- (1.) THIS Revision is directed against an order of the Civil Judge, Ghaziabad, dated 31-5-1978, directing the applicant to deposit an amount of Rs. 2 lacs within sixty days for setting aside an ex parte decree and restoring the suit to its original number. The applicant was the defendant in the suit and an ex parte decree had been passed against him. He had made an application for setting aside the ex parte decree and had shown cause for not being present on the date when the decree was passed. The court below after considering the material on record came to the conclusion that there was sufficient cause for the absence of the applicant on the day the ex parte decree was passed. The court below allowed the application for setting aside the ex parte decree, but imposed a condition directing the defendant to deposit a sum of Rs. 2 lacs out of the decretal amount in court within 60 days. The present revision has been filed only against the imposition of this term.
(2.) LEARNED counsel for the applicant raised two points : Firstly, he contended that once the court comes to the conclusion that the defendant had no knowledge of the date fixed in the suit and there was a failure in giving him notice of the date fixed, he could not be saddled with any term or condition for making payment into court. The reason was that he was not at fault. He further urged that it was the bounden duty of the court to have informed the applicant of the date fixed in the suit and since that had not been done, he could not be saddled with the term of depositing a part of the decretal amount. In support of this contention, he relied on two decisions : (1) Gobardhan Ram Bisheshar Ram v. Banarsi Ram (AIR 1957 All 805) and (2) Alimohammad v. Manaklal Ratanlal (AIR 1960 Madh Pra 234). The latter case has discussed the situation when the court can order making of a deposit into court. His second contention was that in any view of the matter, the term imposed by the court below was onerous. The condition for setting aside the ex parte decree on the deposit of Rs. 2 lacs was unreasonable and amounted to a material irregularity in exercise of jurisdiction. In support of this contention, learned counsel cited a Division Bench decision of this Court in the case of B. Madan Mohan v. B. Kanhaiya Lal (AIR 1933 All 601). Learned counsel for the opposite party, however, contended that the court setting aside an ex parte decree is empowered to impose terms, and the exercise of that power is purely discretionary. A revisional court exercising its power under S.115 of the Civil P.C. rarely, if ever, interferes with the exercise of discretion by a subordinate court. The court below, contended the learned counsel, had given reasons for imposing the term of depositing Rs. 2 lacs in a suit filed for recovery of over Rs. 10 lacs. The court had stated that there were dilatory tactics adopted by the applicant, Learned counsel further contended that there was sufficient material on record to show that the court had wrongly allowed the application for setting aside the ex parte decree. He submitted that the instant case did not call for an interference.
(3.) HAVING heard the learned counsel for the parties, I am satisfied that the court below was right in setting aside the ex parte decree. It has given adequate reasons and has, after considering the material on record, held that there was sufficient cause for the absence of the applicant on the day the ex parte decree was passed. This is a finding on a question of fact, and I do not see any reason to interfere with this part of the order. I am making this observation, for a revision has been filed by the plaintiff in this Court, which has also been dismissed by a separate order. The only question which calls for consideration is whether the term of depositing Rs. 2 lacs in cash imposed by the court below calls for an interference. The relevant part of O.9 R.13 of the Code reads : "...... 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 date for proceeding with the suit." It is evident from the above that where the court is satisfied that the applicant was prevented by sufficient cause from appearing when the suit was called for hearing, the court shall make an order setting aside the decree, but in doing so, it may impose such terms as to costs or payment into court or otherwise as it thinks fit. It is, therefore, clear that the court, while setting aside an ex parte decree, can, if it thinks fit, impose costs or direct payment into court or otherwise. The word 'otherwise' would indicate that it was open to the court to direct furnishing of security or make any such order. The words "as it thinks fit" permits the court to pass any such order as to payment of costs or payment of money into court or furnishing of security etc. It is not incumbent on the court to pass an order imposing costs or payment of money into court or furnishing of security wherever an ex parte decree is being set aside. In a suitable case, the court may pass an order imposing costs, directing payment into court of the decretal amount or a part thereof and also furnishing of security for the balance, but such cases will depend on compelling facts so as to safeguard the interest of the plaintiff. It is also permissible for the court not to pass any order imposing any of these terms if it is satisfied that it is not necessary to do so in the interest of justice. It would, therefore, appear that the imposition of these terms would vary from case to case depending on the circumstance of each case. But, it must be borne in mind that there are judicial precedents which lay down the guidelines for the sake of uniformity in the administration of justice. It is necessary that these guidelines are followed except where it is necessary to lay down new guidelines.;