Judgment:
A.N. Divecha, J.
1. The order passed by the learned 4th Joint Civil Judge (S.D.) at Baroda on 23rd January, 1985 in Civil Miscellaneous Application No. 155 of 1983 is under challenge in Appeal from Order No. 114 of 1985 and the order passed by the same Judge on the same date in Civil Miscellaneous Application No. 156 of 1983 is under challenge in the Appeal from Order No. 115 of 1985. Thereby the trial Court was pleased to reject the application made by the present appellant for setting aside the ex-parte decree passed against it in Special Civil Suit No. 348 of 1981 as well as in Special Civil Suit No. 418 of 1981.
2. Since the parties are common in both these appeals and since identical questions of fact and law are found involved, with the consent of the learned Advocates for the parties, I have thought it fit to dispose of both these appeals by this common judgment of mine.
3. The facts giving rise to these two appeals move in a narrow compass. The respondent herein filed one Civil Suit against the present appellant in the Court of the Civil Judge (S.D.) at Baroda for a decree in the sum of Rs. 5,37,768.27 paise and other incidental reliefs. It came to be registered as Special Civil Suit No. 348 of 1981. The respondent herein filed another suit against this very appellant in the same Court for a decree in the sum of Rs. 2,74,333/- and other incidental reliefs. It came to be registered as Special Civil Suit No. 418 of 1981. It appears that in neither suit the present appellant filed its written statement. It appears that both the suits were assigned to the learned 4th Joint Civil Judge (S.D) at Baroda for trial and disposal. It appears that the learned trial Judge raised the necessary issues in each suit. It appears that the respondent in each suit made one application on 20th July, 1983 for pronouncing the judgment and passing the decree as provided under Order 8 Rule 10 of the Civil Procedure Code, 1908 ('the Code' for brief). It appears that acting on that application the trial Court pronounced the judgment and passed the decree as prayed for under Order 8 Rule 10 of the Code. Thereupon, the present appellant made one application in each suit under Order 9 Rule 13 of the Code for setting aside the decree passed against it. According to the present appellant the decree passed by the trial Court in each suit was an ex-parte decree. Its application for setting aside the decree passed in Special Civil Suit No. 348 of 1981 was registered as Civil Miscellaneous Application No. 155 of 1983 and that in Special Civil Suit No. 418 of 1981 as Civil Miscellaneous Application No. 156 of 1983. The respondent herein filed its reply to each application and resisted it on various grounds. After hearing the parties, the learned 4th Joint Civil Judge (S.D.) at Baroda by his separate order passed on 23rd January, 1981 in Civil Miscellaneous Applications Nos. 155 of 1983 as well as 156 of 1983 was pleased to reject both the applications. The aggrieved party has thereupon preferred these two appeals questioning the correctness of the aforesaid two orders passed by the learned trial Judge in the aforesaid two applications.
4. It appears that what has weighed with the learned trial Judge was that the decree was passed under Order 8 Rule 10 of the Code and it could have been challenged only by way of appeal. The other ground which appears to have weighed with the learned trial Judge for rejecting the applications in question was that the present appellant in each case failed to make out a sufficient cause for not filing its written statement in the suit. I think neither ground should have weighed with the learned trial Judge in deciding the fate of the applications in question.
5. As rightly submitted by Shri Patel for the appellant before me, the grievance made on behalf of the appellant in its application in question was to the effect that the application made by and on behalf of the respondent herein for a decree under Order 8 Rule 10 of the Code in each suit was not served to the learned Advocates for the present appellant in the trial Court or to the present appellant itself. In that view of the matter, runs the submissions of Shri Patel for the appellant in each case, it was not possible for the present appellant to have known what was what in the matter. Again it appears that the learned Advocate for the present appellant in the trial Court was not present when the fate of the application made in each suit by and on behalf of the present respondent under Order 8 Rule 10 of the Code was decided. Any decree or order passed in absence of a party or his Advocate can always be said to be an ex-parte decree.
6. It is trite law to say that an ex-parte decree can be challenged in an appeal under Section 96 of the Code or an application for setting it aside can be made under Order 9 Rule 13 thereof. Simply because an appeal against such decree is competent, it is no ground to reject an application under Order 9 Rule 13 of the Code. I think the approach of the trial Court in that regard can be said to be erroneous.
7. It may be noted that, while deciding the application under Order 9 Rule 13 of the Code, what is to be seen is whether or not the litigant makes out a sufficient cause for his absence on the date on which the judgment was pronounced or the order was passed. It is irrelevant whether or not a sufficient cause is made out for the litigant's omission in filing its written statement in the suit. In the present case, it appears that the application made by the present respondent in each suit for a decree under Order 8 Rule 10 of the Code was not served to the present appellant personally or through its Advocate. If such application was served to the present appellant, it could have as well tendered its written statement along with the necessary application on the date of its hearing. It is true that it is not the case of the present appellant that it had its written statement ready and it could have presented it to the Court if the application made by or on behalf of the present respondent in each suit under Order 8 Rule 10 of the Code was served to it. The purpose of serving a copy of any application to the other side is to give a notice to the other side about an attempt or endeavour to obtain orders from the Court on such application. No part to a litigation can be permitted to obtain orders behind the back of the other party. I think the learned trial Judge ought not to have been obsessed with or haunted by the fact that no sufficient cause was made out by or on behalf of the present appellant for omission to file its written statement in each suit.
8. Ordinarily, in view of what is narrated hereinabove, I should have remanded both these matters to the trial Court for deciding the fate of both the applications made by and on behalf of the present appellant for setting aside the ex-parte decree in each suit and for restoration of each suit to file. That might unnecessarily result in consumption of time and consequential delay in disposal of the main matters. Shri Patel for the appellant states at the Bar that, since the application in each suit made by and on behalf of the present respondent under Order 8 Rule 10 of the Code was not served to the learned Advocate for the present appellant in the trial Court, he was blissfully unaware of the matter and he had not remained present on that date on which the decree in each suit came to be passed. I think this by itself would constitute a sufficient cause for the purpose of condonation of default of appearance on the part of the learned Advocate for the present appellant in the trial Court and also on the part of the appellant at that stage. In that view of the matter, I am of the opinion that the application in each case for setting aside the ex-parte decree and for restoring the suit to file deserves to be accepted.
9. In the result, both these appeals are accepted. The impugned order passed by the learned trial Judge in each case is quashed and set aside. Civil Miscellaneous Applications Nos. 155 of 1983 and 156 of 1983 for setting aside the decrees passed by the trial Court in Special Civil Suits Nos. 348 of 1981 and 418 of 1981 are accepted. The decrees passed in the aforesaid two suits are quashed and set aside. Both the suits are ordered to be restored to file. There shall be no order as to costs on the facts and in the circumstances of the case.
It appears that the suits from which these proceedings have arisen have been filed as early as in 1981. Nearly 11 years have rolled by since then. It is therefore necessary that both these suits are disposed of by the trial Court as expeditiously as possible preferably by 31st December, 1992, but in any case by 31st March, 1993. The Registry is directed to send the writ in this case to the trial Court as expeditiously as possible preferably by 31st July, 1992.