HARI PRAKASH AHLAWAT Vs. VED PRAKASH AHLAWAT & ANOTHER
LAWS(UTN)-2013-5-91
HIGH COURT OF UTTARAKHAND
Decided on May 03,2013

Hari Prakash Ahlawat Appellant
VERSUS
Ved Prakash Ahlawat And Another Respondents

JUDGEMENT

- (1.) Respondent no.1 instituted a suit for dispossession of the petitioner as well as respondent no.2 and also for declaring the lease deed dated 30th October, 1998 void in respect of property no.31, presently 281/231 New Cant Road (Ravindra Nath Tagore Colony), Dehradun in the court of Civil Judge(Senior Division), Dehradun. Same was registered as suit no.856 of 1998, Ved Prakash Ahlawat vs. Chatar Singh Ahlawat & Others. The petitioner and respondent no.2 were served by way of publication. Thereafter they put their appearance in the case but did not file any written statement. Due to their absence, the case was proceeded ex-parte against the petitioner and respondent no.2 and on 19th November, 1999 an order was passed for proceeding the suit ex-parte. An application 21-C2 was filed by the petitioner for recalling that order. The said application was dismissed on 06.01.2000. On that day, the court ordered the ex-parte hearing of the case. Thereafter an application was filed to recall that order. The court realised that even ex-parte evidence had not been led by the plaintiff and the order dated 20.12.2000 was passed by mistake, therefore, that order was recalled and case was directed to be listed for orders on 20.12.2000. Since the Presiding Officer was on leave on 20.12.2000, the case was fixed for 22.12.2000. It is submitted that on 03.01.2001 the IInd Additional Civil Judge (Senior Division), Dehradun proceeded ex-parte against the petitioner and fixed 06.01.2001. On that day the application no.21-C2 moved by the petitioner for setting aside the order dated 19.11.1999 was rejected. Thereafter, the case was proceeded ex-parte and on 24.03.2001 IInd Additional Civil Judge (Senior Division), Dehradun decreed the suit of the plaintiff/respondent no.1 exparte against the petitioner/respondent no.2. On 24.03.2001 the petitioner filed an application under Order IX Rule 13 of C.P.C. for recalling the ex-parte judgment. Two grounds were taken in the application. First, his father-in-law lives in Hapur. He has no son. Therefore, wife of the petitioner started living there to lookafter her father. In June, 1999 his father-in-law undergone open heart surgery. Thereafter he became seriously ill and the petitioner had to stay with his father-in-law for a long period. Due to this reason petitioner could not appear on the date fixed. Secondly, petitioner's father also became seriously ill and petitioner alone used to lookafter him. On 27.02.2001 his father died and funeral was done same day. Petitioner performed last rites of his father and due to this reason petitioner could not appear and case was decreed ex-parte. Learned Civil Judge considered the application of the petitioner and dismissed the application under Order IX Rule 13 on the ground that no sufficient cause was given by the petitioner for his non-appearance on the day when the ex-parte decree was passed. Against the said ex-parte decree, the petitioner filed Misc. Civil Appeal No.82 of 2009 before the court of Additional District Judge, Dehradun. Additional District Judge, Dehradun also rejected the appeal of the petitioner. The learned Additional District Judge, in his order, dealt the arguments of the petitioner. In his order, the learned Additional District Judge held that the reason given by the petitioner regarding his absence in the year 1999 were factually incorrect. The petitioner in his application has written that in the year 1999 he went to look after his father-in-law, who had undergone open heart surgery but infact the documents filed by the respondent no.1 as 50-C1/50-C1/13 clearly suggest that the petitioner had no relation with his wife and father-in-law since 1996. During that period a divorce suit was pending. In her petition the wife of the petitioner stated that petitioner had deserted her since 1996. Additional District Judge also disbelieved another submission of the petitioner in which he has submitted that he was busy in funeral of his father on the date of hearing as death mentioned in the application was 27.02.2001, whereas the father of the petitioner died on 22.02.2001 and the suit was decreed ex-parte on 24.03.2001.
(2.) Mr. Lokendra Dobhal, Advocate for the petitioner submitted that the petitioner could not pursue his case as he was busy in his father's funeral and last rites. He submitted that since application under Order IX Rule 13 was filed within time, the same should have been allowed by the learned Civil Judge. He further submitted that in any case some cost could be imposed on the petitioner. Learned counsel for the petitioner relied upon the judgement of Supreme Court reported in G.P. Srivastava vs. R.K. Raizada and Others, 2000 3 SCC 54 and submitted that if sufficient cause is made out for non-appearance of the defendant on the date fixed for ex-parte hearing, he cannot be penalised for his previous negligence. He submitted that since the petitioner approached within time, his application under Order IX Rule 13 should have been allowed. The case law cited by the learned counsel for the petitioner does not help the petitioner in any manner, as the facts of the case cited by the learned counsel for the petitioner are different. In that case on 10.03.1983, the case was called for hearing by the Court in the early hours but as no one appeared on behalf of the appellant, the same was again taken up at 02:00 p.m. As none appeared at that time also, the suit was decreed exparte on the basis of evidence produced in the case. In that case an application was moved under Order IX Rule 13 of the Code of Civil Procedure, praying for setting aside ex-parte judgment and decree. In the said application, it was submitted that appellant was posted as an Assistant Engineer in the Irrigation Department and on account of the construction of the bridges over the casual drains he had to remain at the site in the interests of the public. He became indisposed in the evening of 08.03.1982 at the site which was about 85 kilometres away from Lucknow and could not move or return back to Lucknow till 11.03.1983 which prevented him from appearing in the trial court on 10.03.1983. Unfortunately, the young nephew of the counsel of the appellant met with an accident on 10.03.1983 and expired which prevented his counsel also from appearing in the court on that date. Considering these grounds as genuine grounds, the Hon'ble Supreme Court passed order. But, the facts of the present case are entirely different. The application moved by the petitioner under Order IX Rule 13 is silent about petitioner's non-appearance on 24.03.2001. It only says that on 27.02.2001 the father of the petitioner died and petitioner was busy in his cremation and due to this reason he could not appear in the court.
(3.) I have considered the submission of learned counsel for the petitioner. Though it is true that in normal circumstances, in case application under Order IX Rule 13 is filed within time, same should be allowed by the court. But, while allowing the application under Order IX Rule 13, the court is required to see the genuineness of the application. The court is also required to see the correctness of the facts mentioned in the application. In this case, I find that the facts mentioned in the application for setting aside the ex-parte decree are not correct. The petitioner submitted two things in his application. First, his business due to ailment of his father-in-law in the year 1999. Learned Additional District Judge has dealt this issue and found this submission factually incorrect on the basis of documentary evidence. Another submission of the petitioner that on 27.02.2001, the father of the petitioner died and he was busy in cremation etc. This fact was also not found correct. The father of the petitioner died on 22.02.2001 whereas the suit was decreed ex-parte one month after the death of father of the petitioner on 24.03.2001. No other ground was given for non-appearance of the petitioner or his counsel on 24.03.2001. I do not find any illegality in the orders of the courts below. The writ petition is dismissed.;


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