G.P. SRIVASTAVAversusSHRI R.K. RAIZADA AND ORS.

                                 G.P. SRIVASTAVA                                     A
                                         v.
                         SHRI RK. RAIZADA AND ORS.

                                  MARCH 3, 2000

                    [S. SAGHIR AHMAD AND RP. SETHI, JJ.]                             B

          Code of Civil Procedure, 1908-0rder 9, Rule 13-Exparte decree-
    Power to set aside-Party to show sufficient cause for non-appearance on the
    date of hearing.

          Exparte decree-Setting aside of-Narrow and technical approach of
                                                                                     c
    court-Held, leads to unnecessary prolonging of litigation-Further, justice is
    met only if application is allowed giving opportunity to prove his case within
    a reasonable time.

       /Interpretation of Statutes-Liberal construction-To enable the court to       D
    do complete justice.

          A suit for arrears of rent, ejectment and damages filed against the
    appellant was decreed ex-parte due to non-appearance. The appellant filed
    an application under Order 9 Rule 13 of the Code of Civil Procedure for
    setting aside the ex-parte decree. It was pleaded that non-appearance of the     E
    appellant or his counsel was due to appellant's employment, his illness and
    death of counsel's nephew. Both the trial court and the High Court did not
    accept the pleas raised by the appellant. The High Court also noticing the
    appellant's previous negligence rejected the revision petition. Hence these
    appeals.
                                                                                     F
          Allowing the appeals, this Court

          HELD : 1.1. Under Order 9 Rule 13 of the Code of Civil Procedure
    the court has no power to set aside an ex-parte decree unless 'sufficient
    cause' is shown for non-appearance of the defendant in the case on the
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    date of hearing or the court is satisfied that the summons were not duly
    served upon the defendant. (100-G-H]



-
          1.2. The 'sufficient cause' for non-appearance refers to the date on
    which the absence was made a ground for proceeding ex-parte and cannot
    be s_tretched to rely upon other circumstances anterior in time. The party       H
                                         97
    98                      SUPREME COURT REPORTS                 [2000] 2 S.C.R.
A   cannot be penalised for his previous negligence which had been overlooked
    and thereby condoned earlier. 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 malafide
    or intentional. (101-C-D]

B          1.3. The words "was prevented by any sufficient cause from appear-
    ing'' must be liberally construed to enable the court to do complete justice
    between the parties particularly when no negligence or inaction is imput-
    able to erring party. Sufficient cause for the purpose of Order 9 Rule 13 of
    the Code has to be construed as elastic for which no hard and fast guide-
c   lines can be prescribed. [101-B]

          2.1. In the instant case, the appellant pleaded his non-appearance
    due to his employment, his illness and death of counsel's nephew. ~s
    defence was found reasonable and was made within statutory period. The
    High Court erred in dismissing the appellant's application. Further, the
D   mere fact of obtaining a certificate from a private doctor could not be
    made a basis for rejecting the claim of sickness. If the defendant is found to
    be negligent, the other side may be compensated by costs and ex-parte
    decree be set aside on such terms and conditions. Thus, the ex-parte is set
    aside on payment of costs of Rs. 5,000 to the other side.
E                                                          [101-E; 100-F; 102-A]

           2.2. Both the trial court and the High Court have adopted a very
    narrow and technical approach in dealing with a matter pertaining to the
    eviction of the appellant despite the fact he had put a reasonable defence
    and had approached the Court for setting aside the ex-parte decree, admit-
F   tedly, within the statutory period. The litigation between the parties has
    unnecessarily been prolonged for about 17 days and the ends of justice can
    be met only if the appellant is allowed opportunity to prove his case within
    a reasonable time. As such the trial court is directed to afford an opportu-
    nity to the appella'Ilt and dispose of the suit within six months.
G                                                               (101-F-H; 102-B]

            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1934-35 of
    2000.

          From the Judgment and Order dated 23.9.1999 and 11.10.99 of the
H   Allahabad High Court in Civil Revision No. 73 of 1985 and Review Petition
               G.P. SRNASTAVA v. R.K. RAIZADA [SETHI, J.]                   99
No. 201 of 1999 respectively.                                                      A
     Gopal Subramanium, Santosh Kumar, Devesh Singh, Pradeep Ranjan
Tiwari and Rakesh K. Shanna for the Appellant.

     Tara Chandra Shanna Ajay Shanna and Ms. Pankhuri Srivastava for the
Respondents.                                                                       B
      The Judgment of the Court was delivered by

      SETHI, J. Leave granted.

       On his failure to appear in the Court either personally or through his
Advocate, the suit for arrears of rent, ejectment and damages filed against
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the appellant was decreed ex-parte on 10.3.1983. The application for setting
aside the ex-parte judgment and decree filed on 7.4.1983 in terms of Order
9 Rule 13 of the Code of Civil Procedure was dismissed by the Trial Judge
on 14.5.1985. The revision petition No.73 of 1985 filed by the appellant was
dismissed by the High Court vide the order impugned on 23rd September,             D
1999 on the ground that the appellant had failed to establish any just or
sufficient cause for his non appearance on the date fixed when the ex-parte
proceedings were initiated against him.

      We have heard the learned counsel for the parties and perused the            E
papers.
                                   //
        The facts of the case are that respondent-landlord filed a suit for
ejectment and recovery of the arrears of rent on 5.8.1981 alleging therein that
as the tenanted premises was new construction, the same is not covered under
U.P. Act No.30 of 1972. The appellant-defendant-tenant was alleged to have         F
failed to pay the rent since June; 1980 and he was in arrears amounting to
Rs.4,000. A notice under registered cover dated 29th May, 1981 was sent by
the respondent on the address of the appellant terminating his tenancy.
Despite service of the notice the appellant was stated to have neither vacated
the tenanted portion nor paid the arrears of rent or damages which neces-          G
sitated the filing of the suit. The appellant-defendant resisted the suit mainly
on the ground that the entire plot of land of Lane No.21, Shanker Nagar,
Nirala Nagar, Lucknow was let out to him in the month of February, 1997
and he was permitted to raise construction thereon. In pursuance to the
aforesaid permission, the appellant claimed t9 have constructed the entire         H
    100                      SUPREME COURT REPORTS                 (2000] 2 S.C.R.
A   portion of the tenanted premises after· incurring an amount of Rs.25,000.
    Monthly premium of Rs.300 was settled to be paid. The competence of the
    respondent-plaintiff to file the suit was also challenged alleging that he was
    not the landlord of the appellant.

           On 10th March, 1983 the case was called on for hearing by the Court
B
    in the early hours but as no-one appeared on behalf of the appellant, the· same
    was again taken up at 2 p.m. As none appeared at that time also, the suit
    was decreed ex-parte on the basis of evidence produced in the case. In his
    application under Order 9 Rule 13 of the Code of Civil Procedure, praying
    for setting aside ex-pane judgment and decree, the appellant submitted that
c   he was posted as 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 public. He became indisposed in the
    evening of 8th March, 1982 at the site which was about 85 kilometers away
    from Lucknow and could not move or return back to Lucknow till 11.3.1983
D   which prevented him to appear in the Trial Court on 10th March, 1983.
    Unfortunately, the young nephew of the counsel of the appellant met with
    an accident on 10.3.1983 and expired which prevented his counsel also to
    appear in the Court on that date. It was contended that the absence of the
    appellant and his counsel in the Trial Court was on account of the aforesaid
E   circumstances and not intentional. The application was supported by his
    affidavit and a medical certificate.

           The Trial Court did not accept the pleas raised by the appellant and
    found that the absence of the appellant or his counsel in the Court on
    10.3.1983 was not for just or sufficient cause. The filing of the medical
F
    certificate was not disputed but the same was not relied on as it was found
    to have been obtained from a private doctor and not from a Government
    doctor. The High Court also did not accept the contentions of the appellant
    and noticing his previous conduct rejected the revision petition refusing to
    set aside the ex-parte decree passed against him.
G
          Under Order 9 Rule 13 C.P.C. an ex-parte decree passed against a
    defendant can be set aside upon satisfaction of the Court that either the
    summons were not duly served upon the defendant or he was prevented by
    an~ 'sufficient cause' from appearing when the suit was called on for
H   hearing. Unless 'sufficient cause' is shown for non-appearance of the
               G.P. SRNASTAVA v. R.K. RAIZADA [SETHI, J.]                 101
defendant in the case on the date of hearing, the Court has no power to set       A
aside an ex-parte decree. The words "was prevented by any sufficient cause
from appearing" must be liberally construed to enable the court to do
complete justice between the parties particularly when no negligence or
inaction is imputable to erring party. Sufficient cause for the pmpose of
Order 9 Rule 13 has to be construed as elastic expression for which no hard       B
and fast guidelines can be prescribed. The courts have wide discretion in
deciding the sufficient cause keeping in view the peculiar facts and circum-
stances of each case. The 'sufficient cause' for non appearance refers to the
date on which the absence was made a ground for proceeding ex-parte and
cannot be stretched to rely upon other circumstances anterior in time. If
'sufficient cause' is made out for non appearance of the defendant on the
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date fixed for hearing when ex-parte proceedings initiated against him, he
cannot be penalised for his previous negligence which had been overlooked
and thereby condoned earlier. In a case where defend;µit approaches the
Court immediately and within the statutory time specified, the discretion is
normally exercised in his favour, provided the absence was not malafide or        D
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.

       In the instant case, it is not disputed that the nephew of the couns9-
of the appellant had died in a road accident on the date of hearing and that      E
the appellant himself was not at the station on account of his employment
and illness. The mere fact of obtaining a certificate from a private doctor
could not be made a basis for rejecting his claim of being sick. Both the Trial
Court as also the High Court have adopted a very narrow and technical
approach in dealing with a matter pertaining to the eviction of the appellant
despite the fact that he had put a reasonable defence and had approached the      F
Court for setting aside the ex-parte decree, admittedly, within the statutory
period. Even if the appellant was found to be negligent, the other side could
have been compensated by costs and the ex-parte decree set aside on such
other terms and conditions as were deemed proper by the Trial Court. On
account of the unrealistic and technical approach adopted by the courts, the      G
litigation between the parties has unnecessarily been prolonged for about 17
years. The ends of justice can be met only if the appellant-defendant is
allowed opportunity to prove his case within a reasonable time.

      Under the circumstances, the appeal is allowed by setting aside the
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    102                     SUPREME COURT REPORTS                  [~000] 2 S.C.R.

A   order of the High Court and of the Trial Court. The ex-parte Judgment and
    decree passed against the appellant is set aside on payment of costs of
    Rs.5,000 to the other side. The Trial Court is directed to afford the appellant
    opportunity to prove his case and expedite the disposal of the suit preferably
    within a period of six months from the date of receipt of the copy of this
B   order.

    N.J.                                                        Appeals allowed.