# Raj Kumar Agarwal v. Suresh Chandra Jain Opp. Party

- **Citation:** (2015) 2 ILRA 760
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-10
- **Case number:** C.M.W.P. No. 54978 of 2014
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-agarwal-v-suresh-chandra-jain-opp-party-43174
- **Pages:** 5

## Headnote

C.P.C.-Order IX Rule 13-Application to
recall ex-parte decree-without showing
sufficient cause for non appearancejudgment passed on merit-can not be
recalled-without
disclosing
date
and
particular of negotiation on compromisemere story of compromise can not be
believed-Courts
below-justified
in
rejection of application to recall the
judgment passed on merit.
Held: Para-23
In such circumstances, I do not find any
merit in the contention of the petitioner.
The Court below was not justified in
rejecting the application to recall the
judgment and ex parte decree merely on
the ground that the judgment and
decree was passed on merits.
Case Law discussed:
(2009) 2 SCC 205; 1964 SC 993; (2011) 3 SCC
545; (2000) 3 SCC 54; AIR 1962 SC 257; AIR
1930 Cal 488; (2005) 1 SCC 787.

## Text

760
 INDIAN LAW REPORTS ALLAHABAD SERIES
placed before this Court to indicate that
the petitioner failed to do substantial
justice with the said post.
17.
The judgements cited by learned
counsel for the petitioner are fully applicable
to the petitioner's case. If a worker gains
sufficient experience after serving several
years in the department, he cannot be refused
confirmation on the ground that he did not
possess
requisite
qualifications.
The
petitioner worked on the promoted post for a
substantial period of time without being
questioned by the respondents and at the fag
end of his retirement he cannot be denied
confirmation.
18. With the aforesaid observations,
the
writ
petition
is
allowed.
The
impugned order dated 19.05.2006 is
hereby set aside. The petitioner is entitled
to get all the benefits, which have been
given to similarly situated persons, from
the same date. The said exercise shall be
completed by the respondents within a
period of two months from the date of
production of certified copy of this order.
19. There shall be no order as to
costs.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
C.M.W.P. No. 54978 of 2014
Raj Kumar Agarwal
 ...Petitioner
Versus
Suresh Chandra Jain
...Opp. Party
Counsel for the Petitioner:
Sri S.N. Verma, Sri Sarvan Kumar Mishra
Counsel for the Respondents:
Sri Amitabh Patel
C.P.C.-Order IX Rule 13-Application to
recall ex-parte decree-without showing
sufficient cause for non appearancejudgment passed on merit-can not be
recalled-without
disclosing
date
and
particular of negotiation on compromisemere story of compromise can not be
believed-Courts
below-justified
in
rejection of application to recall the
judgment passed on merit.
Held: Para-23
In such circumstances, I do not find any
merit in the contention of the petitioner.
The Court below was not justified in
rejecting the application to recall the
judgment and ex parte decree merely on
the ground that the judgment and
decree was passed on merits.
Case Law discussed:
(2009) 2 SCC 205; 1964 SC 993; (2011) 3 SCC
545; (2000) 3 SCC 54; AIR 1962 SC 257; AIR
1930 Cal 488; (2005) 1 SCC 787.
(Delivered by Hon'ble Suneet Kumar, J.)
1. Heard learned counsel for the
parties.
2. The respondent/landlord filed an
application under Section 21 (1)(a) of Act
No. 13 of 1972 for release of the shop in
dispute. The application was allowed exparte on 12 December 2011 by the
Prescribed
Authority.
Aggrieved,
petitioner made an application under
Order 9 Rule 13 of Code of Civil
Procedure stating that he could not appear
on the date of hearing for the reason that
he was trying to settle the dispute outside
the Court with the respondent/landlord.
The settlement could not be reached,
therefore, he did not appear on the date
fixed for hearing. The Authority by order
2 All] Raj Kumar Agarwal Vs. Suresh Chandra Jain
761
dated
10
April
2012
rejected
the
application noting that the application was
not maintainable as the release application
was decided on merits. Aggrieved, by the
order dated 10 April 2012 rejecting the
application under Rule 13 of Order 9 and
the decree, the petitioner has approached
this Court in writ jurisdiction.
3. The submission of the learned
counsel for the petitioner is that on 25
October 2011, the evidence of the
petitioner was closed, however, the Court
permitted the petitioner for filing the
evidence on 18 November 2011. On 18
November 2011 the petitioner appeared,
but, the date was adjourned for 22
November 2011. On the said date the
petitioner did not appear taking a plea that
he was trying to settle the matter out side
the Court. On 22 November 2011 the case
was directed to come up for argument on
1 December 2011, finally the release
application was decided on merits on 12
December 2011. The Court below upon
noting the aforementioned dates and the
conduct of the petitioner rejected the
application to recall the judgment and
decree holding that since the application
was decided on merits, the application
under
Order
9
Rule
13
is
not
maintainable.
4. It is contended on behalf of the
petitioner that the petitioner could not
appear after 18.11.2011 on a bona fide
belief that a compromise would be
effected between the parties, therefore, the
petitioner may be given an opportunity
and the matter be decided upon rehearing
the petitioner.
5. In an application under Order 9
Rule 13 to recall an ex parte judgment and
decree, the petitioner would have to
establish that he was prevented by any
sufficient cause from appearing when the
case/suit was called on for hearing. It is
admitted
that
the
petitioner
was
participating in the proceedings and
appeared
on
18
November
2011,
thereafter, the petitioner did not appear on
the pretext that effort was being made to
settle the matter outside the Court,
therefore, the petitioner was aware of the
date next fixed in the case for 22
November 2011. On the said date the
petitioner did not appear on the plea of
negotiation and settlement. But it is urged
that no settlement could be arrived at
between the parties, therefore, it was
incumbent upon the petitioner to have
enquired from his counsel the next date
fixed on 22 November 2011, the date of
which the petitioner admittedly had
knowledge. The Court fixed 1 December
2011 for argument and finally the release
application was decided on 12 December
2011.
6. This rule requires an application
by the defendant and if the defendant
satisfies the court that (i) the summons
was not duly served; or (ii) he was
prevented by any sufficient cause from
appearing when the suit was called out for
hearing, the court will set aside the decree
passed against him and appoint a day for
proceeding with the suit.
7. The language of the rule is plain,
express and unambiguous and the grounds
mentioned therein are exhaustive.
8. As provided in Rule 6, the suit
may proceed ex parte against the
defendant only when it is proved by the
plaintiff to the satisfaction of the court
that the defendant did not appear even
though the summons was duly served. In
762
 INDIAN LAW REPORTS ALLAHABAD SERIES
that case, an ex parte decree may be
passed against him. Therefore, if the
defendant satisfies the court that the
summons was not duly served upon him,
the court must set aside the ex parte
decree passed against him.
9. The expression "sufficient cause"
has not been defined anywhere in the
Code. It is a question to be determined in
the facts and circumstances of each case.
The words "sufficient cause" must be
liberally construed to enable the court to
exercise powers ex debito justitaie. A
party should not be deprived of hearing
unless
there
has
been
something
equivalent
to
misconduct
or
gross
negligence
on
his
part.
Necessary
materials should be placed on record to
show that the applicant was diligent and
vigilant. Improper advice of advocate may
be a good ground to set aside ex parte
decree but it cannot be accepted as a
sufficient cause in all cases. Conversely,
if "sufficient cause" is not shown, ex parte
decree cannot be set aside. "The right and
this duty is a sine qua non of judicial
procedure. An order setting aside ex parte
decree is judicial, it must be supported by
reasons. (Refer: Mahesh Yadav vs.
Rajeshwar Singh1)
10. If there are delaying tactics and
non-cooperation on the part of the party,
he cannot seek indulgence of the court.
The test to be applied is whether the party
honestly intended to remain present at the
hearing of the suit and did his best to do
so.
11. In Arjun Singh vs. Mohindra
Kumar AIR2 Supreme Court observed
that every good cause is a sufficient cause
and must offer an explanation for nonappearance. The only difference between
a "good cause" and "sufficient cause" is
that the requirement of a good cause is
complied with on a lesser degree of proof
than that of a "sufficient cause".
12. When an application for setting
aside ex parte decree is made by the
defendant, the court should consider
whether the defendant was prevented by
"sufficient cause" from appearing before
the court when the suit was called out for
hearing. "Sufficient cause" is a question
of fact.
13. The following causes have been
held to be sufficient for the absence of the
defendant;
(1)bona fide mistake as to the date of
hearing;
(2)Late arrival of a train;
(3)sickness of the counsel;
(4)fraud of the opposite party;
(5)mistake of pleader in noting
wrong date in diary;
(6)negligence of next friend or
guardian in case of minor plaintiff or
defendant;
(7)death of relative of a party;
(8)imprisonment of party;
(9)strike of advocates;
(10)no instructions pursis by a
lawyer, etc.
14. The following causes, on the
other hand, have been held not to be
sufficient for absence of the defendant for
setting aside an ex parte decree;
(1)dilatory tactics;
(2)bald statement of noting wrong
date in diary;
(3)negligence of party;
(4)counsel busy in other court;
(5)suit of high valuation;
2 All] Raj Kumar Agarwal Vs. Suresh Chandra Jain
763
(6)absence of defendant after prayer
for adjournment is refused;
(7)hardship of defendant;
(8)absence to get undue advantage;
(9)mere thinking that the case will
not be called out; not taking part in
proceedings, etc.
15. The Supreme Court in Parimal
vs. Veena3 was considering the scope and
ambit of an application under Order 9
Rule 13. In the facts of that case, the trial
court recorded that the notice of the
petition was served upon the applicant
who refused to accept the notice,
subsequently, when served the applicant
again refused to accept the notice
thereafter, the notice was published in a
daily and was sent to the applicant at her
address.
16. In these circumstances, the
application under Order 9 Rule 13 filed
by the applicant on the plea that she was
not residing at the said residence but was
residing with her brother. The trial court
rejected the application. The Supreme
Court held that the presumption of
publications stood rebutted by a bald
statement made by the applicant that she
was living at a different address with her
brother. The Apex Court reversed the
order passed by the High Court, as the
application was not considered in the right
perspective regarding substituted service.
The Court observed as follows:
"However, in case the matter does
not fall within the four corners of Order 9
Rule 13 CPC, the Court has
no
jurisdiction to set aside an ex parte
decree. The manner in which the
language of the second proviso to Order 9
Rule 13 CPC has been couched by the
legislature makes it obligatory on the
appellate Court not to interfere with an ex
parte decree unless it meets the statutory
requirement."
17. Material date for deciding
"sufficient cause" for non-appearance by
the defendant is the date on which ex
parte decree was passed and not his
previous negligence or past defaults. In
G.P. Srivastava v. R.K. Raizada4, the
Supreme Court observed:
"The 'sufficient cause' for nonappearance refers to the date on which
the absence was made a ground for
proceeding ex parte and cannot be
stretched to rely upon other circumstance
anterior in time. If sufficient cause' is
made out for non-appearance of the
defendant on the date fixed for hearing
when ex parte proceedings initiated
against him, he cannot be penalized for
his previous negligence which had been
overlooked
and
thereby
condoned
earlier."
18. Since the Code makes specific
provision for setting aside ex parte decree,
no inherent power can be exercised to set
aside such decree.
19. As Rankin, L.J. stated, "I
entirely dissent from the view that, if no
case is made out under that rule (Rule 13),
it is open to the learned Judge to enlarge
the rule by talking about Section 151."
(Refer: Manohar Lal vs. Seth Hira Lal5,
K.B. Dutt vs. Shamsuddin Shah6).
20. Remedy against an ex-parte
decree has two options (1) to file a regular
appeal (2) to file an appeal for setting
aside the order in terms of Order 9 Rule
13. Both the proceedings are available
simultaneously.
764
 INDIAN LAW REPORTS ALLAHABAD SERIES
21. In Bhanu Kumar Jain v. Archana
Kumar & Anr7 the Supreme Court held as
follows:
"26. When an ex parte decree is passed,
the defendant (apart from filing a review
petition and a suit for setting aside the ex
parte decree on the ground of fraud) has two
clear options, one, to file an appeal and
another to file an application for setting aside
the order in terms of Order 9 Rule 13 of the
Code. He can take recourse to both the
proceedings simultaneously but in the event
the appeal is dismissed as a result whereof the
ex parte decree passed by the trial court
merges with the order passed by the appellate
court, having regard 9 to Explanation
appended to Order 9 Rule 13 of the Code a
petition under Order 9 Rule 13 would not be
maintainable.
However,
Explanation
I
appended to the said provision does not
suggest that the converse is also true."
22. Applying the principles of law
upon the facts of the case. The petitioner
in the application has not made any
averment for his absence from 22
November 2011 to 12 December 2011.
The application under Order 9 Rule 13
was moved on 5 January 2012. It would
appear that the absence of the petitioner
on the date of hearing was deliberate and
willful without sufficient cause, the plea
that the petitioner was negotiating with
respondent/landlord was not acceptable as
the entire application is silent as to when
the negotiation commenced and the date
on which it failed. It is also not the case of
the petitioner that under the garb of
negotiation, the petitioner was kept in
dark, the respondent/landlord proceeded
with the case behind the petitioner's back.
23. In such circumstances, I do not
find any merit in the contention of the
petitioner. The Court below was not
justified in rejecting the application to
recall the judgment and ex parte decree
merely on the ground that the judgment
and decree was passed on merits.
24. For the reasons stated herein
above, this Court is not inclined to
interfere with the impugned order though
for other reasons.
25. The amount of rent deposited by
the petitioner while filing the present writ
petition which was converted from
revision shall be paid by the Court below
to the respondent within six weeks from
the date of service of certified copy of this
order.
26. The writ petition is dismissed.
27. No order as to costs.
--------