Intezemiya Committee Masjid Madarsa, Juna Bilaspur v. Jaipal Choudhary

Mr. Kshitij Sharma, Advocate Mr. Ravindra Kumar Agarwal, Advocate SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Order On Board 13/3/2023

1. Heard.

2. This petition has been filed by the petitioner being aggrieved with the order dated 30.7.2018 passed by the Second Additional District Judge, Bilaspur in Miscellaneous Civil Appeal No.9/2018, upholding the order dated 5.12.2017 passed by the Fourth Civil Judge Class I, 2 Bilaspur in Misc. Civil Suit No.19/2009, whereby, the application preferred by the petitioner/defendant under Order 9 Rule 13 of CPC, was dismissed.

3. Brief facts of the case are that in the year 1932, Late Abdul Rahman Khan gave his four houses bearing Nos.735, 736, 737 and 738 situated opposite Suryamukhi Bhawan, Juna Bilaspur as Wafk by way of a “Wakf Deed”. In the year 1995, a suit for eviction was filed by respondents 1 & 2/plaintiffs claiming to be the owners of the suit property on the ground that they had purchased the said property from Abdul Waheed Khan, Grandson of Abdul Rahman Khan. On

22.10.1999, which was “Friday”, the case was fixed for defendants’ evidence. On the said date, in the earlier hours, the defendants requested before the Court to take up the matter post lunch as they had to go to offer ‘Friday Namaz’. The said request was accepted by the Court below and the matter was listed at about 3:00 p.m and at that time, none appeared from the side of the plaintiffs/ respondents 1 & 2. However, after sometime, the plaintiffs appeared and sought adjournment as their counsel was busy in another Court and hence, the matter was adjourned and the case was listed for 25.10.1999. On the said date, none appeared from the defendants’ side and therefore, the Court below proceeded ex- parte. Thereafter, on 12.11.1999, an ex-parte judgment was passed and the suit was decreed in favour of the plaintiffs. The petitioner/defendant filed an application to set-aside the ex-parte decree raising a specific ground that though the date of “25.10.1999” was given as the next date of hearing, however, his counsel recorded the date as “25.11.1999” in the order sheet. Both the Courts below did not find sufficient cause for recording such 3 date by the defendant’s counsel and the application preferred under Order 9 Rule 13 of CPC for setting aside the impugned ex-parte decree, was dismissed.

4. Learned counsel for the petitioner/defendant would submit that the impugned orders are erroneous and bad in law as the suit has been filed and pending since 1995 and the defendant had been continuously appearing and contesting the suit and the same had also reached at an advanced stage. He would further demonstrate before this Court the two order sheets of the trial Court, which were recorded in the same file on the same date i.e. 28.10.1999, which was the next date for hearing final arguments in the case. In the first order sheet, it has been categorically mentioned that on

28.10.1999, the Presiding Officer is on leave, therefore, the case is adjourned for 5.11.1999 and on the same day, in the subsequent order sheet, the presence of Mr. Nisar Khan, Advocate for the plaintiffs, was marked and it has also been mentioned therein that since the arguments on behalf of the plaintiffs have been heard and the plaintiffs have also filed the written arguments, the case is posted on 12.11.1999 for judgment and in such circumstances, the ex-parte judgment was passed on the said date. He would further submit that it is well settled that for a fault/mistake on the part of a Counsel, a party should not suffer. He lastly submits that the petitioner has not acted in a negligent manner nor there was want of bonafide on his part, therefore, he prays to set-aside the impugned orders and restore the civil suit to decide the lis on its own merits. For the above submissions, learned counsel places reliance on the judgments rendered by Hon’ble the Supreme Court in the matters of G.P. Srivastava Vs. R.K. Raizada and others, (2000) 3 SCC 54 and 4 Parimal Vs. Veena Alias Bharti, (2011) 3 SCC 545.

5. Per contra, learned counsel for respondents 1 & 2 would support the impugned orders.

6. In G.P. Srivastava (supra), it has been observed by Hon’ble the Supreme Court that in a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.

7. In Parimal (Supra), the following has been held by the Hon’ble the Supreme Court in para 13, 14 & 15 : “13. “Sufficient cause” is an expression which has been used in a large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, Lonand Grampanchayat v. Ramgiri Gosavi AIR 1968 SC 222, Surinder Singh Sibia v. Vijay Kumar Sood .