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2008 Supreme(Raj) 1144
PRAKASH TATIA, J.
Badri Ram & Ors. – Appellant
Versus
Narayan Ram. - Respondent
Civ. Misc. Appeal No. 1033 of 2008
Decided On:- 10-11-2008
Mahesh Bora, for Appellants;
Rajeev Purohit, for Respondent.
Headnote:
O.9, R. 13, C. P. C. - Ex Parte Decree - Section 5 of the Limitation Act - 2004 (3) DNJ (Raj) 1506: (2005 AIHC 841), 2006 WLC (Raj) DC 666, 2006 (2) DNJ (Raj) 978, 2005,(1) DNJ (Raj) 228, 2004 (2) DNJ (Raj) 1028: 2004 AIHC 3436 - The court discussed the application filed under O.9, R. 13, C.P.C. and Section 5 of the Limitation Act, and referred to several judgments to establish the principle that mere change of advocate and leveling allegations against the advocate by changing the advocate may be tendency of the litigants but because of that reason, the litigant cannot get the relief when it is found that the allegation has been levelled upon the advocate only to hide his own lapses by the litigant. The court also emphasized the duty of the party to remain in touch with the advocate and the need for the party to explain the delay in filing the application. The court found that the trial Court committed error of law as well as error of facts in rejecting the application under Section 5 of the Limitation Act as well as application under O. 9. R. 13, C.P.C.
Fact of the Case:
The plaintiff filed a suit for possession against the defendant-appellants, alleging that they were running their shop in the suit property without permission. The defendants failed to file a written statement, and an ex parte decree was passed against them. They later filed an application seeking to set aside the ex parte decree.
Finding of the Court:
The court found that the defendants were engaged in the business of transportation and were not negligent. It held that the trial Court committed error of law as well as error of facts in rejecting the application under Section 5 of the Limitation Act as well as application under O. 9. R. 13, C.P.C.
Issues: The issues revolved around the defendants' failure to file a written statement, the delay in filing the application to set aside the ex parte decree, and the allegations against the advocate.
Ratio Decidendi: The court emphasized the duty of the party to remain in touch with the advocate, the need for the party to explain the delay in filing the application, and the principle that mere change of advocate and leveling allegations against the advocate by changing the advocate may be tendency of the litigants but because of that reason, the litigant cannot get the relief when it is found that the allegation has been levelled upon the advocate only to hide his own lapses by the litigant.
Final Decision: The application under Section 5 of the Limitation Act as well as application under O. 9. R. 13, C.P.C. were allowed on payment of cost of Rs. 10,000/- by the appellants to the respondent within a period of 15 days.
Key Points: - The court allowed the application to set aside the ex parte decree on payment of costs (!) (!) . - Allegations against an advocate solely to hide the party's own lapses will not entitle the party to relief (!) (!) . - A party must remain in touch with their advocate and explain any delay in filing applications (!) (!) .
What is the right of a party to file an application to set aside an ex parte decree under Order 9, Rule 13 of the Civil Procedure Code?
How should a court assess allegations against an advocate raised by a party seeking to set aside an ex parte decree?
What is the duty of a party regarding communication with their advocate and explaining delay in filing applications under the Limitation Act?
Heard learned counsel for the parties.
2. The appellants are aggrieved against the order dated 23-7-2008 passed by the Court of Additional District Judge No.3, Jodhpur by which the learned trial Court dismissed the appellants application filed under O.9, R. 13, C. P. C. as well as application under Section 5 of the Limitation Act seeking setting aside of the ex parte decree dated 21-8-2007.
3. Brief facts of the case are that a suit for possession was filed by the plaintiff-respondent against the defendant-appellants with the allegation that in the suit shop situated in commercial area i.e. Stadium Shopping Centre, Kalpatru Cinema Road, Jodhpur, the defendants-appellants were running their shop M/s. Mahadev Travels as licence of the plaintiff-respondent because of the reason that they had well acquaintance with he plaintiff. It is submitted in the plaint that ~ he defendants who are running commercial enterprises in the shop in dispute would hand over the vacant possession of the suit property as and when the possession will be demanded by the plaintiff. In the month of December 2004, the plaintiff came to know that defendants started material alteration in the suit premises which was objected by the plaintiff by sending telegram and thereafter the plaintiff demanded possession of the suit property from the defendants, In view of the above, according to the plaintiff, the defendants licence was terminated. The plaintiff also claimed mesne profit @ Rs. 25.000/- per month from the Month January. 2005 and in the suit, decree for Rs. 2 lacs as arrears of mesne profit was claimed. The said suit was registered in the trial Court only on 13-9-2006 and summons were issued to the defendants by order dated 18-9-2006. The summons issued to the defendants was not found served then on 311-2006, fresh summons were issued to the defendants for the date 14-12-2006. On 1412-2006, an application was filed for substitute service and that too, by publication of notice in the news paper which was allowed by the trial Court and by this mode of substitute service, the summons were served upon the defendants. On 25-1-2007, in response to the summons, the defendants advocate put in appearance and case was adjourned to 7-3-2007. On 7-3-2007, since the Presiding Officer was not available due to transfer. case was adjourned to 10-42007. On 10-4-2007, the case was adjourned to 24-4-2007. On 24-4-2007, right of the defendants to file written statement was closed as the written statement was not filed and case was adjourned to date 16-52007. After writing this order posting the case to 16-5-2007, learned counsel for the plaintiff requested for hearing of the application submitted by the defendants for extension of time for filing the written statement under Section 148. C.P.C. That application was dismissed on the same day i.e. 24-4-2007, On 16-5-2007 i.e. on the next date, affidavit of plaintiff was filed and case was adjourned for cross-examination of plaintiff to 25-5-2007. On 25-5-2007, nobody appeared on behalf of the defendants. Therefore, the trial Court proceeded to pass ex parte against the defendants and closed the evidence of the plaintiff and fixed the date 3-7-2007 for arguments. On 3-7-2007, due to transfer of Presiding Officer, case was adjourned to 25-7-2007. On 25-7-2007, the case was adjourned to 21-8-2007 and on the said date, the decree was passed for eviction against the defendants-appellants with a decree of Rs. 2 lacs as arrears of mesne profit and further decree for mesne profit @ Rs. 10.000/- per month till possession is delivered to the plaintiff.
4. Facing this decree dated 21-8-2007, the defendants submitted application under Order 9. Rule 13. C.P.C. before the trial Court stating therein that the plaintiff has filed absolutely frivolous suit by showing the defendants as licence as the defendants are running their business since last 15 years in the suit shop under oral agreement to purchase the properties. The defendants sub
