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Raj Kumar Soni Vs. Mohan MeakIn Breweries Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 2777 of 1978
Judge
Reported inAIR1979All370
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 115(1) - Order 9, Rule 13
AppellantRaj Kumar Soni
RespondentMohan MeakIn Breweries Ltd.
Appellant AdvocateS.S. Chandvnasi and ;D.S. Morcocher, Advs.
Respondent AdvocateN. Lal and ;P. Srivastava, Advs.
DispositionRevision allowed
Excerpt:
.....- high court cannot intervene in matters relating to finding of facts. (ii) setting aside of ex parte decree - order 9 rule 13 and section 115, proviso clause (b) of code of civil procedure, 1908 - court set aside ex parte decree after finding defendant had no knowledge of date of hearing and that there were adequate reasons for believing so - imposing condition on defendant to deposit rs, 2 lakhs within 60 days was improper - court cannot impose onerous terms any time according to its discretion - held, revisional powers of high court may be invoked to rectify material irregularity. - - 2. learned counsel for the applicant raised two points :firstly, he contended that once the court comes to the conclusion that the defendant had no knowledge of the date fixed in the suit and there..........the applicant to deposit an amount of rs. 2 lacs within sixty days for setting aside an ex parte decree and restoring the suit to its original number. the applicant was the defendant in the suit and an ex parte decree had been passed against him. he had made an application for setting aside the ex parte decree and had shown cause for not being present onthe date when the decree was passed.the court below after considering thematerial on record came to the conclusion that there was sufficient cause forthe absence of the applicant on the daythe ex parte decree was passed. thecourt below allowed the application forsetting aside the ex parte decree, butimposed a condition directing the defendant to deposit a sum of rs. 2 lacs outof the decretal amount in court within60 days. the.....
Judgment:
ORDER

Amitav Banerji, J.

1. This Revision is directed against an order of the Civil Judge, Ghaziabad, dated 31-5-1978, directing the applicant to deposit an amount of Rs. 2 lacs within sixty days for setting aside an ex parte decree and restoring the suit to its original number. The applicant was the defendant in the suit and an ex parte decree had been passed against him. He had made an application for setting aside the ex parte decree and had shown cause for not being present onthe date when the decree was passed.The court below after considering thematerial on record came to the conclusion that there was sufficient cause forthe absence of the applicant on the daythe ex parte decree was passed. Thecourt below allowed the application forsetting aside the ex parte decree, butimposed a condition directing the defendant to deposit a sum of Rs. 2 lacs outof the decretal amount in court within60 days. The present revision has beenfiled only against the imposition of this,term.

2. Learned counsel for the applicant raised two points : Firstly, he contended that once the court comes to the conclusion that the defendant had no knowledge of the date fixed in the suit and there was a failure in giving him notice of the date fixed, he could not be saddled with any term or condition for making payment into court. The reason was that he was not at fault. He further urged that it was the bounden duty of the court to have informed the applicant of the date fixed in the suit and since that had not been done, he could not be saddled with the term of depositing a part of the decretal amount. In support of this contention, he relied on two decisions : (1) Gobardhan Ram Bisheshar Ram v. Banarsi Ram : AIR1957All805 & (2) Alimohammad v. Manaklal Ratanlal : AIR1960MP234 . The latter case has discussed the situation when the court can order making of a deposit into court.

3. His second contention was that in any view of the matter, the term imposed by the court below was onerous. The condition for setting aside the ex parte decree on the deposit of Rs. 2 lacs was unreasonable and amounted to a material irregularity in exercise of jurisdiction. In support of this contention, learned counsel cited a Division Bench decision of this Court in the case of B. Madan Mohan v. B. Kanhaiya Lal : AIR1933All601 .

4. Learned counsel for the opposite party, however, contended that the court setting aside an ex parte decree is empowered to impose terms, and the exercise of that power is purely discretionary. A revisional court exercising its power under Section 115 of the Civil P. C. rarely, if ever, interferes with the exercise of discretion by a subordinate court. The court below, contended the learned counsel, had given reasons for imposing the term of depositing Rs. 2 lacs in a suit filed for recovery of over Rs. 10 lacs. The court had stated that there were dilatory tactics adopted by the applicant. Learned counsel further contended that there was sufficient material on record to show that the court had wrongly allowed the ap-plication for setting aside the ex parts decree. He submitted that the instant case did not call for an interference.

5. Having heard the learned counsel for the parties, I am satisfied that the court below was right in setting aside the ex parte decree. It has given adequatef reasons and has, after considering the material on record, held that there was sufficient cause for the absence of the applicant on the day the ex parte decree was passed. This is a finding on a question of fact, and I do not see any reason to interfere with this part of the order. I am making this observation, for a revision has been filed by the plaintiff in this Court, which has also been dismissed by a separate order. The only question which calls for consideration is whether the term of depositing Rs. 2 lacs in cash imposed by the court below calls for an interference.

6. The relevant part of Order 9 Rule 13 of the Code reads :

'..... the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit and shall appoint a date for proceeding with the suit.'

It is evident from the above that where the court is satisfied that the applicant was prevented by sufficient cause from appearing when the suit was called for hearing, the court shall make an order setting aside the decree, but in doing so, it may impose such terms as to costs or payment into court or otherwise as it thinks fit. It is, therefore, clear that the court, while setting aside an ex parte decree, can, if it thinks fit, impose costs or direct payment into court or otherwise. The word 'otherwise' would indicate that it was open to the court to direct furnishing of security or make any such order. The words 'as it thinks fit' permits the court to pass any such order as to payment of costs or payment of money into court or furnishing of security etc. It is not incumbent on the court to pass an order imposing costs or payment of money into court or furnishing of security wherever an ex parte decree is being set aside. In a suitable case, the court may pass an order imposing costs, directing payment into court of the decretal amount or a part thereof and also furnishing of security for the balance, but such cases will depend on compelling facts so as to safeguard the interest of the plaintiff. It is also permissible for the court not to pass any order imposing any of these terms if it is satisfied that it is not necessary to do so in the interest of justice. It would, therefore, appear that the imposition of these terms would vary from case to case depending on the circumstance of each case. But, it must be borne in mind that there are judicial precedents which lay down the guidelines for the sake of uniformity in the administration of justice. It is necessary that these guidelines are followed except where it is necessary to lay down new guidelines.

7. In the case of B. Madan Mohan v. B. Kanhaiya Lal : AIR1933All601 , this Court was considering in a First Appeal the question whether the setting aside of the ex parte decree on the condition of paying 1/3rd of the decretal amount and costs was reasonable or otherwise. The Court below considered the circumstances which prevented the defendant front attending the court and being satisfied, was of the opinion that the ex parte decree ought to be set aside. The court below set aside the ex parte decree on the term of depositing one third of the decretal amount and the payment of Rs. 350/- as damages by a particular date. This court held that although there was ample power in the court to order the payment of money into court as well as costs as a condition for setting aside the ex parte decree, but set aside the term of deposit into court imposed by the court below on the ground that the condition imposed was unreasonable one. Similar is the case in the present case. Here too the court below was satisfied from the material on record that the applicant had sufficient cause for not being present on the date the ex parte decree was passed, but nevertheless observed that l/5th of the decretal amount viz. Rs. 2 lacs be deposited within 60 days as a condition for restoring the suit. The court below has made this order for payment of Rupees 2 lacs into court on the following observations in its judgment:

'Looking into the facts and the circumstances of the case it is not free from doubt that the delaying tactics were adopted by the applicant defendant and so in ample discretion which is provided under Order 9, Rule 13, C.P.C. to the court in setting aside an ex parte decree the reasonable terms may be imposed on the applicant-defendant.'

It is undoubted that the court has ample power to impose terms, but the question is. whether the court could do so when it had given a clear finding that the applicant was not present in court because he had not been informed of the date of the suit after the record had been received back from the High Court, even though there was a direction that intimation be given to the counsel for the parties. Consequently, the observation by the court that there was a doubt about dilatory tactics being adopted by the defendant had sufficient cause for not being present on the date the suit was taken up for hearing, it would only be proper to set aside the ex parte decree (sic). In the case of Gobardhan Ram Bisheshar Ram v. Banarasi Ram : AIR1957All805 , the Court held that if a case comes back to a trial court after an order from the superior court, it is the duty of the court to inform the parties of the date of hearing. The learned single Judge observed:

'But in a case where the record is received back and the case has to be heard again and a date of hearing has to be fixed, in my opinion, it is not the duty of the parties to find out the date of hearing but it is the duty of the court to inform the date.'

It is further observed in that case:

'In my opinion, whenever a date is fixed for the hearing or a date is adjourned it is bounden duty of the Court to inform parties or their counsel or their representatives of such dates. If they are not so informed, the party not informed will not be bound by the proceedings'. In the present case, there is a clear finding by the court below that the applicant or his counsel had not been informed at the date. Consequently, the ex parte decree was bound to be set aside. In the case of Alimohammad v. Manaklal Ratan-lal : AIR1960MP234 , the Division Bench was considering the question as to when an ex parte decree can be set aside conditionally. In that case the trial court had imposed on the defendant a term of furnishing security for the amount claimed in the suit. This was said to be onerous by the defendant. The court observed:

'But the defendant contends that on principle, the Court should not affix any condition onerous on the defendant unless it finds that he was at fault; that is to say, it can be imposed only if the defendant has been guilty, of some omission, which, however, the Courts find not serious enough to justify the maintenance of the ex parte decree.

Stated thus, this principle is almost obvious; 'there is case law; but it need not be discussed, as it enunciates only the principle that no litigant should be burdened unless found to be at fault. If there has been no due service of summons, the defendant is not to blame and unless he acquiesces, the order under Order 9, Rule 13 should be unconditional. Thus, in every case where the propriety of imposing a condition and its reasonableness are in issue, the question would be, is the defendant negligent in some measure at least and, is the condition proportionate to the seriousness of the omission?'

It is clear from the above that unless the party is at fault normally no condition should be imposed for payment of money or furnishing of security while setting aside the ex parte decree. It is also clear that the court can always award costs to compensate the other side for the inconvenience and loss caused to the said party. It is also clear that where the court finds that the defendant is at fault or there was omission on his part or it was be-cause of his act that there had been delay in the disposal of the case, the court may impose terms, but reasonable terms. It is not open to the court at any time to impose onerous term. An order directing a party to deposit in cash 1/3rd or 1/5th of the decretal amount is not justified when the amount claimed in the suit is large one. There are other modes of safe-guarding the interest of the plaintiff. If the court finds that the defendant is disposing of his properties or moving away from the jurisdiction of the court or has been delaying the proceedings in the suit, the court would be justified in imposing terms for the payment of money into court or furnishing of security, and if need be, for the entire amount claimed in the suit. But, such is not the present case. Here the finding of the court is that the defendant has sufficient cause for being absent on the date the ex parte decree was passed. There is no clear finding that the defendant was adopting dilatory tactics. The finding that the court had some doubt in this matter is not a positive finding for imposing such terms as has been done in this case. I am, therefore, satisfied that the imposition of the term of depositing Rs. 2 lacs into court within 60 days as a condition for setting aside the ex parte decree was onerous and uncalled for. The court below has exercised its jurisdiction in this respect with material irregularity.

8. Learned counsel for the opposite party strenuously urged that the court below was not justified in setting aside the ex parte decree on the ground that the counsel was not informed. He urged that there existed initials on the order sheet that the counsel had been informed, but the court below took upon itself the task of comparing the admitted signatures of the counsel with those on the order sheet to conclude that it was not of the counsel. It was urged that it was not open to the court below to do so without having an expert evidence on the same. He cited two decisions on the point including a latest decision of the Supreme Court in the case of State v. Pali Ram : 1979CriLJ17 . I am not impressed by this argument at all for the reason that the court below was called upon to consider whether the defendant applicant or his counsel had knowledge of the date fixed. After sifting the material on the record, the court below came to the conclusion that the defendant and his counsel had no knowledge of the date fixed in the suit. While coming to this conclusion the court below had occasion to look into the alleged initials of the counsel for the defendant on the order sheet and concluded that it did not purport to be that of the said counsel. This finding by the court below is a finding on a question of fact, and I am not prepared to interfere with the same.

9. Learned counsel then contended that this Court will not exercise its powers under Section 115 of the Code to interfere with the order of the court below, as the proviso to Section 115 of the Code is not complied with. Clause (b) of the proviso to Section 115 of the Code reads as follows:

'Clause (b): The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.'

In my opinion, the case would be fully covered under this clause. Where a party is not at fault and is saddled with payment of a huge amount as a condition for setting aside the ex parte decree, it would occasion a failure of justice. Consequently, it is open to this court to interfere with the order of the court below if the case falls under any of the three clauses of Section 115 of the Code and one of the clauses of the proviso.

10. I am satisfied that this is a fit case where the power under Section 115 of the Code should be exercised, for there has been a material irregularity in exercise of jurisdiction by the court below, and the order, if allowed to stand, would occasion a failure of justice.

11. The question which remains to be considered is what order should be passed. In my opinion, the ex parte decree ought to have been set aside on payment of costs only. While assessing the costs to be imposed the court must keep in mind not only the valuation of the suit but also take note of the fact that the plaintiff had to appear in Court a number of times with his counsel and incur expenses in connection with the restoration application. Taking all these into consideration, I think interest of justice would be served if a sum of Rs. 600 were imposed as costs.

12. In the result, therefore, the revision is allowed to the extent that the term imposing the deposit of Rs. 2 lacs within 60 days of the order passed by the Court below is set aside and instead a sum of Rs. 600 is imposed as costs for the setting aside of the ex parte decree payable within 15 days of this order. The record of the case is lying in this court Learned counsel for the plaintiff opposite party has prayed that the same may be sent back to the court below forthwith by a special messenger for which he is prepared to bear the expenses. Let the expenses be deposited within a week to enable the record to be sent back to the court below as prayed. The parties are directed to appear before the court below on 1st May, 1979 when the court below will fix a date for further proceedings before it. There will be no order as to costs in this revision.


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