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Shri Noor Mohammad Sultan Mohammed Vs. Devilal Chunilal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberAppeal No. 137 of 1977
Judge
Reported in(1978)80BOMLR280
AppellantShri Noor Mohammad Sultan Mohammed
RespondentDevilal Chunilal
Excerpt:
.....appealable.;on a notice of motion taken out by the defendant, the trial court set aside the ex parte decree passed against him on condition that he deposited the decretal amount in court within a week. the order further provided that on the defendant's failure to deposit the decretal amount in court as above, the notice of motion to stand dismissed, without further express orders of the court,;on appeal by the defendant, and on preliminary objection to the maintainability of the appeal,;that where an application is made by the defendant to set aside an ex parte decree passed against him and the court makes a conditional order directing the decree to be set aside on certain conditions in default of which the application is to be dismissed, such an order is final for the purpose of an..........the defendant-appellant's notice of motion dated march 31, 1977 absolute and setting aside the ex parte decree passed against the defendant on march 2, 1977 on condition that the defendant deposits the decretal amount in court within a week and that on defendant's failure to deposit the decretal amount in court the said notice of motion to stand dismissed without further express orders of court.2. the facts giving rise to this appeal which are not in dispute are briefly these: summary suit no. 634 of 1972 was filed by the plaintiff respondent on the strength of a pro-note dated january 16, 1969 for rs. 3,400 alleged to have been executed by the defendant-appellant. it appears that at the summons stage there was an ex parte decree on june 4, 1972. that ex pane decree was set aside and.....
Judgment:

Naik, J.

1. This is an appeal against the order of the learned Judge of the City Civil Court, Bombay, dated April 14, 1977 making the defendant-appellant's notice of motion dated March 31, 1977 absolute and setting aside the ex parte decree passed against the defendant on March 2, 1977 on condition that the defendant deposits the decretal amount in Court within a week and that on defendant's failure to deposit the decretal amount in Court the said notice of motion to stand dismissed without further express orders of Court.

2. The facts giving rise to this appeal which are not in dispute are briefly these: Summary suit No. 634 of 1972 was filed by the plaintiff respondent on the strength of a pro-note dated January 16, 1969 for Rs. 3,400 alleged to have been executed by the defendant-appellant. It appears that at the summons stage there was an ex parte decree on June 4, 1972. That ex pane decree was set aside and unconditional leave to defend was in fact granted to the defendant. The defendant filed his, written-statement. The suit was transferred to the list of long causes on March 24, 1975. On March 2, 1977 the suit was taken up by Mr. Thakkar, the Additional Principal Judge of the City Civil Court who was taking commercial causes and it was decreed ex pane. Thereafter one Praveen Patel, the clerk of defendant's advocate Mr. Narayanan, who was entrusted to watch the daily boards of long causes, learnt on enquiries that the suit was placed on board before Mr. Thakkar who was taking commercial causes on February 28, 1977 and thereafter on March 1, 1977 and an ex parte decree was passed on March 2, 1977. Being surprised and shocked he conveyed his message and helplessness in the circumstances to his advocate Mr. Narayanan. That is how his advocate took out a notice of motion giving rise to this appeal on March 31, 1977 for setting aside the ex parte decree which was passed on March 2, 1977.

3. The notice of motion was resisted by the defendant. The defendant in his affidavit expressed his fear that the plaintiff who had retired from the Indian Airlines might leave the country.

4. The learned Judge thereafter was pleased to set aside the ex parte decree by passing a cryptic order as under:

Advocates on both sides are heard. N/M is made absolute and ex parte decree passed on 2.3.1977 set aside on condition that the defendant deposits the decretal amount in Court within a week. On the defendant's failure to deposit the decretal amount in Court as above the N/M to stand dismissed without further express orders of Court.

No order as to costs.

5. It is the propriety of this order which is challenged by this appeal by the original defendant.

6. Mr. Mehta, learned advocate who has appeared in support of this appeal, while not disputing the power of the Court to put the defendant to such terms as to costs, has assailed the order of the learned Judge by pointing out that in the absence of special and adequate reasons to be recorded by the learned Judge, the learned Judge's order in effect makes the unconditional leave granted to him nugatory. In support of his submission Mr. Mehta has relied upon the observations of a division Bench of the Rajasthan High Court reported in Chhagan Raj v. Sugan Mal . He has also relied on a judgment of the Kerala High Court reported in N. Karuppan v. M. Sankaran Nair : AIR1973Ker28 .

7. Mr. Vyas, learned advocate for the plaintiff-respondent has challenged the very maintainability of the appeal. He submits that such an appeal is not competent, having regard to the provisions of Order XLIII, Rule 1 of the Civil Procedure Code. In any event, he submits that although the learned Judge has not recorded any reasons in the order he has passed on the notice of motion, the Court may be pleased to safeguard the interest of the plaintiff-respondent by asking the defendant to furnish security to the extent of the decretal claim.

8. The first question which I have therefore to consider is as to whether the appeal is competent.

9. Order XLIII, Rule 1(d) of the Civil Procedure Code provides that an appeal shall lie from an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte.

10. Now the order in question no doubt by the first part reads that the notice of motion is made absolute and that the ex parte decree passed on March 2, 1977 set aside on condition that the defendant deposits the decretal amount in Court within a week. But then it does not stop there. The order further provides as under: 'On the defendant's failure to deposit the decretal amount in court as above the notice of motion to stand dismissed without further express orders of court.'

11. It would therefore appear that this composite order, which is a conditional order, in the event of the defendant's failure to fulfil the condition, finally provides for the dismissal of the notice of motion without any further orders being passed or being required to be passed by the Court. That being the position the order is clearly appealable under Order XLIII, Rule 1(d) of the Civil Procedure Code.

12. In this connection I may refer to the observations of the Madras High Court in Balarama v. Subbarama [1953] Mad. 360, wherein Mack J. has observed as under:

Where an application is made by the defendant to set aside an 'ex parte' decree passed against him and the Court makes a conditional order directing the decree to be set aside on certain conditions in default of which the application is to be dismissed, such an order is final for the purpose of an appeal allowed under Order 43 Rule 1(d).

13. This view is also approved by the Kerala High Court in N. Karuppan v. M. Sankaran Nair. With respect the above views are in accord with the view I am taking. It would therefore appear that there is no force in the submission made by Mr. Vyas about the maintainability of this appeal. Having regard to the form of the order in which the notice of motion is disposed of it is clear that an appeal is perfectly competent under Order XLIII, Rule 1(d) of the Civil Procedure Code.

14. That takes me to the grievance of Mr. Mehta. No doubt under Order IX, Rule 13, when a Court is satisfied that a defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court has power to make an order setting aside the ex parte decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit. Mr. Mehta submits that in normal course costs would be enough compensation for the plaintiff who would be required to attend the Court again, but submits Mr. Mehta, that in the absence of special reasons the Court would not be justified in asking the defendant to deposit the entire decretal amount. It is needless to say that under Order IX, Rule 13 depending upon special and particular facts of a case, the Court may as well put the defendant to terms even with regard to the deposit of the decretal amount, but then such an order must be founded on adequate reasons and the reasons must appear in the order, so that the Court of appeal must find that the discretion has been exercised judicially. In the instant case the cryptic order gives no reasons whatsoever for the onerous conditions which have been insisted upon for setting aside the ex parte decree. It is evident from the first part of the order, that the Court was satisfied that the defendant was prevented from sufficient cause from appearing in Court and that satisfaction was obtained from the affidavit of Parveen Patel, the clerk of the advocate of the defendant. Having come to that satisfaction, one would look in vain in the order of the learned Judge for the reasons for the onerous and extraordinary terms to which he has put the defendant to avail of the benefits of getting the ex parte decree set aside. In effect the very success of the defendant in getting an unconditional leave to defend has been made nugatory by this condition.

15. In this connection also I may refer to the observations of Wanchhoo C.J. as he then was in the case reported in Chhagan Raj v. Sugan Mal. In para. 7, the relevant observations are to this effect (p. 238):

As to the question whether the court was right in imposing the term relating to the deposit of the decretal amount or giving security for the same, that depends upon the circumstances of each case. Generally speaking, costs should be sufficient to compensate the decree-holder in such cases if any damage is suffered by him on account of non-appearance of the defendant on the date fixed.

The imposition of a further term as to payment of the decretal amount or giving security for the same is to be resorted to only in special circumstances for which the court must give reasons. Here again, it is not in the arbitrary power of the court to impose a condition as to payment of the decretal amount or for giving security for the same without giving any reasons for such a course.

Further, it is well settled that even where a further condition besides costs is imposed, it should not be of an onerous nature. Whether the condition is onerous or not will again depend on the circumstances of each case. But again, generally speaking, where a defendant is able to show that he had sufficient reasons for not appearing on the date fixed and there is nothing on the record to show that the defendant had been acting in such manner as to require some further condition being imposed on him, the court should not impose any further condition besides the condition relating to costs.

(Italics ours).

16. With respect I can do no better than to adopt these very observations which are most apposite for displacing the order appealed against. That also answers the submission of Mr. Vyas about the defendant being required to furnish security for the decretal amount.

17. Realising that the order of the learned Judge could not be sustained, Mr. Vyas was driven to argue that the notice of motion itself was not properly taken out inasmuch as it was supported by the affidavit not of the defendant but of the clerk of the defendant's advocate and that there was no sufficient cause. This submission has to be mentioned only to be dismissed inasmuch as no such plea was taken in the Court below and no appeal or cross-objections is filed by Mr. Vyas.

18. Had the matter rested there only, it would appear that the appeal shall have to be allowed. But then it must be said in fairness to Mr. Mehta that since in his Civil Application No. 1608 of 1977, the defendant has already deposited Rs. 500 as directed by this Court, he has no objection to the Court putting the defendant to the term of depositing that amount as one of the terms for setting aside the ex parte decree. In the circumstances of this case, there shall be no order as to costs.

19. In the result, the appeal is partly allowed. The order of the trial Court making the notice of motion absolute and setting aside the ex parte decree dated March 2, 1977 is confirmed. But the order of the Court directing the defendant-appellant to deposit the decretal amount in Court within a week and the further order of the Court that on the defendant's failure to deposit the decretal amount in Court as above the notice of motion to stand dismissed without further express orders of Court is set aside.

20. The amount of Rs. 500 deposited by the defendant pursuant to the order of this Court in Civil Application No. 1608 of 1977 may be continued to be deposited till the disposal of the suit which shall be heard on merits at the next earliest date available. No order as to costs of the notice of motion and this appeal having regard to the circumstances of the case.

21. No orders are called for in Civil Application Nos. 1608 of 1977 and 3105 of 1977 in view of the final order in this appeal.

22. Rule in Civil Application No. 3267 of 1977 is discharged and the injunction is vacated.


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