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1986 Supreme(All) 419
High Court of Allahabad
A.N. Dikshita, J.
Balbir Singh Chauhan – Appellant
Versus
Vijai Kumar Agarwal – Respondent
Civil Revision No. 555 of 1986
Decided On : Dec 19, 1986
O.P. Singh, S.M. Dayal
Where an ex-parte decree is passed due to a mistake of the Court, the provisions of Order 9 Rule 13 CPC and section 17 of the Provincial Small Cause Courts Act are not applicable and the Court can set aside the ex-parte decree in exercise of its inherent power.
Headnote:
ORDER 9 RULE 13 CPC - PROVINCIAL SMALL CAUSE COURTS ACT, SECTION 17 - EX PARTE DECREE - SETTING ASIDE - MISTAKE OF COURT - ACTUS CURIAE NEMINEM GRAVABIT - INHERENT POWER OF COURT - APPLICABILITY OF ORDER 9 RULE 13 CPC AND SECTION 17 OF THE PROVINCIAL SMALL CAUSE COURTS ACT.
Fact of the Case:
The applicant filed an application under Order 9 Rule 13 CPC read with section 151 CPC for setting aside the judgment and order dated 18-3-1986 decreeing the suit ex-parte. The court below rejected the application on the ground that the applicant had failed to comply with the provisions of section 17 of the Provincial Small Cause Courts Act.
Finding of the Court:
The court held that the suit was heard and decreed ex-parte in the absence of the applicant (defendant) as no notice was either given to the applicant nor to his counsel either by the transferring Court or by the transferee Court. The absence of the applicant was neither deliberate nor can he be held to be negligent in pursuing the case. The absence of the defendant was caused on account of a mistake of the Court. Naturally the applicant cannot be allowed to suffer for such a mistake, error or omission of the Court and the applicant cannot be blamed for his non-appearance.
Issues: Whether the court below erred in rejecting the application under Order 9 Rule 13 CPC on the ground that the applicant had failed to comply with the provisions of section 17 of the Provincial Small Cause Courts Act.
Ratio Decidendi: The court held that the principle of "actus curiae neminem gravabit" i.e. an act of Court shall prejudice no one, is strictly applicable and fully attracted to the facts of the instant case. The court further held that the provisions of Order 9 Rule 13 CPC were not applicable in the present case as the absence of the applicant was caused on account of a mistake of the Court.
Final Decision: The revision was allowed and the judgment and order dated 4-8-1986 decreeing the suit was set aside. The case was remanded back to the trial court for disposal in the light of the observations made above and according to law.
A.N. Dikshita, J.
1. AGGRIEVED by the judgment and order dated 4-8-1986 passed by the 8th Additional District Judge, Kanpur City, in Misc. Case No. 16/74 of 1986, by which an application under Order 9 Rule 13 CPC read with section 151 CPC filed by the applicant for setting aside the judgment and order dated 18-3-1986 decreeing the suit ex-parte has been rejected, this Civil Revision has been preferred by the applicant.
2. IN a narrow campus the facts are that the plaintiff opposite party filed a suit for the eviction and recovery of arrears of rent against the applicant in the court of District Judge, Kanpur City. The applicant after putting in his appearance filed an application on 18-2-1986 praying for granting a month's time to file a written statement which was allowed and time up to 18-3-1986 was granted to file the necessary written statement. To ascertain certain facts and relevant dates the record of the lower court was summoned.
3. ON 21-2-1986 the suit pending in the court of the District Judge, Kanpur City, was transferred to the Court of 8th Additional District Judge, Kanpur City, for disposal according to law. ON 18-3-1986 when the case was taken up by the transferee Court i. e. the 8th Additional District Judge, neither the applicant was present in the said court nor any written statement was filed. Naturally orders to proceed ex parte in the suit were passed for the absence of the applicant. ON that very date i. e 18-3-1986 the 8th Additional District Judge, Kanpur City, decreed the suit ex parte. The applicant came to know about the suit having been decreed ex parte against him by the 8th Additional District Judge on 19-4-1986 The applicant filed an application under Older 9 Rule 13 CPC on 23-4-1986 for setting aside the decree passed ex parte and for the restoration of the suit to its original number for disposal according to law. The court below while disposing of the application under Order 9 Rule 13 CPC found that sufficient cause had been shown by the applicant for his non-appearance on 18-3-1986 for want of an information as regards the transfer of the case from the court of the District Judge, Kanpur City, to the court of the 8th Additional District Judge, Kanpur City as neither the counsel of the applicant nor the applicant himself was ever informed of such transfer. However, though accepting the reason as sufficient for the non-appearance of the applicant on 18-3-1986, the court below found that the application was not entertainable as the applicant had failed to comply with the provisions of section 17 of the Provincial Small Cause Courts Act and ultimately rejected the application filed by the applicant under Order 9 Rule 13 CPC for setting aside the decree passed ex parte by the order dated 4-8-1986.
4. THE rejection of such application has given rise to the instant Civil Revision. Learned counsel for the applicant, Sri O. P. Singh, has been heard Sri Sheo Mohan Dayal, Advocate, appeared for the opposite party and he, too, has been heard at some length.
5. OPPOSITE party, Vijai Kumar Agrawal, being the owner of premises 127/179, Agrawal Market Juhi Hamirpur Road, Kanpur, filed a suit against the applicant, Balbir Singh Chauhan for the eviction of the applicant and for the recovery of Rs. 6960.00/- besides mesne profits, water tax and costs of the suit etc. on 4-11-85. The suit was registered as SCC Suit No. 149 of 1985 on 4-11-1985 and summons were ordered to be issued against the applicant fixing 7-12-85 for the filing of the written statement. As summons were not received back 16-12-85 was ordered to be fixed for further orders and on that date it was found that the defendant had been served who may file written statement by 7-1-86. As the copy of the plaint was not available to the applicant on 7-1-86 the opposite party was ordered to supply the copy of the plaint within a week to the applicant and 18-2-86 was fixed for the filing of the written statement. On that date i. e. 18-2-1986 a pr
