R.S. Chauhan, J.
1. The hyper-technical and the hyper- insensitive approach of the trial Court while dealing with an application under Order 9, Rule 13 of the Code of Civil Procedure (henceforth to be referred to as 'the Code', for short) is forcing a defence to run from pillar to post. What could be easily tackied at the level of the trial Court is being transported to this Court. Needlessly, this Court is being flooded day in day out with appeals against the rejection of application under Order 9, Rule 13 of the Code. This tide needs to be reserved, if this Court is not to be overwhelmed by the rising dockets.
2. The appellant has challenged the order dated 15.7.2006 passed by the Additional District Judge, Shahpura, District Jaipur whereby the learned Judge has rejected the application under Order 9 Rule 13 read with Section 151 of the Code.
3. The brief facts of the case are that the plaintiff- respondent had filed a suit for recovery of Rs. 1,20,000/- against the appellant. Vide order dated 13.4.2005, the summons were issued. Vide order dated 25.5.2005, the notices were sent through Registered A.D. According to the order-sheet dated 18.7.2005, the Registered A.D. was returned with a note indicating that the appellant had refused to accept the said notice. Thus, the service was deemed to be complete and ex-parte proceedings were commenced against the appellant. Eventually, an ex-parte judgment and decree was passed on 20.1.2006. Since the appellant came to know about the ex-parte judgment on 30.5.2006, on 21.6.2006 he immediately moved an application for getting the certified copy of the ex-parte judgment. He filed an application under Order 9 Rule 13 of the Code on 24.6.2006. Since there was a delay in filing of the application under Order 9 Rule 13 of the Code, he also filed an application under Section 5 of the Limitation Act. However, vide order dated 15.7.2006, the said application has been dismissed by the learned Judge. Hence, this appeal before this Court.
4. Mr. Pradeep Kalwania, the learned Counsel for the appellant, has contended that according to the report of the process server, no one was found at the address. Therefore, the notices were returned to the trial Court. According to the envelope of the Registered A.D., there is only a single note on the said envelope as 'N.F.', which stands for the words 'Not Found'. According to the learned Counsel, there is no indication that someone has refused to take the notice on behalf of the appellant. Thus, notice was never served upon the appellant. Hence, he was ignorant of the fact that a proceeding was pending against him in the Court. Moreover, the observations made in the order-sheet dated 18.7.2005 that the notice was refused, such an observation is belled by the notation on the envelope of the Registered A.D., which reads 'not found' furthermore, the notice was not pasted at the conspicuous place of the resident of the appellant in the presence of two independent witnesses. Lastly, the process server was not even examined by the Court to consider the fact whether the Registered A.D. was refused and if so by whom. The learned trial Court has ample power to. impose a cost on the appellant and set aside the ex-parte judgment and decree, but the learned Judge has refused to exercise the said power.
5. On the other hand, Mr. Gaurav Gupta, the learned Counsel for the respondent, has argued that the envelope of the Registered A.D. has been washed out. Therefore, notation on it is not very clear. But, there is an observation in the order-sheet dated 18.7.2005 clearly stating that the appellant had refused to accept the notice. This fact has been reflected in the order- sheet dated 18.7.2005. Thus, the service is deemed to be complete. Hence, he has supported the impugned judgment.
6. We have heard both the learned Counsels for the parties and have perused the record as well as the impugned judgment.
7. The function of the courts and reason for creation of the Judicial system is to do justice to the parties. Thus, by the very raison d'etre, the courts are expected to be liberal in spirit and not pedantic in their approach. Although, Order 9 of the Code bestows sufficient power to deny the defendant an opportunity of hearing, but such a power should not be used mechanically or at the drop of the head. Since exercise of such a power infringes on the constitutional right of being heard, since it also infringes on the principles of natural justice, such a power should be exercised in the rarest of the rare case. Repeatedly, it has come to the notice of this Court that the door is being shut on the defendant on the ground that the defendant has approached the Court beyond the period of limitation or ostensibly- on the ground that the summons were served. While judging the sufficiency of the reasons for the non-appearance of the defendant, the court should be sensitive to the harsh reality of this country. The illiterate and the poor litigant approaches the court for justice. The defendant approaches the court with the hope that the will be given ample opportunity to defend his case. At times, the defendant is assured by the counsel that he will be informed about the progress of the court. But, the counsel falls to adhere to his promise. At times, the counsel pleads 'no instructions', but the defendant has no knowledge of the counsel's pleading 'no instructions' before the court. At times, summons are said to be served upon the defendant, but no cogent evidence is produced to buttress such a claim. At times, the service of summons is presumed on weak evidence. At times, cases are transferred from one court to another without any information to the litigant, who may be residing miles away from the court. In such circumstances, the court should be circumspect in dismissing the application under Order 9 Rule 13 of the Code. For, defendant is being ousted from the court for no fault on his own. The illiterate litigant is hardly aware of the intricacies of the legal procedure. The illiterate litigant instinctively and in good faith relies on the assurance of the counsel and hopes that the court will be vigilant about his interests. Therefore, while dealing with an application under Order 9 Rule 13 of the Code, the court should not only be liberal in its spirit but should also be sensitive to the reality in which the litigant is trying to survive in the system. A mechanical, a pedantic, a myopic attitude of the court tends to thrown the litigation out of the Court and tends to shut the doors of the court upon him. Such an procedure compels the defendant to rush to this Court and this Court is unnecessarily being flooded by such litigation. In case the trial Courts were to be more sensitive to invoke its power under Order 9 Rule 13 of the Code, such needless litigation coming to this Court can be stopped.
8. A bare perusal of the Order 9 of the Code clearly reveals that the trial Court has ample power for setting aside the ex- parte proceeding as well as for setting aside the ex-parte judgment and decree by imposing a cost upon the defendant. Instead of exercising this power, the trial Court are mechanically dismissing the application under Order 9 Rule 13 of the Code. This is cause for concerned.
9. In cases where the service of summons is doubtful, the trial Court is duty bound to take evidence on the point whether the summons were duly served upon the defendant or not. The process server should be examined for the said purpose. In case the notice has been pasted at a conspicuous place of defendant's residence, then the two independent witnesses should also be examined by the court. It is only after examining the relevant persons that an application under Order 9 Rule 13 of the Code should be decided.
10. In the present case, there is an observation in the order- sheet dated 18.7.2005 that the registered notice was refused by the defendant. But the bare perusal of the envelope shows that whatever the notation on the envelope, it has been washed away. Therefore, what was the actual notation is unknown to the learned Judge when the application under Order 9 Rule 13 of the Code was being decided. According to the first summon, which was sent by the Court, no one was found at home. Therefore, it is highly doubtful whether the summons were actually served upon the defendant or not. In such a situation, the person who delivered the Registered A.D. should have been examined. In case such a person could not be located and in case it is doubtful whether the summons were duly served or not. The learned Judge could have easily imposed a cost on the defendant and could have set aside the exparte judgment and decree.
11. In case N. Balakrishnan v. M. Krishnamurthy : 2008(228)ELT162(SC) , the Hon'ble Supreme Court had clearly held that the court should lean towards giving opportunity of hearing to the defendant. Similarly, in the case of Vegepro Foods & Feeds Limited v. Jagannath Shreelal & Sons SBCMA No. 338/2001, decided on 21st August, 2006, this Court had held as under-
Every person has a right to be heard. Such a right not only flows out of the principle of natural justice, but also eminents from Article 21 of the Constitution of India. The right of hearing is an integral part of the right to life and right to personal liberty. Such a right can only be deprived by a procedure established by the law. Under Order 9 Rule 6 of the Code, where the plaintiff appears and defendant does not appear when the suit is called for hearing and if it is proved that the summons were duly served, the court has the power to hear the case ex-parte. Thus, in case the defendant does not appear after receiving the summons, the court is entitled to proceed ex-parte against him. According to Order 9 Rule 7 of the Code in case the defendant, for his previous non-appearance, shows good cause, then the right to contest the suit may be restored. In case, an exparte decree has been passed against the defendant under Order 9 Rule 13 of the Code, a right has been given to the defendant to seek setting aside of the ex-parte decree provided sufficient cause for his absence is placed before the court. The court is further empowered to impose cost as it thinks fit before setting aside the ex-parte decree. While setting aside an ex-parte decree, the court has to balance the conflicting interest of the defendant as he has a right to be heard, and to the plaintiff who has a right to claim that the case has been finally decided in his favour and a finality has to be attached to the said judgment and decree. Since an onerous responsibility has been imposed on the court, the court should not dismiss an application under Order 9 Rule 13 of the Code, in a mechanical manner. The court should be sensitive to the right of the defendant, to his social and educational background to be able to understand the intricacies of the legal procedure, to his conduct after passing of the decree. In case, the court has reasons to believe that the defendant has been avoiding the proceedings intentionally, or he has been lethargic in defending his case, or there has been an inordinate delay in submitting an application under Order 9 Rule 13 of the Code, then the Court would be justified in dismissing the application under the said order. However, in cases where the litigant is poor and illiterate, where he is unaware of the complexity of the judicial process, where he has been assured by the advocate that he will be informed, but no such information was ever sent, or where he has been vigilant to immediately approach the court after coming to know about the ex-parte decree, in such cases, the court should be liberal enough to set aside the ex-parte decree. The provisions for imposing a cost upon the defendant, in order to balance the interest of the plaintiff, should also be invoked by the court. The situations enumerated above are, of course, merely illustrative and not exhaustive of the situations. Each case, certainly, has to be decided on the peculiar facts and circumstances of that case, but considering the fact that the right of hearing evolves from the principle of natural justice and originates from Article 21 of the Constitution of India, a liberal spirit should be exercised by the trial Court. In case the trial Court is satisfied that the interest the plaintiff should be protected, it is empowered to impose a cost, even an exemplary cost on the defendant. Such a power should be exercised in appropriate cases. A narrow exercise of the powers under Order 9 Rule 13 of the Code is flooding the High Court. Since it is a matter which can be decided by the Subordinate Judiciary, the tide of litigation coming to the High Court against the orders rejection needs to be stemmed by all concerned.
12. Therefore, in the interest of justice, this Court has no other option but to quash and set aside the ex-parte judgment dated 20.1.2006 and the impugned order dated 7.7.2006. The trial Court is directed to recommence the trial from the stage when the ex-parte proceedings were started on 18.7.2005. Since the case is an old one, the trial Court is directed to decide the suit within eight months from the date of receipt of the certified copy of this order.
13. The Deputy Registrar (Judicial) is directed to send a copy of this judgment to all the learned District Judges. The learned District Judges are further directed to immediately bring this judgment to the notice of their respective Judicial Officers.