Back
2012 Supreme(MP) 967
MADHYA PRADESH HIGH COURT AT INDORE BENCH
S.K.Seth, J.
Day Aram and Others - Appellant
Versus
Puniya and Others - Respondent
W.P.No.10623 of 2010
Decided On : 21-09-2012
The focus of the court's decision was on whether the absence of the defendant or his counsel was justified for any reasonable and sufficient cause in the context of recalling the ex parte judgment and decree.
Headnote:
Ex Parte Judgment - Recall of Judgment - The court set aside the ex parte judgment and decree and directed the trial court to decide the civil suit on merit. The appellate court failed to decide and record any findings why the decision of the trial court in the recall of judgment was bad. The question before the courts was to adjudge whether the absence of the defendant or his counsel was justified for any reasonable and sufficient cause.
Fact of the Case:
The plaintiffs filed a suit for permanent injunction against the respondents, which was decreed ex parte. The respondents applied for the recall of the ex parte judgment and decree, which was dismissed by the trial court. The appellate court allowed the appeal and set aside the ex parte judgment and decree.
Finding of the Court:
The court found that the appellate court failed to decide and record any findings why the decision of the trial court in the recall of judgment was bad. The court concluded that the lower appellate court side-tracked the issue and was swayed by the merit/demerit of the claim set out in the plaint, which cannot be countenanced.
Issues: The issues revolved around the recall of the ex parte judgment and decree, and whether the absence of the defendant or his counsel was justified for any reasonable and sufficient cause.
Ratio Decidendi: The court set aside the ex parte judgment and decree and directed the lower appellate court to decide the appeal afresh in accordance with law, emphasizing that the focus should be on whether the absence of the defendant or his counsel was justified for any reasonable and sufficient cause.
Final Decision: The petition was allowed, and the order impugned was set aside. The lower appellate court was directed to decide the appeal afresh in accordance with law.
This petition is directed against the Order dated 21-5-2010 passed by the First Additional Judge to the Court of District Judge, Dhar in Misc.Civil Appeal No.08 of 2010.By the Order impugned Court below has set aside the ex parte judgment and decree and directed the trial Court to decide the Civil Suit No.3A/2002 on merit.
2.Facts giving rise to the petition, in a nut-shell are as under. Petitioners are the plaintiffs. They filed a suit for permanent injunction against respondents. Suit was decreed ex parte on 31-1-2003.On 2-5-2003, respondents applied under Order IX, Rule 13 of the Civil Procedure Code for recall of the ex parte judgment and decree.It was registered as MJC No.2/03.Said MJC was dismissed by the trial Court on 5-7-2004 in default of appearance. Respondents, therefore, applied for restoration of said MJC.This application was registered as MJC No.22/2005.Trial Court vide Order dated 13-11-2009 dismissed the MJC No.22/2005.The Order was challenged in Misc.Appeal No.8 of 2010 which was allowed by the Order impugned as stated above. Hence this petition.
3.We have heard rival submissions of counsel at length. Perused the material placed on record. It is true that in a Court of law parties must have fair chance to contest suit on merit and substantial justice should not be scarificed on the wheels of statistics but after giving considerable thought to the matter, I have come to the conclusion that in the facts and circumstances of the case in hand, this petition deserves to be allowed on the short ground that the learned Appellate Court failed to decide and record any findings why the decision of the trial Court in MJC No.22 of 2005 was bad. The question before the Courts below in the proceedings Order IX, Rule 13, Civil Procedure Code was to adjudge whether on a particular date of hearing absence of the defendant or his counsel was justified for any reasonable and sufficient cause. It seems that the learned lower appellate Court side-tracked the issue and was rather swayed by the merit/demerit of the claim set out in the plaint. This cannot be countenanced. In this view of the matter, the Order impugned is hereby set aside and the lower appellate Court is directed to decide the appeal afresh in accordance with law. Petition is allowed.
4.Ordered accordingly.
Appeal dismissed.
