Md. Salamul Haque v. Nazma Khatton & Ors.

order against respondent No.6/ defendant No.6 dated 31-01-2008.

4. It seems that the suit was filed on 23-08-2004. The petitioner‟s case is that after filing of the written statement, a joint compromise petition was filed. Witnesses on the point of compromise were also examined and, on the basis of that, a final Patna High Court CWJC No.6482 of 2013 (3) dt.04-07-2013 decree was prepared. However, subsequently, a petition under Order 23 Rule 3A was filed by one Md. Nesarul Haque, whose heirs are respondents Nos. 1 to 7 in the present application, for setting aside the compromise decree dated 07-03-2005 by filing Misc. case No. 5/05. For non compliance of certain peremptory orders, the said Misc. case No. 5/05 stood dismissed for default on 03-12-2005. However, the Misc. Case was subsequently restored. The said Misc. case No. 5/05, after having been restored, proceeded for ex parte hearing against defendant No.6/ respondent No. 14 herein he failed to appear in Misc. case No. 5/05. Grievance of the petitioner is that at the fag end of hearing of the said Misc. case, defendant No.6/ respondent No. 14 filed a petition on 25-05-2012 to recall the ex parte hearing order as against defendant No.6/ respondent No.14 and permit him to contest the case. The said petition was objected to by the petitioner. However, by the impugned order, learned court below allowed the prayer vide impugned order dated 18-01-2013.

5. The order has been challenged mainly on the ground that defendant No.6 failed to show any “good cause”, much less any cause, for the recall of ex parte hearing order as required under the mandatory provisions of Order 9 Rule 7 of the Code of Civil Procedure. It has been submitted that the said defendant Patna High Court CWJC No.6482 of 2013 (3) dt.04-07-2013 No.6 is in collusion with applicants of Misc. case No. 5/05 and all of them are trying to delay the disposal of the Misc. case No. 5/05.

6. From the impugned order it appears that order for ex parte hearing as against defendant No.6/ respondent No. 14 has been recalled subject to payment of cost of Rs. 2500/-.

7. Mr. R. K. P. Singh, learned counsel appearing on behalf of the petitioner, in support of his submission that in the absence of “good cause” having been shown, the petition should not have been allowed, has relied upon a Supreme Court judgement reported in AIR 1955 SC 425 (Sangram Singh v. Election Tribunal Kotah). Paragraphs 24 and 28 of which read thus:- “24. Rule 1 of O. 9 starts by saying------ “ „on the day fixed in the summons‟ for defendant appear answer…………………………”. and the rest of the rules in that order are consequential on that. This is emphasized by the use of the word “postponement” in R. 6(1) (c), of “adjournment” in R. 7 and of “adjournment” in R.

1. Therefore, we reach the position that O. 9, R. 6(1) (a), which is the rule relied on, is confined to the first hearing of the suit and does not „per se‟ apply to subsequent hearing? See- „Zeinulabdin Khan v. Ahmed Raza Khan‟, 5 Ind Additional Patna High Court CWJC No.6482 of 2013 (3) dt.04-07-2013 Public Prosecutor 233 at p. 236(PC) (I). 28 Then comes R. 7 which provides that if at „an adjourned hearing‟ the defendant appears and shows good cause for his “ „previous‟ non appearance”, he can be heard in answer to the suit. “as if he had appeared on the day fixed for his appearance.” This cannot be read to mean, as it has been by some learned Judges, that he cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared.”

8. He has also placed reliance on a judgement of this court reported in 1970 BLJR 519 ( Sukh Lal Mahton & Ors. v. Amrit Mahton) to contend that in the absence of “good cause” having been shown, ex parte order of hearing cannot be recalled.

9. Reliance has also been placed upon another judgement of the Supreme Court reported in AIR 1964 SC 993 (Arjun Singh v. Mohindra Kumar) to contend that ex parte order ought not to have been recalled in the absence of good cause. He has attempted to distinguish between „good cause‟ and „sufficient cause‟ and submits that in order to apply Order IX Rule 13, the party is required not only to show “sufficient cause” but “good Patna High Court CWJC No.6482 of 2013 (3) dt.04-07-2013 cause” which the respondent No.14 failed to do. Paragraph 8 of the judgement reads thus:- “8.Before proceeding to deal with the arguments addressed to us by Mr. Setalvad, learned counsel for the appellant, it would be convenient to mention a point, not seriously pressed before us, but which at earlier stages was thought to have considerable significance for the decision of this question viz., the difference between the words “good cause” for non appearance in O. IX, R. 7 and “sufficient cause” for the same purpose in O. IX R. 13 as pointing to different criteria of “goodness” or “sufficiency” for succeeding in the two proceedings; and as therefore furnishing a ground inapplicability of the rule of res judicata. As this ground was not seriously mentioned before us, we need not examine it in any detail, but we might observe that we do not see any material difference between the facts to be established for satisfying the two tests of “good cause” and “ sufficient cause”. We are unable to conceive of a “ good cause” which is not “sufficient” as affording an explanation for non-appearance, nor conversely of a “sufficient cause” which is not a good one and we would add that either of these is not different from “good and sufficient cause” which is used in this context in other statutes. If , on the other hand, there is any difference between the two, it can only Patna High Court CWJC No.6482 of 2013 (3) dt.04-07-2013 be that the requirement of a “good cause” is complied with on a lesser degree of proof than that of “sufficient cause” and if so, this cannot help the appellant, since assuming the applicability of the principle of res judicata to the decisions in the two proceedings, the Court proceeding, the lighter burden not discharged, it must a fortiori bar the consideration of the same matter in the later where the standard of proof of that matter is, if anything, higher.

10. The judgment of this court reported in the case of Sukh Lal Mahto (supra) will have no application and it does not support the petitioner‟s case as in that case the court was considering a situation where the judgement was reserved to be delivered and thereafter the defendants were allowed to contest the suit. In such circumstance, this court relying upon judgement of the Supreme Court in the case of Arjun Singh (supra), came to a finding that such application under Order 9 Rule 7 of the Code of Civil Procedure would not have been entertained. For the same reason case of Arjun Singh (supra) will also not apply, in the facts and circumstances of the present case. Submission that there is significant difference between „good cause‟ and “sufficient cause” is negatived by the ratio laid down in case of Arjun Singh which reads thus:- Patna High Court CWJC No.6482 of 2013 (3) dt.04-07-2013 “--------but we might observe that we do not see any material difference between the facts to be established for satisfying the two tests of “good cause” and “ sufficient cause”. We are unable to conceive of a “ good cause” which is not “sufficient” as affording an explanation for non- appearance, nor conversely of a “sufficient cause” which is not a good one and we would add that either of these is not different from “good and sufficient cause” which is used in this context in other statutes. If , on the other hand, there is any difference between the two, it can only be that the requirement of a “good cause” is complied with on a lesser degree of proof than that of “sufficient cause----------”

11. Whether the defendant No.6/ respondent No.14 was able to make out a good case for his absence and whether it was just and proper to allow him to appear in the case is discretion to be exercised by the court in seisin of the case. The court considered the petition under Order 9 Rule 7 of the Code of Civil Procedure and thought it proper to allow it, subject to payment of cost of Rs. 2500. I do not see any reason to interfere with the said order in exercise of jurisdiction under Article 227 of the Constitution of India as the court below can‟t be said to have acted beyond his jurisdiction or in flagrant violation or disregard of law Patna High Court CWJC No.6482 of 2013 (3) dt.04-07-2013 or the procedure. This court will step in, in exercise of supervisory jurisdiction only when grave injustice or gross failure to justice is occasioned by an order passed by the inferior court during the pendency of a lis. There being no such situation, I do not find any merit in this application. In view of above, this application is dismissed with a cost of Rs. 2500/- to be deposited by the petitioner in the account of Bihar State Legal Services Authority, Patna within a period of four weeks from today. (Chakradhari Sharan Singh, J) BKS/-