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2022 Supreme(Gau) 360
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT AIZAWL BENCH
MARLI VANKUNG, J.
George Zosangzuala – Appellant
Versus
Lalchhawntluangi – Respondent
RFA No. 9 of 2020
Decided On : 31-05-2022
Important Points
Subject
Civil Law - Ex Parte Proceedings
Act Referred
Mizoram Civil Courts Act : S.17(2)(b)
Headnote
Civil Procedural Code, 1908 - Section 96(2) - Order VIII Rule 1 - Order V Rule 20 - Mizoram Civil Courts Act, 2005 - section 17(2)(b) – Appeal - Money Suit – Recovery with interest - plaintiff/respondent filed a case a in the court of Sr. Civil Judge for the recovery of Rs.8,00,000/- along with interest @ 12% p.a onwards - The plaintiff/respondent had invested Rs 8,00,000/- with the defendant who assured her that the invested money would earn a profit of Rs.1,92,000/- on its maturity date - whether learned trial court had erred in passing the order for the court to proceed ex parte against defendant due to non submission of w/s and thereafter proceeded with case wherein the defendant was not given the opportunity to cross examine plaintiff witness , since ex-parte proceedings were drawn against defendant - Court cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. (Para 14).
Findings of the Court :
Court finds that only point to be looked into in this appeal, is whether the learned trial court had erred in passing the order for the court to proceed ex parte against the defendant due to non submission of w/s and thereafter proceeded with the case wherein the defendant was not given the opportunity to cross examine the plaintiff witness, since ex-parte proceedings were drawn against the defendant and subsequently passed the impugned ex parte Judgment and order and decree - A perused of the order sheet of the trial court shows that an order/notice was served upon the defendant and in response the defendant/respondent had engaged a counsel to represent him and vakalatnama was submitted in the court, wherein was fixed for submission of w/s by the defendant no.1 - On 6.4.2018 none of the defendants appeared and the plaintiff prayed for service of notice through newspaper publication under Order V Rule 20 CPC by fixing court date, however since the ld Trl. Judge was on tour, was again fixed for newspaper publication. On 13.6.2018 since no newspaper publication was made, the plaintiff prayed for chance for newspaper publication and was fixed for newspaper publication - On 18.7.2018 it was noted that newspaper publication was not made however the ld trial court noted that the defendant no.1 nor his counsel appeared though vakalatnama was submitted and no written statement or written objection was submitted till date and concluded that the defendants have no interest in contesting the instant suit and decided to proceed ex parte against the defendants, fixing for framing of issues.
Result : Allowed
Advocate Appeared:
For the Appellants : Mr. C. Lalfakzuala, Mr. Lalremsanga, Ms. H. Lallawmsangi.
For the Respondents: Mr. K. Laldinliana, Ms. Lalramsangzuali.
JUDGMENT :
MARLI VANKUNG, J.
1. Heard Mr. C. Lalfakzuala, learned counsel for the appellant and Mr. K. Laldinliana, learned counsel for the respondent.
2. This is an appeal under section 17(2)(b) of the Mizoram Civil Courts Act, 2005 read with Section 96(2) CPC for filing the appeal against the impugned ex-parte Judgment and Order and decree dated 19.08.2019 passed by the learned Senior Civil Judge-IV, Aizawl.
3. The brief facts of the case is that the plaintiff/respondent filed a case a in the court of Sr. Civil Judge for the recovery of Rs. 8,00,000/- along with interest @ 12% p.a. w.e.f. 15.12.2014 onwards. The plaintiff/respondent had invested Rs 8,00,000/- with the defendant who assured her that the invested money would earn a profit of Rs. 1,92,000/- on its maturity date i.e. 20.12.2015. When no such recovery could be made even after the plaintiff waited for over a year beyond the maturity date, she filed the Money Suit No. 99 of 2017 in the Court of Senior Civil Judge-IV, Aizawl. Thereafter, the learned Trial Court due to the non-appearance of the defendant passed an order that the case will be proceeded ex-parte against the defendant Nos. 1 and 3 on 18.07.2018 and the Court proceeded to take evidence of the plaintiff/respondent and the Trial Court finally pronounced the impugned ex-parte Judgment and Order and decree dated 19.8.2019 in favour of the plaintiff/ respondent. Being aggrieved with the impugned ex-parte Judgment and Order dated 19.8.2019, the appellant has filed the present appeal.
4. The learned counsel for the appellant, Mr. C. Lalfakzuala submits that on 20.8.2018 despite the fact that the appellant and the defendant nos. 2 and 3 have failed to submit any written statement, the learned Trial Court had framed issues noting that issues were framed on the submission made by the parties. The learned Trial Court had accepted the examination-in-chief of the respondent/appellant and fixed 25.10.2018 for cross examination of the plaintiff witness however since the plaintiff witness was absent on 25.10.2018, the trial court dismissed the case due to non appearance and the case was later restored on 20.03.2019. On 08.05.2019, it appears that the parties were present through their counsels however since the plaintiff witness was absent, next date was fixed on 27.05.2019 where the matter was listed again on 19.06.2019 without giving an opportunity for cross examination of the witness by the defendant which then does not constitute and evidence. The appellant/defendant denies all the allegations made by the plaintiff/ respondent and submits that an opportunity may be given to submit their written statement or to cross-examine the respondent/plaintiff in order to bring out the truth.
5. The failure of the appellant to submit written statement on appearance in the Court was due to the ill health of his engaged lawyer in the Trial Court. This has prevented the appellant from defending his case from the trial court and the mentioned that the advocate had accordingly submitted an affidavit regarding his illness and his inability to appear before this Court and the appellant should not be made to suffer due to the non appearance of his learned counsel. In support of his submission, he has cited the Apex Court decision in the case of Rafiq and Another vs. Munshilal and Another, (1981) 2 SCC 788, Lal Devi and Another vs. Vaneeta Jain and Others, (2007) 7 SCC 200 and Neerja Realtors Private Limited vs. Janglu (dead) through Legal Representative, (2018) 2 SCC 649.
6. Mr. K. Laldinliana, the learned counsel for the respondent on the other hand submits that no error has been committed by the learned Trial Court in passing the ex-parte Judgment and Order and Decree dated 19.8.2019. He submits that the court had no alternative but accept the examination in chief of the respondent/plaintiff since none appeared on behalf of the appellant/defendant to cross examine the said witness at the relevant time, that the M.S. No. 99/2017 had been dis
