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Case Reviews, The Law

G.P. SRIVASTAVA V. SHRI R.K. RAIZADA & ORS. (Special Leave Petition (civil) 17942-43 of 1999)

The present case deals with the concept of ex-parte decree and the legal method of understanding by the Supreme Court of India in case the subordinate judiciary is unable to meet the ends of justice or takes a narrow view of the facts and evidence presented.

By: Melena Janet Jeen R, 4th Year BBA LL.B, Alliance University, Bangalore.

Hon’ble Judges/Coram

Saiyed Saghir Ahmad and R.P. Sethi, JJ. 

Counsels: 

For Appellant/Petitioner/Plaintiff: Gopal Subramanium, Sr. Adv., Santosh Kumar, Devesh Singh, Pradeep Ranjan Tiwari, and Rakesh K. Sharma, Advs 

For Respondents/Defendant: Tara Chandra Sharma, Ajay Sharma, and Pankhuri Shrivastava, Advs. 

Acts/Rules/Orders: Order 9 Rule 13 of the Code of Civil Procedure (CPC) 

Prior History

From the Judgment and Order Dated September 23, 1999, of the Allahabad High Court in Civil Revn. No. 73 of 1985, From the Judgment and Order Dated October 11, 1999, of the Allahabad High Court in Review Petn. No. 201 of 1999 

Case Note

Tenancy – sufficient cause – Order 9 Rule 13 of CPC Code, 1908 – appeal against Order of High Court dismissing the application filed by the appellant under Order 9 Rule 13 praying for setting aside ex parte decree for eviction of the appellant – under Order 9 Rule 13 ex-parte decree against the defendant can be set aside upon satisfaction of Court that either summons was not duly served upon the defendant or he was prevented by any ‘sufficient cause’ from appearing when the suit was called on for hearing – ‘sufficient cause’ for nonappearance refers to the date on which absence was made ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time – appellant had established sufficient cause for his non-appearance on the date fixed when ex parte proceedings were initiated against him and had approached Court for setting aside ex parte decree within the statutory period – Order of High Court set aside – appeal allowed.

Judgment

On the failure to appear in the Court either personally or through his Advocate, the suit for arrears of rent, ejectment, and damages filed against the appellant was decreed ex-parte on 10.3.1983. This case deals with the concept of Ex-parte decree and the legal method of understanding by the Supreme Court of India.

Facts in Issue

  • The landlord filed a suit for eviction and recovery of arrears of rent in August 1981 as the tenant failed to pay the rent since June 1980 and was having arrears of Rs.4,000/-.

Even though the landlord served a notice dated May 1981 stating that the tenants should have to vacate the house, the tenants did not vacate nor pay the rent or damages for the suit.

  • The case was called for hearing in the morning and then postponed to the afternoon due to the absence of the appellant on 10th March 1983. The appellant failed to appear either personally or through his advocate both the times.
  • As the appellants weren’t present during the case the courts decided the case as an ex parte decree. 
  • The appellants approach the court to set aside the ex parte decree as they had valid reasons for not appearing for the hearing under Order 9 Rule 13 of CPC.
  • The trial court and the High Court had rejected the application.
  • The case is now heard in the Supreme Court as a special leave writ petition.

Matter in Issue

The appellant wasn’t able to attend the hearing as he was appointed as Assistant Engineer in the Irrigation Department for the construction of a bridge. He also contended that it was for the interest of the public. He was present on the site from 8th March 1982 to 11th March 1982 which prevented him from attending the hearing.

The Advocate of the appellant was not able to attend the case because his nephew had met with an accident. Both the reasons were supported by an affidavit and a medical certificate from a private doctor.

The courts rejected the above statements and documents as they did not find them sufficient enough. The medical certificate was from a private doctor and not from a government doctor.

Both the trial Court as also the High Court have adopted a very narrow and technical approach in dealing with the matter about the eviction of the appellant although he had put a reasonable defense and had approached the Court for setting aside the ex parte decree, admittedly, within the statutory period.

Justice can be served only if the court has heard the appellant’s side.

Laws Applicable

I. In the given case, the Civil Procedure Code was applicable. The case mainly focuses on setting aside the ex parte decree given by the court. Order 9 Rule 13 talks about setting aside decree ex parte against the defendant. The rule is as follows:

In any case, in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, 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 day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Explanation – Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

II. Rent Agreement laws in India are the state laws enacted to govern the rental agreements in various aspects. These fall under the ambit of the Rent Control Act. Each state has its own Rent Control Act. For instance, Rent Control Act (1999) Maharashtra, Rent Control Act (1958) Delhi, Tamil Nadu Buildings (Lease and Rent Control) Act (1960) Chennai govern the state’s rent agreements. This means there are also referred to settle disputes between the landlords and the tenants in their respective states. Here the laws of Allahabad will be applicable.

The judgment of the Case

On account of the unrealistic and technical approach adopted by the Courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant-defendant is allowed the opportunity to prove his case within a reasonable time.

The Supreme Court allowed the ex parte decree given by the High Court and the Trial Court to be set aside.

This was done with the payment of Rs. 5,000/- to the opposite parties. The Trial Court was instructed to take up the case and hear the appellant’s side within six months from the date of receipt of the copy of the order.

Case Analysis

An ex-parte decree is a kind of judgment given in case the parties to the case do not appear in the court hearing even though the summons were issued. The parties to a case in which the judgment was ex parte can approach and apply to the court a reasonable cause and the ex parte decree will be set aside if the courts are convinced.

In the case, both the Trial Court and the High Court have rejected the application for the setting aside of the ex parte decree. It clearly is stated in Order 9 Rule 13, that if the decrees are passed against the defendant, the ex parte decree can be set aside if they come up with the sufficient cause for not appearing in the hearing and should have to take care of the court fees for the same. Here the appellant had a valid reason which was for an interest in the public and supported the reason with an affidavit. The courts have no reason not to apply Order 9 Rule 13 in this situation. The Trial Court and High Court have adopted a very narrow and technical approach in dealing with a matter about the eviction of the appellant although he had put a reasonable defense and had approached the Court for setting aside the ex parte decree, admittedly, within the statutory period.

Conclusion

Even though the Trial Court and the High Court have given a very narrow judgment even after the appellants have submitted enough evidence and have done it within the statutory period, the Supreme Court had rectified this situation by considering the evidence of not attending the hearing of the Courts to be valid and had ex parte decree set aside as per Order 9 Rule 11. Thus, the Supreme court had followed a legal method of understanding.

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