and case must be directed to be disposed of within time limit.
Result : Appeal allowed conditionally.
JUDGMENT
K.M. JOSEPH, J.
1. The appeal by Special Leave is directed against the Order passed by the High Court of Uttarakhand at Nainital allowing the Revision Petition filed by the respondent under Section 115 of The Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) and setting aside the Order passed by the Trial Court under Order 9 Rule 13 of the Code by which the ex parte decree obtained by the respondent in this appeal, has been set aside.
2. The respondent, who is hereafter referred to as the plaintiff, filed the Suit O.S. No. 490 of 2013 seeking specific relief and mandatory injunction. By Judgment dated 09.10.2014, Civil Judge Senior Division, Dehradun decreed the Suit.
3. The petitioner, who is defendant in the Suit, filed an application dated 02.12.2015 supported by an application for condonation of delay. The respondent filed the objections, and as noticed, overruling the objections of the respondents, the Trial Court allowed the application filed by the petitioner under Order 9 Rule 13 of the Code, which has been set aside by the High Court.
4. The learned Counsel for the petitioner would submit that the original summons was served on 17.12.2013 on the mother of the petitioner. The Trial Court itself issued further summons on 23.04.2014. On 02.07.2014, the petitioner filed an application. Thereafter, the Suit came to be transferred to another Court, and thereafter, without any notice to the petitioner, the Suit came to be decreed.
5. Counsel for the appellant would submit that the property is the residential property. It is much more valuable than the amount shown in the agreement. The transaction was essentially a loan transaction and opportunity must be given to contest the matter on merits.
6. Per contra, the learned Counsel for the decree holder would submit that ample opportunity was given to the appellant, and in spite of the same, he has not contested the matter. Appellant has another residential building. The building in question was let out on rent.
7. Most importantly, the learned Counsel submits that after levying execution of the decree, the property has been conveyed to the respondent by the orders of the Court. In other words, sale deed has already been executed in her favour. It is respondent’s case that appellant was served notice by the executing court. There is no scope for interfering with the matter by this Court.
8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.
9. The disputed agreement is dated 18.04.2012. Summons was issued and it was received but according to the appellant, by his mother. The Trial Court has apparently accepted the case of the appellant that the mother did not bring the receipt of the summons to the notice of the appellant and that it was sometime in June, 2014 that the appellant can be credited with knowledge of the Suit. The Order dated 02.07.2014 reads as follows:
“On behalf of the plaintiff ex-parte evidence by way of affidavit (20A2) is filed.
The ex-parte proceeding against the defendant is allowed.
The application is submitted to engage an advocate by the defendant. However, the suit is declared ex-parte evidence, therefore, the same is rejected. Now the matter is fixed for ex-parte argument on dated 08.08.2014.”
10. Order further appears to reveal that the plaintiff was present in person. The plaintiff has filed his proof affidavit. It was decided to proceed against the appellant ex parte. There is, however, a reference to the application to engage an advocate by the appellant. The case stood posted for ex parte argument on 08.08.2014. As parties were not present on the said day, the case was posted to 15.09.2014. However, on 12.09.2014, the case stood transferred to another Court. No intimation was given und
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