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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Harkesh Manuja, J.
Rukmani Devi - Appellant - Appellant
Versus
Ashok Kumar and others - Respondents - Respondent
CM-12377-C of 2023 in/and RSA-2873 of 2023 (O&M)
Decided On : 14-11-2023
Withdrawal of Application - Civil Procedure - Order 9 Rule 13 CPC, Section 96(2) of CPC - 19.03.2015 - 21.07.2023 - The court allowed the withdrawal of the application under Order 9 Rule 13 CPC and permitted the pursuit of the first appeal. The appellant-plaintiff's challenge to this decision was dismissed as the withdrawal was not assailed and the appellant was estopped from questioning the validity of the permission granted. The court emphasized the different scopes of proceedings under Order 9 Rule 13 CPC and Section 96(2) of CPC, and found no merit in the appellant's submissions regarding non-consideration of additional evidence.
Fact of the Case:
The appellant-plaintiff filed a suit for declaration and permanent injunction. Respondents No.1 and 2 were proceeded against ex-parte, and later filed an application under Order 9 Rule 13 CPC, which was withdrawn to pursue their first appeal. The First Appellate Court set aside the ex-parte judgment and decree and remanded the matter to the Trial Court.
Finding of the Court:
The court dismissed the appeal, finding no illegality or perversity in the reasoning recorded by the First Appellate Court. The Trial Court was requested to dispose of the suit within a year.
Issues: Challenge to withdrawal of application under Order 9 Rule 13 CPC, non-consideration of additional evidence, and delay in disposal of the suit.
Ratio Decidendi: The withdrawal of the application under Order 9 Rule 13 CPC and permission to pursue the first appeal was upheld. The court emphasized the different scopes of proceedings under Order 9 Rule 13 CPC and Section 96(2) of CPC, and found no merit in the appellant's submissions regarding non-consideration of additional evidence.
Final Decision: The appeal was dismissed, and the Trial Court was requested to dispose of the suit within a year.
HARKESH MANUJA J.
CM-12377-C-2023
Prayer in the present application is for preponement of the date of hearing in the main case, which is fixed for 23.01.2024.
On 07.11.2023, notice of the application was issued and accepted by Mr. Tanmoy Gupta, Advocate on behalf of contesting respondents No.1 and 2.
Having heard learned counsels for the parties and gone through the contents of the application, the same is allowed and the date of hearing in the main appeal is preponed from 23.01.2024 to today itself i.e. 14.11.2023, for its final disposal.
Main case
1. By way of present appeal, challenge has been laid to the judgment and decree dated 21.07.2023 passed by the Appellate Court, whereby, ex-parte judgment and decree dated 22.05.2017 passed by the Trial Court has been set-aside and the matter has been sent back to the Trial Court for deciding the suit afresh, upon hearing respondents No.1 and 2/defendants No.5 and 6.
2. Briefly stating, appellant-plaintiff filed a suit for declaration as well as seeking consequential relief of permanent injunction, claiming herself to be owner in joint possession to the extent of 1/7th share of the suit property, situated within the revenue estate of village Badshahpur, Tehsil and District Gurugram (Haryana).
3. In the aforementioned suit, respondents No.1 and 2/defendants No.5 and 6 were proceeded against ex-parte on 17.02.2016 and finally, the ex-parte judgment and decree dated 22.05.2017 was passed in favour of the appellant-plaintiff.
Later, respondents No.1 and 2/defendants No.5 and 6 filed an application dated 11.04.2018, invoking Order 9 Rule 13 CPC, praying for setting-aside the ex-parte judgment and decree dated 22.05.2017, wherein notice was issued and the proceedings remained pending. Simultaneously, respondents No.1 and 2/defendants No.5 and 6 also filed Civil Appeal No.19 of 2018 dated 25.04.2018, praying for setting-aside the ex-parte judgment and decree dated 22.05.2017, wherein also notice was served upon the appellant-plaintiff. While the aforementioned first appeal was pending consideration, respondents No.1 and 2/defendants No.5 and 6 got their statements recorded before the Trial Court, submitting that they wish to withdraw their application filed under Order 9 Rule 13 CPC, so as to pursue other remedy of first appeal as both the proceedings could not go hand-in-hand.
4. Vide order dated 05.07.2022, the Trial Court i.e. Civil Judge (Junior Division), Gurugram, permitted respondents No.1 and 2/defendants No.5 and 6 to withdraw their application under Order 9 Rule 13 CPC and liberty was granted in their favour to pursue their first appeal. Relevant part of order dated 05.07.2022 passed by the Trial Court, is reproduced hereunder:-
“Learned counsel for the applicants submitted that the present application was filed for setting-aside exparte orders under Order 9 Rule 13 of CPC. He further submitted that the applicants do not want to pursue further their present application. In view of the his submission, separate statement of applicant/defendant No.5 Ashok Kumar Kakkar and Sh. J.K. Maheshwari ld. Counsel for the both the applicants has been recorded wherein they jointly stated that exparte decree dated 22.05.2017 was passed in Smt. Rukmani Devi Vs. Rukmani and against the said decree both the brothers had filed the present application for setting-aside the exparte decree. They further stated that they have also filed civil appeal against the said decree and as per law out of both the remedies only one can be availed therefore, they withdraw the present application and the appeal which is pending in the court of Maj. Phalit Sharma, Ld. Additional District Judge, Gurugram shall be continued. Separate statement to this effect recorded in writing.”
5. The First Appellate Court vide judgment and decree dated 21.07.2023, upon recording that no service was ever effected upon respondents No.1 and 2/defendants No.5 and 6, set-aside the ex-parte judgment and decree dated 22.05.2017, while remanding the
The different scopes of proceedings under Order 9 Rule 13 CPC and Section 96(2) of CPC, and the principle of estoppel in challenging the withdrawal of an application.
A defendant must demonstrate justifiable reasons for absence to succeed in an application under Order 9 Rule 13 CPC.
The judgment emphasizes the need for substantial justice over technical considerations, warranting a full-length trial to investigate rival claims and the theory of probability.
The court emphasized the liberal construction of 'sufficient cause' for setting aside an ex parte decree and the need to balance the interests of both parties to prevent miscarriage of justice.
The Trial Court's decision in favor of the plaintiffs/respondent Nos. 1 and 2 and against the appellant without ensuring notice to the appellant and/or his counsel had been effected was in violation ....
The court emphasized the necessity of adhering to procedural rules under the Code of Civil Procedure to ensure that ex-parte decrees are justly administered and not issued without proper evidence of ....
The Court emphasized the importance of due consideration in ordering substituted service and the need for clear knowledge of the particular decree sought to be set aside.
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