Back
2010 Supreme(All) 2168
ALLAHABAD HIGH COURT
Tarun Agarwala, J.
Ritu Pistritto W/o J.C.Pistritto -Appellant
Versus
Swatantra Kumar S/o late Govind Ram Kapoor -Respondent
Writ Petition No.874 of 2010 (M/S)
Decided On : 09-07-2010
Important Points
Subject
Civil Law - Civil Procedure
Act Referred
Headnote
Order 9 Rule 13 - Civil Procedure - Order 17 Rule 2, Order 17 Rule 3, Order 9 Rule 13 - The court analyzed the provisions of Order 17 Rule 2, Order 17 Rule 3, and Order 9 Rule 13 of the Civil Procedure Code (C.P.C.) and discussed the circumstances under which each provision would be applicable. The court highlighted the distinction between the applicability of Rule 2 and Rule 3 of Order 17 C.P.C. and emphasized the discretion of the court to proceed with the case on merit under the Explanation to Order 17 Rule 2 C.P.C. The court also discussed the maintainability of an application under Order 9 Rule 13 C.P.C. and the requirement for verification of the application. The judgment provided a comprehensive analysis of the legal provisions and their application in the case.
Fact of the Case:
The case involved a dispute regarding the recall of an exparte decree passed by the trial court. The defendant filed an application under Order 9 Rule 13 of the C.P.C. seeking to set aside the exparte decree and contest the case on merits. The appellate court allowed the appeal and set aside the order of the trial court, granting the defendant an opportunity to contest the case on merits. The plaintiff filed a writ petition challenging the appellate court's decision.
Finding of the Court:
The court found that the decree passed by the trial court was an exparte decree, and the application under Order 9 Rule 13 of the C.P.C. was maintainable. The court also held that the application filed by the defendant was not barred by the principles of res judicata and was supported by a duly verified affidavit. The judgment of the appellate court was upheld, and the writ petition was dismissed.
Issues: The crucial question revolved around whether the trial court had proceeded with the case under Order 17 Rule 2 or under Rule 3, or under the Explanation to Rule 2 of the C.P.C. The court also addressed the maintainability of the application under Order 9 Rule 13 C.P.C. and the issue of res judicata.
Ratio Decidendi: The court's decision was based on the interpretation and application of the provisions of Order 17 Rule 2, Order 17 Rule 3, and Order 9 Rule 13 of the C.P.C. The court emphasized the distinction between the applicability of Rule 2 and Rule 3 of Order 17 C.P.C. and the discretion of the court to proceed with the case on merit under the Explanation to Order 17 Rule 2 C.P.C. The court also clarified the maintainability of an application under Order 9 Rule 13 C.P.C. and the requirement for verification of the application.
Final Decision: The writ petition was dismissed, and the trial court was directed to decide the suit within one year from the date of production of the certified copy of the order. No order was made as to costs.
Heard Mr. Sidhartha Singh, the learned counsel duly assisted by Mr. D. Barthwal, the learned counsel for the petitioner and Mr. Ramji Srivastava, the learned counsel duly assisted by Mr. Deepak Sharma, the learned counsel for the respondent.
2. The present writ petition has been filed against the order dated 29.05.2010 passed by the District Judge, Dehradun in Misc. Civil Appeal No.76/2010, whereby the District Judge allowed the appeal and has set aside the order passed under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as 'C.P.C.') and has further set aside the decree passed by the trial court.
3. The essential facts, which led to the passing of the decree by the trial court is, that on 31 st March, 2009, the right to adduce the evidence of the plaintiff was closed and the trial court fixed 20 th April 2009 for the evidence in chief of the defendant. The affidavit of the defendant and evidence was filed by the defendant on 23 rd April, 2009 and the court fixed 26 th May, 2009 for the cross examination of the defendant.
It transpires that on 26 th March, 2009 the plaintiff filed an application for the recall of the order dated 31 st March, 2009. This application was allowed by an order dated 29 th May, 2009 and the plaintiff was directed to file her evidence on affidavit on payment of cost of Rs.1000/- on or before 07 th July, 2009. The trial court fixed 07 th July, 2009 for the cross examination of the plaintiff.
4. It transpires that the trial court became vacant and accordingly, the case could not proceed on 07 th July, 2009. The ordersheet indicates that various dates were fixed on account of the vacancy of the court. In this regard, the plaintiff filed a writ petition No.1405 of 2009 (M/S) alleging that she was leaving for the United States of America on 30 th August, 2009 and that a direction be issued that her cross examination may be recorded by the trial court on or before 30 th August, 2009. The writ court disposed of the said writ petition at the admission stage itself without issuing notice to the defendant, by an order dated 25 th August, 2009 directing the trial court to cross examine the plaintiff petitioner before she leaves for the United States of America.
5. It transpires that the order of the High Court was filed before the trial court on 27 th August, 2009. Since the trial court was vacant, the file was placed before the District Judge, who by an order of the same date, transferred the case to the court of the Vth Additional Civil Judge (S.D.), Dehradun. The relevant file was placed before the court on 28 th August 2009 and the trial court issued notice to the counsel for the defendant as required under Rule 89-A of the General Rule (Civil) intimating him that the case would be taken up on 28 th August, 2009.
The process server intimated the court that the counsel for the defendant Sri J. K. Jain could not be found and that his Munshi (Clerk) had orally informed that Sri J. K. Jain was no longer appearing as the counsel for the defendant and that the file of the case had been taken away by the defendant. In the light of the report submitted by the process server, the court below found that the notices had not been served and issued directions for the issuance of a fresh notice and fixing 29 th August, 2009 as the next date. On 29 th August, 2009, the process server again submitted a report intimating that the chamber of Sri J. K. Jain was locked and, therefore, the notices could not be served. In the light of this report, the court fixed 31 st August, 2009 and directed that fresh 3 steps be taken for the issuance of notice to the counsel for the defendant.
6. On 31 st August, 2009, the plaintiff moved an application 20C praying that, by an error, the affidavit of plaintiff in chief could not be filed earlier pursuant to the order of the trial court dated 29 th May, 2009 and, therefore, prayed that the permission may be granted to file the affidavit. The court below
