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2005 Supreme(MP) 71
2006 (1) JLJ 119
N. K. Modi J.
Anil v. Somita Tar Product and others
Misc. Appeal No. 1211 of 2004: against the order of
X Additional District Judge. Bhopal, passed in M.J. C. No.3 of 2003;
Decided on 12.1.2005.
Sachin K. Verma for appellant;
Shekhar Sharma for respondent No. 1
Headnote:Civil P.C., 1908 -- O. 9 R. 13 -- setting aside of ex parte decree -words "was prevented by any sufficient cause from appearing" -- must be liberally construed to do complete Justice -- even if appellant is found to be negligent, other party can be compensated.
Respondent No.1 filed a suit against respondents No.2, 3 and also against the appellant for realization of Rs. 2,99,491.50 paise. Respondent No.2 is the company, and appellant and respondent No.3 were the employees of the company at the relevant time. The case was proceeded ex pW1e on 14.11.1995, as the counsel for respondent No.2 pleaded no instructions in the matter and ultimately on 31.7.1996, a decree was passed against respondents No.2, 3 and appellant.
On 24.1.2002, the appellant moved an application under order IX rule 13, CPC, alleging that on 14.1.2002 the brother of the appellant came to know that the Court has issued the warrant for attachment of the propel1y of the appellant. Thereafter, upon enquiry, the appellant came to know that an ex-parte decree has been passed in favour of respondent No. I and against respondent No.2 alongwith the appellant and respondent No.3. It was alleged that the appellant was working as Managing Director of respondent No.2 Company, from where he has resigned with effect from 30.9.1989. [Paras 2 & 3
Since the appellant resigned from the service of respondent No.2, therefore, appellant could not appear before the Court below because there was no personal case against the appellant. Learned counsel further submits that the learned counsel who was appearing on behalf of respondent No.2 Company also committed negligence in pleading no instructions without contacting the appellant, as the counsel was also watching the interest of the appellant. [Para 4
Held : Words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte.
Even if the appellant was found to be negligent the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the tri al Court. [Para 4
In view of the fact that the appellant has resigned from the post of Managing Director of the respondent No.2 Company and counsel of the appellant reponed no instructions without giving intimation to appellant and also keeping in view the aforesaid position of law, the impugned order dated 27.3.2004 passed in MJC 3/03 by the Court below, and consequently ex-parte decree dated 31-7-1996 in CS 1-8/92 so far as it is against the appellant, is set aside subject to payment of costs of Rs. 5,0001- (2000) 3 SCC 54 and (1998) 2 SCC 206 followed. 1996 JLJ 436 relied on. [Para 8
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1. Being aggrieved by the Order dated 27.3.2004 passed by 10th Additional Disctict Judge, Bhopal, in MJC No. 3/03, whereby 'the application filed under Order 9 Rule 13, CPC, for setting aside ex parte judgment and decree dated 21.7.96 passed in CS No. 1B/92 has been dismissed, the present appeal has been filed.
2. Short facts of the case are that respondent No.1 filed a suit against respondents No.2, 3 and also against the appellant for realization of Rs. 2,99,491=50 paise. Respondent No.2 is the company, and appellant and respondent No.3 were the employees of the company at the relevant time. The case was proceeded ex parte on 14.11.1995, as the counsel for respondent No.2 pleaded no instructions in the matter and ultimately on 31.7.1996, a decree was passed against respondents No.2, 3 and appellant.
3. On 24.1.2002, the appellant moved an application under order IX Rule 13, CPC, alleging that on 14.1.2002 the brother of the appellant came to know that the Court has issued to warrant for attachment of the property of the appellant. Thereafter, upon enquiry, the appellant came to know that an ex-parte decree has been passed in favour of respondent No.1 and against respondent No.2 alongwith the appellant and respondent No.3. It was alleged that the appellant was working as Managing Director of respondent No.2 Company, from where he has resigned with effect from 30.9.1989 which was duly accepted by respondent No.2 Company on that very day. It was further submitted that the appellant was not liable for any amount because the appellant• was the employee of the company. It was further submitted that it was the respondent No.2 Company who engaged a lawyer who was appearing on behalf of respondent No.2 and since appellant and respondent No.3 were also the party, therefore, the same advocate was watching the interests of appellant and respondent No.2 Company.
4. Learned counsel for the appellant; further submits that learned trial Court was very much impressed that after making the appearance in the civil suit by the appellant. the case was proceeded ex parte and the application for setting aside the ex parte decree was filed after a lapse of four years. Learned counsel further submits that Court below has not at all taken into consideration that the appellant was impleaded party to the suit because the appellant was employee of respondent No.2. Appellant has no interest in the properties of respondent No.2. He further submits that since the appellant resigned from the service of respondent No.2, therefore, appellant could not appear before the Court below because there was no personal case against the appellant. Learned counsel further submits that the learned counsel who was appearing on behalf of respondent No.2 Company also committed negligence in pleading no instructions without contacting the appellant as the counsel was also watching the interest of the appellant. Reliance was placed on (2000) 3 SCC 54 [G.P Shrivastava v. R.K. Raizada & others), wherein the Hon'ble Supreme Court has observed that words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 0 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion, in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstance anterior in time. If "sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when ex-parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooke
