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2024 Supreme(Online)(KAR) 35908
HIGH COURT OF KARNATAKA
H.P. SANDESH, J
SRI M TULASIDAS – Appellant
Versus
SRI M.K. GOWTHAM CHAND – Respondent
MFA 2764 of 2014
The court upheld the dismissal of an application to set aside an ex parte decree due to lack of sufficient cause for non-appearance, emphasizing the need for demonstrable evidence.
Headnote:(A) Code of Civil Procedure, 1908 - Order 9 Rule 13 - Dismissal of application to set aside ex parte decree - Appellant contended that he was unable to contest due to ill health - Court found no sufficient cause shown for non-appearance and upheld the Trial Court's decision. (Paras 5, 18)
(B) Sufficient Cause - The court emphasized the necessity of demonstrating sufficient cause for non-appearance, reiterating that mere ill health without supporting evidence does not warrant setting aside an ex parte decree. (Paras 17, 18)
Facts of the case:
The appellant challenged the dismissal of his application to set aside an ex parte decree in a suit for specific performance, claiming ill health prevented his participation in the proceedings.
Findings of Court:
The court found that the appellant failed to provide adequate evidence of his ill health and did not utilize opportunities to contest the suit, leading to the dismissal of the appeal.
Issues: The main issue was whether the appellant demonstrated sufficient cause for his non-appearance in the original suit proceedings.
Ratio Decidendi: The court ruled that the appellant's failure to file a written statement and provide evidence of his claimed ill health justified the dismissal of his application to set aside the ex parte decree.
Result: The appeal is dismissed.
CAV JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the caveator/respondent No.1.
2. This appeal is filed challenging the dismissal order dated 25.01.2014 passed in Misc.No.100/2010 filed under Order 9 Rule 13 of CPC, on the file of the V Additional City Civil Judge, Bangalore (CCH-13).
3. The factual matrix of the case of the appellant/defendant is that the respondents/plaintiffs had filed a suit stating that the defendant executed the agreement of sale and agreed to sell the property bearing No.244, 6th Main, 4th Block, Jayanagar, Bangalore measuring east to west 60 ft. and north to south 40 ft. consisting of construction in the said property for sale consideration of Rs.2,25,00,000/- and on the date of agreement an amount of Rs.1,95,00,000/- was paid. The time for completion of the sale deed was agreed for 14 months. The plaintiffs also agreed to clear the loan to ICICI Bank payable by the defendant in respect of the property in question. It is also claimed by the plaintiffs that ground floor rear portion of the property has been handed over and also claims that agreed to deliver front portion ground floor, I floor and II floor. The plaintiffs filed O.S.No.7127/2008 for the relief of specific performance and notice was served on the appellant/defendant and he did not file the written statement when the case was set down for filing of written statement. Later, the case was posted for evidence of the witnesses and P.W.1 was examined, but was not cross-examined and the Trial Court heard the matter and passed the judgment and decree. However, it is contended that in the suit, the learned counsel filed the memo for retirement and the same was not accepted.
4. Being aggrieved by the judgment and decree, the appellant/defendant filed Misc.No.100/2010 under Order 9 Rule 13 of CPC on the ground that he was old aged and he was not keeping well and was on treatment from 25.12.2008 to 19.09.2009 and he underwent surgery on 20.10.2009 and he was discharged from the hospital on 23.10.2009 and requested the Trial Court to set aside the exparte judgment and decree and the same was dismissed. The plaintiff filed the Execution No.95/2010 and deposited the balance sale consideration and sale deed was executed, but possession was not handed over and this Court granted the stay of delivery of possession.
5. The learned counsel for the appellant would vehemently contend that the Trial Court committed an error in dismissing the Misc. petition. Inspite of reason was stated that he was under treatment and could not appear and file the written statement and contest the matter, the same has not been considered and the very order passed by the Trial Court is erroneous. Inspite of sufficient cause is shown, the Trial Court committed an error in dismissing the same when he was prevented with sufficient cause since he was suffering from ill health and the findings given by the Trial Court is erroneous and hence it requires interference of this Court.
6. The learned counsel for the appellant in support of his contentions he relied upon the judgment of the Hon’ble Apex Court in the case of ARJUN SINGH v. MOHINDRA KUMAR AND OTHERS reported in AIR 1964 SC 993 and brought to the notice of this Court paragraph No.8 wherein the Apex Court distinguished the provision under Order 9 Rule 7 and Order 9 Rule 13 of CPC regarding good and sufficient cause.
7. The learned counsel also relied upon the judgment of this Court in the case of TUNGAVVA AND OTHERS v. TARAVVA AND OTHERS reported in ILR 1978 KAR 1035 and brought to the notice of this Court paragraph Nos.2 and 10. In paragraph No.2 it is discussed regarding similar set of facts, passing of judgment. In paragraph No.10 it is held that justice delayed is justice denied and justice hurried is justice buried and also deprecated such short trips and dubious disposal of suits by the subordinate Courts, which result in grave failure of justice.
8. The learned counsel also relied upon the judgme
