High Court · 2010

This defendant s revision I S direct ed againstt he 1 Lr 1 I Z I c2j W7 Z Order dat ed 14 2009 Addit ionai Dist rict JudgeBarnala 14 2007 Pl9I passedby t he order dat ed February Pl8IpassedbyAddit ional Clvil Judge Senior DivisionlBarnala wherebyapplicat ionunder Order9 Rule 13 of t he t o Code of Civil Procedure short CPCI filed by t he set aside t he expart edecree dat ed June 2 2005 I nnexurePll Ol passedbyCivil Judge6JuniorDivisionlBarnala was dism issed 2 Fact s brieflyare t hat a civil suit was filed by present in t he year 1999 againstt he present I t was beingcont est ed The were being counsel However t he were proceededagainstexm part e Um a 13: 28 Scanned True Copy of Original PHHC,Chandigarh U JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 420 4 v 4 Civil Revision No493 of 2009 l L e2m on August7 2004 as none decreedat edJune 2 on t heir behalf and t he 2005 AnnexurePllOl was passed 3 Pet it ionersm ovedt he t rial Court for set t ingaside under Order 9 Rule 13 CPC t heexpart edecree byfiling Annexure PllOlI ssueswere fram e Evidencewas recorded The was dism issedby Civil JudgeSenior DivisionlBarnala byorder dat ed February14 2007 4 was filed whichwas dism issed byAddit ional t Dist rict Barnala vide orderdat edSept em ber14 2009 5 t o have subst ant iveand also For a syst emof j ust icet o be in placeit is necessary t here I aws Wit hout t hat shall be disorder in so far as t here shall be no param et erswit hin which t he Court s are t o funct ion Rules and are enact ed wit h t he prim aryobj ectof dispensingsubst ant ivej ust iceand not t o t hwart I t is t herefore incum bent on t he Couns of I aw t o be I iberal and not t o t ake hypert echnical View which m ay result in denial of subst ant ivej ust ice I Z t r I 021 6e The Code of Civil Procedure and t he I aw of e Z Clm I im it at ionare essent iallyproceduralI aws I f a part yabsent s on t he dat e of hearingit m ay be proceededagainstexpart eor t he suit m ay be dism issedin default as t he case m aybe Provisionhas also been m ade for set t ingaside t he expart edecreelorderand rest orat ion of 7 I t all has t he root s in t he equit ablernaxim of alm ost universal applicat iont hat a cont est on m erit s is t he soul of j ust ice and a t echnical default should not be allowed t o st andin t he way 8e I n t he case in hand t he were proceeded againstexepart eand t he exepart edecree was passedon June 2 2005 Theyhad appoint edcounsel Shri RP Goyalt o representt hem who had assured t hat t heyneed not appear in person on t he dat es of in t he givensit uat ion assum ed t hat t heir hearingI f t he for t hem t here was not hingunnat uralin it JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document Um a 13: 28 counsel m ust be Scanned True Copy of Original PHHC,Chandigarh CAAUv6 I J 421 Civii Revision No493 of 2009 m 3m l rem iss on partof t he I t was aft er execut ion pet it ionwas filed bydecreelolders t hat t he cam e t o know of t he passingof expat t edecree Theyt hen filed t he applicat ion underOrder9 Rule 13 CPC 9 The suit was filed in t he year 1999 The were cont est ingit all t he I ongyearst ill t heywere proceededagainst expaneand decree was passedon June 2005 What is of essence t o be seen is whet her t he absence was int ent ionalor whet her t here were sufficientgroundfor it Aft ersix years of init iat ion of t he suit and it for t hat I ongperiodwhat benefit t he could derive by and get t ing expane decree passed against t hem 2 None ofecourse t his aspectgotovereI ookedbyt he Couns below There was t hen evidence and circum st ancest o show sufficientcause for t he absence Pet it ionerswere under t he t hat Shri RP GoyalAdvocat ewas appearingfor t hem and t heyhad reason so t o believe I t I at er cam e t o t heir not ice t hat Shri R GoyalAdvocat e had not appearedand t heyhad been proceededagainstexpart e Aft er t hat set t ingaside t he expart edecree The Court s below fell t here was no inordinat edelayin m ovingt he Court for in error by requiringt oo st rict a st andard of prooffrom t he under Order 9 Rule 13 CPC which result ed in denial of subst ant ivej ust ice Suppont o t his view can aut horit yGP Srivast avaVersus RK Raizada and ot hers 200013 Suprem eCourt Cases 54 whereinHonble t he Suprem eCourt has t he Court I eads t o held t hat narrow and t echnical approachof be had from t he Just ice can onlybe achievedif defendant is allowed t o prove his case 10 For t he reasons aforesaid t he revisionpet it ionI S accept edThe orders under are set easide The applicat ionunder Order 9 Rule 13 CPC is accept edwit h cost s of 1 Q X U Z Z Q4 I m Z 0 Rs0001 The expart edecree dat ed June 2 2005 shall be allowedbyt he t rial Court JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document PllOl is set aside The Um a 13: 28 Scanned True Copy of Original PHHC,Chandigarh 3 10 29 e 10 422 Civil Revision N6493 of 2009 m 4m 1 t o cont est t he suit fromt he dat e of beingproceededagainstexepane onwards The t rail Court shall rest ore t he file issue not ice t o t he part iesand proceedfurt hert o decidet he case on m erit s Disposedof C1 6u4 0 1NAWABSI NGHI JUDGE 092010 neet ulsom 1 I Z I 021 Z Um a 13: 28 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document