1992 Supreme(Raj) 750
RAJASTHAN HIGH COURT AT JAIPUR BENCH
G.S.Singhvi, J.
Smt. Kanchan Kumari Lunia - Appellant
Versus
Rajasthan Housing Board-(109) - Respondent
S.B. Civil Revision Petition No. 199 of 1992.
Decided On : 7-07-1992
Advocates:
For the Petitioner:Mr. J.P. Goyal, Advocate.
For the Non-Petitioner:Mr. Sudhir Gupta, Advocate.
Gross negligence in prosecuting a case is antithetical to the concept of 'good cause' under Order 9 Rule 7 CPC and cannot be a basis for setting aside ex parte proceedings.
Headnote:
ORDER 9 RULE 7 CPC - SETTING ASIDE EX PARTE PROCEEDINGS - GOOD CAUSE - INTERPRETATION - SUFFICIENCY OF CAUSE - GROSS NEGLIGENCE - REOPENING OF PROCEEDINGS - INJUSTICE - SECTION 115 CPC - INVOCATION OF JURISDICTION.
Fact of the Case:
Plaintiff filed a suit for declaration, possession, and permanent injunction against the defendant regarding a house allotted to her by the Rajasthan High Court Housing Board Scheme. The defendant raised an unlawful demand for a penalty, and the case proceeded ex parte after the defendant failed to appear despite multiple adjournments. The defendant later filed an application to set aside the ex parte proceedings, which the trial court allowed.
Finding of the Court:
The court found that the defendant had been grossly negligent in prosecuting the case, as evidenced by their failure to appear on multiple dates and their vague and bald averments in their application to set aside the ex parte proceedings. The court held that the defendant had not shown good cause for their non-appearance and that the trial court had erred in allowing their application.
Issues: 1. Whether the defendant had shown good cause for their non-appearance, as required under Order 9 Rule 7 CPC, to set aside the ex parte proceedings. 2. Whether the trial court had erred in allowing the defendant's application to set aside the ex parte proceedings.
Ratio Decidendi: 1. The court interpreted the term 'good cause' in Order 9 Rule 7 CPC to be synonymous with 'sufficient cause' and held that the defendant had not met the burden of proof to establish either. 2. The court held that the trial court had committed a serious illegality in accepting the defendant's application, as the defendant's negligence in prosecuting the case was antithetical to the concept of 'good cause'.
Final Decision: The revision petition was allowed, the order of the trial court setting aside the ex parte proceedings was quashed, and the defendant's application was dismissed. The defendant was, however, allowed to make oral submissions at the time of hearing before the trial court.
JUDGMENT
1. 1. The plaintiff-petitioner filed a suit for declaration, possession and permanent injunction against the defendant-non-petitioner in respect of house No.18-Ka-1 (Ground Floor) situated in (Lalkothi) Jyoti Nagar, Housing Board Scheme.
2. The suit was filed on 23.9.83. In the suit the plaintiff-petitioner prayed that after making allotment of House No. 21-K-6 (First Floor), she was asked to give option for allotment of alternate house in view of the fact that the house earlier allotted to her was to be used for allotment to the employees of the Rajasthan High Court, Jaipur Bench, Jaipur. After a lot of correspondence, the petitioner was allotted house No. 18-ka-1 (Ground Floor). The petitioner has claimed that she has fulfilled all the requirements and has a right to get possession of the house. However, the non-petitioner has raised an unlawful demand in the form of penalty.
3. The summons of the case were served on the non-petitioner as early as in January, 1984. Written statement was filed on behalf of the non-petitioner on 19.4.86. Issues were framed on 5.10.87 and the case was fixed for 8.12.87 for the evidence of the plaintiff-petitioner. Thereafter, the case was transferred from the court of Additional Civil Judge and Additional Chief Judicial Magistrate, Jaipur City, Jaipur, to the court of Additional Chief Judicial Magistrate, No. 1, Jaipur City. On 19.7.89, the case was adjourned for reply and arguments on an application filed by the plaintiff-petitioner under order 11 Rule-14 CPC. On 8.12.89 Shri Arjun Tolani, counsel for the non-petitioner in the trial court filed an application and sought adjournment on the ground that he has not received the file of the case. The case was adjourned to 23.2.90. On that day, none appeared on behalf of the defendant non-petitioner. The Court therefore, ordered that the case shall proceed exparte. Thereafter, the proceedings were taken on 11.5.90, 24.8.90, 12.10.90, 8.11.90, 14.11.90, 4.1.91. On 28.1.91, the evidence on behalf of the plaintiff was recorded and the case was fixed for arguments on 15.2.91. On 15.2.91, the arguments were heard and the case was fixed for judgment on 26.2.91. The judgment could not be dictated on 6.2.91, because, the Presiding Officer was busy in other cases. The Presiding Officer was transferred and, therefore, the case was fixed for re-hearing on 22.3.91. Time was thereafter, sought on two dates by the counsel for the petitioner to advance the arguments. On 3.5.91, an application under Order 9 Rule 7 was filed on behalf of defendant-non-petitioner. The case was adjourned on account of some condolence meeting on 25.5.91. on 22.7.91 neither the defendant nor anyone else appeared on its behalf and, therefore, the application filed on 35.91. on behalf of defendant non- petitioner was dismissed. The case was thereafter, fixed for arguments. Another application was thereafter, filed on behalf of the defendant-non-petitioner on 5.10.91 for setting aside the order dated, 23.2.90 for ex parte proceedings. This application was accompanied by an affidavit of Shri Nand Lal Sharma, Assistant Housing Officer. In the application it has been stated that the Officer Incharge Shri Bhatendra Singh had been transferred and the file could not be given to the new officer Incharge till 23.2.90, because, it was lying with the previous counsel. An application for setting aside exparte proceedings was filed on 22.7.91. The officer Incharge could not appear on account of his transfer to Kota and since the case had not entered in the diary of the Lawyer, he also could not appear before the Court. The non-appearance of the defendant-non-petitioner was not intentional. A reply to this application was filed on behalf of the petitioner for opposing the request of the defendant-non-petitioner. After hearing the parties learned Additional Civil Judge No. 1 Jaipur City, Jaipur, has vide his impugned order dated, 15.11.91. allowed the application filed on behalf of the defendant-
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