KOCHHAR, J. - (1.) THIS appeal under Section 96 of the Code of Civil Procedure ("the Code"), is directed against the exparte decree dated 20. 08. 1990, passed by the learned Additional District Judge, Gangapur City, in Civil Suit No. 31/88.
(2.) THE brief facts are as under: On 18. 08. 1988, the plaintiff-respondent had filed a suit, for recovery of Rs. 19,412/-, against the. appellant-defendant, with the allegations that the appellant-defendant had, vide the agreement dated 19. 08. 1985, agreed to sell the property in dispute, to him, for Rs. 50,000/- and he had paid Rs. 14,200/- by way of advance to her, and that the defendant had undertaken to execute a sale deed in respect of the property in dispute in favour of the plaintiff within a period of one month, on receiving the balance amount of Rs. 35,800/-, but that she had failed to do so in spite of the fact that the plaintiff was prepared to pay the balance amount to her and had asked her to do so had served notices on her, and that in reply to one of the notices, the defendant-appellant had wrongly alleged that she had come to Gangapur City, for executing the sale-deed, but, in fact, she had not done so. THE plaintiff further pleaded that he had later on learnt that the defendant had mortgaged the property in dispute in favour of one Panna Gurjar, for Rs. 58,000/-, and had also sold the same in favour of the brother-in-law of Panna Gurjar, and that these facts were not told by the defendant to him, and that the defendant thus appeared to have no saleable title and was thus not getting the sale-deed registered. THE plaintiff claimed a sum of Rs. 14,200/- by way of principal-amount and Rs. 5,212/- by way of interest at the rate of 12 per cent per annum, and prayed that a decree for the suit-amount be passed against the defendant. On receipt of the notice of the suit, the defendant filed her written-statement on 9. 01. 1989, admitting that the agreement dated 19. 08. 1985, was executed but pleaded that no advance-amount was paid by the plaintiff to her, but that a sum of Rs. 12,000/- was due from her husband to the plaintiff, and that after calculating interest thereon, a sum of Rs. 14,200/- was found to be due to him, and the said amount was mentioned in the agreement, and that thereafter also, the defendant had been ready and willing to do her part of the contract, but that the plaintiff, having failed to pay the balance-amount, the contract of sale could not be completed. She also denied the liability to pay interest and challenged the validity of the agreement. It was also pleaded that if the defendant was held liable to pay the amount, she was entitled to pay the same in instalments. On the pleadings of the parties, the learned trial court framed the following issues on 12. 09. in presence of the learned counsel for the parties, and the case was adjourned to 10. 11. 1989: 1- vk;k izfroknh;k ls oknh bdjkjukes fn- 19-8-85 ds isvs dh jkf'k 14]200 :i;s izkir djus dk vf/kdkjh gs\ 2- vk;k oknh izfroknh;k ls C;kt ,d :i;k lsadm+k ekgokjh ls izkir djus dk vf/kdkjh gs\ 3- vk;k eqgk;nk vos/k gs\ 4- vk;k izfrokfn;k fd'rsa djk ikus dh eq'rgd gs\ 5- nknjlh\ On 10. 11. 1989, no witness of the plaintiff was present, and the case was adjourned to 22. 01. 1990, and the same was the position on 22. 01. 1990, and the case was adjourned to 15. 03. 1990. On 15. 03. 1990, neither the defendant, nor her learned counsel appeared in the court and, as such, exparte proceedings were taken against the defendant-appellant, and the case was adjourned to 31. 03. 1990, for the exparte evidence of the plaintiff. On 31. 03. 1990, no witness of the plaintiff was present, and at the request of his learned counsel, the case was adjourned to 26. 04. 1990, and thereafter, to 9. 05. 1990 and to 1. 06. 1990, and thereafter, to 13. 07. 1990. Neither the defendant-appellant, nor her counsel appeared on either of the above said dates, and on 13. 07. 1990, the plaintiff appeared as his own witness, as PW 1, and closed his evidence, and the case was adjourned to 18. 08. 1990, for arguments, and the arguments were heard on 18. 08. 1990, and the case was adjourned for pronouncement of judgment, to 20. 08. 1990, on which date, vide the impugned judgment, the suit filed by the plaintiff was decreed for the suit-amount of Rs. 19,412/-,with pendente lite and future interest at the rate of 9 percent per annum, against the defendant-appellant, who has approached this Court by filing this appeal. I have heard the learned counsel for the parties and have also perused the record of the case. The first point, raised by Shri Gupta, the learned counsel for the appellant, is that the appellant is a resident of Jaipur, and she had engaged a counsel at Gangapur City, and for no reasons, the counsel absented and had not sent to her any information in regard to the date of hearing and, as such, no appearance could be made in the learned trial court, and in this view of the matter, the impugned decree is liable to be set aside. He has contended that for the fault of the counsel, no litigant should be allowed to suffer, and has relied on the decision of the Apex Court, in case, Rafiq and Another vs. Munshilal and Another (1 ). It is not disputed before me that no application under Order 9, Rule 13 of the Code, had been moved by the appellant defendant, for setting a side the decree, on the ground that she could not appear in the court on the above-said dates, for the reasons mentioned above or for any other sufficient cause. This court has to see on the basis of the record, whether the decree passed by the learned trial court is in accordance with law and the learned trial court proceeded in accordance with the procedure, prescribed by the Code. This Court has not to go into the question as to whether there was sufficient cause for the appellant to have absented on the dates starting from the date that the exparte proceedings were taken against her. If the argument of Shri Gupta, is accepted, this Court will have to go into the question by recording evidence of the parties, in regard to the contention being raised in this Court, which could have been raised only by moving an application under Order 9, Rule 13 of the Code, before the learned trial court. Here, the record shows that no appearance was made before the learned court below from 15. 03. 1990 till the case was decided on 20. 08. 1990 and this fact has not been disputed. The learned trial court was, therefore, within its power to proceed exparte against the defendant-appellant, and no defect can be found in the impugned decree. The first contention of Shri Gupta, is therefore, rejected. The authority relied upon by the learned counsel for the appellant, is of no assistance to the appellant in this appeal. It has next been contended by Shri Gupta that even in his exparte evidence, the plaintiff had failed to prove his case and, as such, the impugned decree is liable to be set aside.
(3.) FROM the record, I find that in support of his case, the plaintiff had appeared as his own witness and had deposed that he was ready and willing to pay the balance-amount of Rs. 35,800/-, to the defendant, who did not come forward for executing the sale-deed in spite of the fact that notices were sent by him, and in the notices dated 11. 10. 1985; 19. 09. 1985; and dated 4. 07. 1988 respectively (Exs. 2, 3 and 4), he had called upon the defendant-appellant, either to get the sale-deed executed, or to refund the amount of Rs. 14,200/- received by her from him, along with interest at the rate of 12 per cent per annum. The plaintiff also proved on record the Exhibit-1 as the agreement, admittedly executed by the defendant-appellant, in favour of the plaintiff-respondent. In the further part of his statement, the plaintiff deposed that after some days of the execution of the agreement (Ex. 1), the plaintiff had learnt that in fact, the defendant had already created a charge on property in dispute by mortgaging it in favour of Panna Gurjar, and had thereafter, sold the same to his brother-in-law, and this fact was not known to him. Shri Gupta has contended that the latter part of the statement of the plaintiff shows that he himself was not prepared to get the sale-deed executed by paying the balance-amount, and not that the defendant was not ready to execute the sale deed in his favour. I am unable to read in the statement of the plaintiff what Shri Gupta contents. As noted above, the plaintiff had specifically deposed that he had asked the defendant to get the sale deed executed by receiving the balance-amount, but, she had not done so. It is not disputed that no sale-deed was executed by the defendant-appellant, and the statement of the plaintiff that he had requested the defendant to execute the sale-deed and that he was prepared to the balance-amount of Rs. 3|5,800/- to her, has remained unchallenged and unrebutted for the reasons that the appellant-defendant did not appear in the court, at any time, after 15. 03. 1990. The plaintiff had thus proved his case about the non execution of the sale-deed by the defendant- appellant, during the period in question, or at any time thereafter, till the filing of the suit despite his sending the notices (Exs. 2, 3 and 4 ). In this view of the matter, the defendant-appellant having failed to perform her part of the contract, the claim of the plaintiff for the refund of the advance-amount, paid by him, could not be denied. ;