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Om Chand Vs. Pius Swami - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberMiscellaneous Second Appeal No. 20 of 1966
Judge
Reported in4(1968)DLT631
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 7
AppellantOm Chand
RespondentPius Swami
Advocates: A.C. Sud and; M.V. Sharma, Advs
Cases ReferredThola v. ShriKishan
Excerpt:
.....no sufficient cause has been shown by the appellant herein for setting aside the ex parte orders dated 21st april, 1964 and 30th april 1964. (11) shri sud next contended that even though the second application filed on 1st may 1964 purports to have been filed under order 9 rule 7 of the code of civil procedure for setting aside the ex-parte order, the prayer therein was that the appellant herein may be permitted to participate in the application filed by the respondent herein under section 11 of the abolition act wherein no proceedings were conducted till then, and that the compensation officer should have permitted the appellant herein at least to participate in the proceedings from the stage at which they were on the date of the application under order 9 rule 7 or on the subsequent..........ex-parte as against the appellant herein. on the same evening at about 4 30 pm, the aprellant's counsel filed an application in which he stated as follows :- 'sir, the respondent begs to submit :- 1. that the above named case was fixed for the appearance of the respondent who had engaged a counsel to represent him but on account of a short absence for a few minutes on the part of the clerk of the counsel, the case was called and proceeded ex parte. 2. that there was no intentional absence and be excused. it is thereforee prayed that the case proceeded ex parts be kindly set aside so far as ex parte order is concerned and we be given opportunity to represent.' thus, the reason given in the application was that the clerk of the counsel could nto be present when the case was called......
Judgment:

T.V.R. Tatachari, J.

(1) This second appeal was filed against the judgment of the learned District Judge, Mandi and Chamba Districts, dated 14th March, 1966, in Civil Miscellaneous Appeal No. 105 filed on 3rd October, 1964, by which the learned District Judge dismissed the said appeal and confirmed the order (judgment) of the Compensation Officer, Mandi, dated 7th September, 1964 rejecting an application filed by 0m Chand, the appellant herein, for stoting aside an order of dismissal of an earlier application filed by him ior setting aside an order proceeding against (setting ?) him ex parte in a proceeding before the Compensation Officer.

(2) The facts which led up to this second appeal may be stated briefly. The respondent herein Plus Swami, is the nephew of 0m Chand, the appellant berein. The respondent filed an application under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953. (hereinalter referred to as 'the Abolition Act') for acquisition of proprietary right? in Khasra Nos. 13,15 and 16. The said application was allowed (ordered ?) by the Compensation Officer. Against that order, 0m Chand, the appellant herein, preferred an appeal, and the appelate Court remanded the case on 12th April, 1962. After the remand, the file gto burnt, and the respondent herein filed an application for the reconstruction of the file and the granting of the proprietary rights. Ntoice was given to the appellant herein to file a copy of his original objections to the application under section It of the Abolition Act. On 5th March, 1964, the appellant's counsel was present, and he was directed to file the said copy of the objections by 21st April, 1964. On 21st April, 1964, the appellant as well as his counsel were absent, and thereforee the Compensation Officer ordered the proceedings to continue exparte. On the same date, at about 4.30 P.M. the learned counsel for the appellant filed an application praying that the exparte order may be set aside. It was stated in the said application that the case was fixed for that date for the appearance of the respondent .'appellant herein) in the application under section 11 of the Abolition Act, that the said respondent had engaged a counsel, but on account of 'a short absence for a few minutes on the part of the clerk of the counsel, the case was called and proceeded ex-parte', that the absence was nto intentional and may be excused, and that the order directing ex-parte proceedings may be set aside. This application was supported by an affidavit of the clerk of the counsel. There is an endorsement on the said application that the application was fixed for 30th April, 1964.

(3) On 30th April, 1964, the appellant herein and his counsel were, btoh absent, and the respondent herein alone was present, with the result that the appplication filed on behalf of the appellant herein on 21st April, 1964, was directed to be consigned to the record-room. Then, on 1st May, 1964, antoher application was filed by the appellant herein. It ran as under :- 'In the Court of:-Compensation Officer. Mandi., In the matter of:- Pius Swami. versus Om Chand, Application u/s 11 of Big Landed Abolition Act. Application under 0.9 rule 7 Civil Procedure Code for setting an ex-parte order and permitting (?) Editor. the defendant -non-applicant to participate in the proceedings. Sir, The applicant/respondent begs to submit :- 1. That in the aforesaid application, some documents are demanded from the applicant for which purpose it is fixed for 1st May, 1964, before this learned Court. 2. That on 30th April, 1964 the day when it was originally fixed, respondent by the morning bus had come from Saikaghat and having reached a bit late, the case was called in the routine, nay, earlier and the respondent had no time to put his appearance. 3. That there is very good ground for permitting the respondent to put in his appearance and participate in the proceedings of the application which is at its initial stages. It is thereforee prayed that the respondent be kindly permitted to participate in the application wherein no proceedings have been conducted so far. The applicant/respondent shall ever pray. Sd./. Respondent. Through Manohar Lal Advocate, 1st May, 1964.' It was, thus, an application for setting aside the order dated 30th April, 1914, and for permitting the appellant herein to participate in the application under Section 11 of the Abolition Act. This second application was heard by the Compensation Officer, and by an order dated 7th September, 1964, the Compensation Officer dismissed the said application on the ground that the said application for restoration of an earlier application filed to set aside an earlier ex parte order was nto maintain' able. Against that order of the Compensation Officer, the appellant berein filed an appeal Civil Miscellaneous Appeal No. 105, in the Court of the District Judge, Mandi, under Section 104 of the Abolition Act. This appeal was heard by the learned District Judge, and by his judgment dated 14th March, 1966, he dismissed the appeal agreeing with the view of the Compensation Officer that the second application was nto maintainable. He also held that even though the provisions of Older 9 of the Code of Civil Procedure do nto apply to the application in question, every tribunal has inherent power to set aside an ex-parts order passed by it, but that the same should be exercised juridiciously, and that in the present case the appellant herein was negligent, and knowingly remained absent so as to delay the proceedings and was will. fully prolonging the proceedings with an ulterior mtoive, and that, thereforee, it was nto a case for the exercise of the inherent power either by the Compensation Officer or by the appellate Court. It is against this judgment that the present second apppeal has been fih-L

(4) Shri A. C. Sud the learnel counsel for the appellant, contended that the lower Courts erred in holding that the second application was nto maintainable, that the Compensation Officer, while dealing with an application under Section 11 of the Abolition Act should bs regarded as a Court, as held in an unreported judgment of a Division Bench of this High Court (Jagjit Singh and S N. Shankar JJ) dated 17th May. 1968. in Thola v. ShriKishan, M.S. A. No. 19 of 1965, that thereforee the provisions of the Code of Civil Procedure apply to the proceedings before the Compensation Officer, and under the provisions of Order 9 Rule 7 of the Cede of Civil Procedure, the second application filed on behalf of the appellant herein was maintainable as held by some of the High Courts, that in any event the Compensation Officer had the inhelent power to set aside the ex parts order and he should have done so, and that the learned District Judge erred in holding that the appellant herein was

(5) It is true that in the unreported decision mentioned above it was held by a Division Bench of this High Court that a Compensation Officer, while dealing with an application under section 11 of the Abolition Act. should be regarded as a Court so as to attract the application of the doctrine of lis pendens. But, the question regarding the applicability of the provisions of the Code of Civil Procedure to the proceedings before the Compensation Officer under section 11 of the Abortion Act did nto arise for consideration in that case, and was nto, thereforee, decided by the Division Bench. The question, thereforee, still remains as to whether, even if the Compensation Officer should be regarded as a Court while dealing with an application under section 11 of the Abolition Act, all the provisions of the Code of Civil Procedure would apply to the said proceedings before him. This is a most question, because of the express provisions in Section 25 of the Abolition Act conferring the powers of the Civil Court under the Code of Civil Procedure, 1908, upon the Compensation Officer, only for the purposes of administering caths, taking evidence and of enforcing the attendance of witnesses and compelling the production of documents and material objects. When the legislature expressly made a provision in the Act conferring upon the Compensation Officer only some specified powers of a Civil Court under the Code of Civil Procedure, and when the State Government did nto make any Rule under Section 26 of the Act making the provisions of the Code of Civil Procedure applicable to the proceedings before the Compensation Officer, it is a question for consideration as to whether it can be held that ail the provisions of the Code of Civil Procedure are applicable to the proceedings before the Compensation Officer, even if be has all the trappings of a Civil Court.

(6) Further, even if it is held that the provisions of the Code of Civil Procedure are applicable to the proceedings under section 11 of the Abolition Act before the Compensation Officer, the question still arises as to whether the second application was maintainable under Order 9 Rule 7 of the Code of Civil Procedure. There is a difference of opinion between the various High Courts as regards the maintainability of a second application under Order 9 Rule 13 of the Code of Civil Procedure. In the present case, we are nto concerned with Order 9 Rule 13 which provides for the setting aside of an exparte decree, as we are concerned in the present case, nto with a decree passed ex-parte but with the order dated 21st April 1964 directing the proceedings to continue ex parte as against the appellant herein, and the orders dismissing his application for default. Even if the same considerations as are applicable to the said second application under Order 9 Rule 13, apply to a second application under Order 9 Rule 7 also, it is nto necessary, in my opinion, in the present case to go into the questions as to the appliability of the provisions of the Code of Civil Procedure to a proceeding before the Compensation Officer under section 11 of the Abolition Act and the maintainabiltoy of a second application, in the view I am taking on the merits in this case. For the purposes of this appeal I proceed on the basis that the provisions of the Code of Civil Procedure were applicable, and that such a second application as was filed by the appellant herein was maintainable under Order 9 Rule 7, and that in any case the Compensation Officer had inherent power to set aside the ex pfarte order passed by him.

(7) Even if the second application was maintainable under Order 9 Rule 7, and even if the Compensation Officer had inherent power to set aside the ex parts order passed by him, the said order could be set aside only if there was a good and sufficient cause for the absence of the appellant herein or his counsel. On 5th March, 1964, the appellant's caunsel was present and was directed to file a copy of the objections previously filed, and the case was fixed for 21st April, 1964, On 21st April, 1964, neither the appellant nor his counsel was present. The Curt thereforee, rightly directed the proceedings to continue ex-parte as against the appellant herein. On the same evening at about 4 30 Pm, the aprellant's counsel filed an application in which he stated as follows :- 'Sir, The respondent begs to submit :- 1. That the above named case was fixed for the appearance of the respondent who had engaged a counsel to represent him but on account of a short absence for a few minutes on the part of the clerk of the counsel, the case was called and proceeded ex parte. 2. That there was no intentional absence and be excused. It is thereforee prayed that the case proceeded ex parts be kindly set aside so far as ex parte order is concerned and we be given opportunity to represent.' Thus, the reason given in the application was that the clerk of the counsel could nto be present when the case was called. Along with the application, an affidavit of the clerk of the counsel was filed. In that affidavit also the reason given was that the clerk was attending to some toher matter in antoher Court, and that be was late by a few minutes. Shri M. V. Sharma, the learned counsel for the respondent berein, submitted that no reason was given either in the application or in the affidavit for the absence of the counsel or the party, but a reason was given only for the absence of the clerk, and that the same should nto be regarded as a sufficient ground for the purpose of setting aside the ex -parts order. This submission should, in my opinion, be accepted. The order setting the appellant ex-parte or directing the proceedings to continue ex parte as against the appellant was passed because of the absence of the appellant and his counsel. thereforee, in the application for setting aside the said order sufficient cause for the absence of the appellant and his counsel must be shown. The statement in the application and the affidavit that the counsel's clerk could nto be present was no ground at all, and the application and the affidavit were silent as regards the reasons for the absence of the appellant and his counsel. Thus, no sufficient cause was at all shown for setting aside the ex -parte order passed on 21st April, 1964.

(8) As already stated in the narration of the facts, the application filed on 21st April, 1964 was fixed for 30th April, 1964. On 30tb April, 1964 the appellant as well as his counsel were absent. The respondent berein alone was present. The Compensation Officer, thereforee, rightly directed the application to be consigned to the record room on the ground of non prosecution. It was then that tbo second application was filed on 1st May, 1964 under Order 8 Rule 7 of the Code of Civil Procedure, The relevant portion in it was already extracted above This application also was filed by the counsel for the appellant, and an affidavit of the clerk of the counsel was field therewith. No reason was given either in the application or in the affidavit for the absence of the appellant and his counsel on 21st April, 1961. A reason for absence on 30th April, 1964 only was given. The reason given in the application was that the party (appellant herein) reached the Court late. But the reason given in the affidavit of the clerk was that the clerk reached the Court late. It was also stated in the affidavit that the party (appellant herein) was at Chamba Thus, different and contradictory reasons were given in the application and in the affidavit, and thereforee neither of the reasons can be accepted as true. Thus, no sufficient ground was given or shown in the second application for the absence of the appellant and his counsel,

(9) In ground No 5 in the Memorandum of the present second appeal it was alleged that there was aforgery in the order sheet, that tbe date of the healing was altered that the alteration bears no initial of the officer of the Court, and that, thereforee, the appellant herein could nto be present on the said altered date of hearing. The said ground No. 5 runs as under :-

'THATthere was a forgery in with order sheet, the data of the bearing having bee n altered and which is apparently detectable on the face of it and bears no initial on the alteration of any official of the Court. The fact is that the hearing was fixed fur a date toher than one which was subsequently altered and forged and when the case was called on that subsequent altered date it was but natural for the respondent/appellant nto to be present on that date and the application thereupon stood dismissed. And when the respondent appeared on the actual date of hearing he was told by the Court. that the application had already been dismissed at an earlier data. The appellant was taken by surprise and had immediately drawn the attention of the Presiding Officer that the Court towards the alteration of the date of hearing and also without any delay at once the same day preferred an antoher application for restoraction which was sunbsequently held to be competent. Under the circumstances the appellant's application was apparently liable to be accepted.'

It is nto clear from the ground as to which of the two dates 21st April, 1964 and 30th April, 1964, that was altered. The allegation in the ground, was clearly an after thought, as no such allegation was made, either orally before the Compensation Officer, or in either of the applications filed before him on behalf of the appellant. Such an allegation was nto made even before the lower aopellant Court. Shri Sud pointed out to the alleged alteration in the order sheet (on the back side of page 6 of the file). The date appears to have been originally written as 24th April, 1981, and the number 2t was corrected into 21. The said correction was nto initialled by the officer of the Court. Yet, there is ntohing suspicious about the correction. Apparently, the officer wrtoe 24th April, 1964 in the first instance, and corrected it into 21st April, 1964 immediately for some reason or the toher. There is ntohing on the record which suggests that the correction was nto made immediately. That this was nto corrected on a subsequent date is clear from the fact that the appellant's counsel appeared, and even filed an application on the evening of 21st April, 1964 itself If the date of hearing was originally fixed as 24th April, 1964, the appellant's counsel would nto have appealed and field an application on 21st April, 1964, and in any case he would have expressed his grievance about the alteration of the date of hearing either orally or in his application before the Compensation Officer. When this aspect was mentioned by Shri Sharma, the learned counsel for the respondent berein, Shri Sad, the learned counsel for the appellant, stated before me that he does nto press this ground.

(10) Thus, no sufficient cause has been shown by the appellant herein for setting aside the ex parte orders dated 21st April, 1964 and 30th April 1964.

(11) Shri Sud next contended that even though the second application filed on 1st May 1964 purports to have been filed under Order 9 Rule 7 of the Code of Civil Procedure for setting aside the ex-parte order, the prayer therein was that the appellant herein may be permitted to participate in the application filed by the respondent herein under Section 11 of the Abolition Act wherein no proceedings were conducted till then, and that the Compensation Officer should have permitted the appellant herein at least to participate in the proceedings from the stage at which they were on the date of the application under Order 9 Rule 7 or on the subsequent date of hearing, The learned counsel referred to the decision of the Supreme Court in Sangram Singh v Election Tribunal, Ktoch, wherein it was held that Rule 7 of Order 9 of the Code of Civil Procedure does nto mean that a defendant cannto be allowed to appear at all if be does nto show good cause for his non appearance on the date of the first hearing, that all that the rule means is that he can- lto be relegated to the position he would have occupied if he had appeared, and that if he does appear on the date to which the hearing of the suit is adjourned, he cannto be stopped from participating in the rpceedomgs from that stage simply because he did nto appear at the first or some toher hearing and did nto show good cause for the nonappearance. In answer to this contention, Shri Sharma, the learned counsel for the respondent herein, submitted that the prayer in the second application was nto for participation in the proceedings from the stage at which they were, but was essentially for the setting aside of the ex-parte order and for participation in the proceedings after the ex -parte order was set aside, and that this submission of Shri Sud is be in made for the first time at the time of the arguments in this second appeal. This submission of Shri Sharma appears to be correct. It is true that the Prayer in the second application contains words to the effect that the appellant herein may be permitted to participate in the aplication under Section 11 of the Abolition Act wherein no proceed ings had been conducted till then. But, no request to the effect that the appellant may be permitted to participate in the proceedings under section 11 of the Abolition Act from the stage at which they were on 1st May, 1964, was made to the Compensation Officer. A perusal of the order of the Compensation Officer dated 7th September, 1984 shows that the counsel for the appellant herein made his submissions for the setting aside of the ex parte order and nto for permission to the appellant to participate in the proceedings from the stage at which they were. Even in the grounds of appeal to the Court of the District Judge, this aspect was nto mentioned, and it does nto seem to have been urged even in the arguments in the appeal before the learned District Judge. It was nto raised even in the grounds of this second appeal

(12) Further, the second application which was filed on 1st May, 1964, was adjourned to 29th May. 1964, and then to 3rd July, 1961 for arguments regarding the said application. It was again adjourned to 6th July, 1964. and then to 20th July, 1964. On that date, arguments were heard, and the application was adjourned to 20th August. 1964 for citation of the rulings. On 20th August, 1964, orders were reserved and the application was adjourned to 31st August, 1964. and again to 7th September, 1964. On 7th September, 1964, the application was dismissed as nto maintainable. The appellant herein had thus a number of opportunities to inform the Compensation Officer that the ex-parte order need nto be set aside, that the appellant, herein does nto insist on his being relegated to the stage at which the proceeding in the application under section 11 of the Abolition Act was when he absented himself, and that he may be permitted to take part in the further proceedings from the stage at which they were on the date of his second application for setting aside the ex parte order. But, he did nto do so. Moreover, even after the order was passed by the Compensation Officer on 7th September, 1964 dismissing the second application, the appellant did nto make a request to the Compensation Officer for permission to participate in the proceedings at least from that stage. After the aforesaid order was passed on 7th September, 1964, the main application under Section 11 of the Abolition Act was posted to 6th October, 1964. On that date, it was ntoed by the Compensation Officer that the respondent herein was present, and that none was present for the appellant herein. After that date, the file appears to have been sent to the appellate Court, and that is why perhaps there were no orders or dates of hearing before the Compensation Officer till 20th April, 1966. As already stated, no ground was taken in the appeal to the District Court, nor was it urged before the learned District Judge that the appellant herein may be permitted to take part in the proceedings from the stage at which they were. The appeal was dismissed by the learned District Judge on 14th March, 1966 The file was sent back to the Compensation Officer, and the main application under Section 11of the Abolition Act was posted on 20th April, 1966 On that date also, it was ntoed by the Compensation Officer that none was present for the appellant herein. An order was passed by him on the same date in the application under Section 11 of the Abolition Act, granting proprietary rights in the suit Khasra numbers to the respondent herein. It is stated by the learned counsel for the respondent that on 20th June 1966, in pursuance of the order of the Compensation Officer granting proprietary rights, a patta was issued to the respondent herein, and that subsequently mutation was effected in the revenue records in favor of the respondent herein Thus, even if the prayer in the second application, dated 1st May 1964, is regarded as a prayer or request for permission to participate in the proceedings from the stage at which they were on 1st Mav, 1964, the date of the said application, it is obvious that the appllant herein or his counsel did nto act upon it or make any request to the Compensation Officer, or offer to participate in the proceedings in the application under Section 11 of the Abolition Act from the stage at which they were on date of the second application. It is only in the course of the arguments in this second appeal that the learned counsel for the appellant sought to rake the new stand for the first time. In the circumstances, I consider that the appellant herein cannto be permitted to change his stand at this late stage.

(13) NO. toher contention was urged before me. For the above reasons, the second appeal falls, and is accordingly dismissed. In the circumstances of the case, I make no order as to costs in this second appeal.


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