Shri Jagat Guru Shankarachariya Swami Swaroopanand Saraswati Ji Maharaj Badrika-dwarika Peethadishw Vs. Sameer Electronics - Court Judgment

SooperKanoon Citationsooperkanoon.com/1044863
CourtMadhya Pradesh High Court
Decided OnOct-12-2012
AppellantShri Jagat Guru Shankarachariya Swami Swaroopanand Saraswati Ji Maharaj Badrika-dwarika Peethadishw
RespondentSameer Electronics
Excerpt:
r.p.no.541/2011 shri jagat guru shankarachariya sameer electronics swami swaroopanand saraswatiji mahara”12. 10.2012 ms.neelam goel, counsel for petitioner. shri a.k.jain, counsel for respondent. this review petition is filed against an order dated 6.4.2010, in civil revision no.249/2008, by which a revision preferred by the petitioner was dismissed, though the second alternate contention of the petitioner was accepted and cost imposed by the appellate court was enhanced to further rs.2,000/-. as the judge who had passed the order is not available, this matter is placed before the division bench as per rule 5 of order xlvii c.p.c.learned counsel for petitioner submitted that without considering the moot question involved in the case that there was no sufficient cause for absence of respondent, on the date on which the case was proceeded exparte, the revision petition was disposed of and cost was enhanced. it was also submitted by ms.goel that she had never prayed before the single bench for enhancement of the cost and the aforesaid statement has been wrongly recorded in the order. it was submitted that the order may be reviewed and the matter may be directed to be reheard by the revisional court. shri a.k.jain, learned counsel for respondent opposed the prayer. it was submitted by him that the prayer of petitioner for enhancement of cost was accepted by the single bench, so not the petitioner is estopped from seeking review of the aforesaid order. he has placed reliance to a full bench judgment of this court in commissioner of sales tax versus hukumchand mills [2004(2) mplj 492 ., a division bench judgment in sushila and another versus rajbeer singh and another [2007(3) mplj 361 .and single bench judgment in friends housing co-operative society and others versus tulsiram [2005(4) mplj 174 .r.p.no.541/2011 shri jagat guru shankarachariya sameer electronics swami swaroopanand saraswatiji maharaj 2 before considering the rival contention of the parties, it would be appropriate if factual position in the case is stated :- (a) the petitioner herein filed a suit for eviction against the respondent seeking eviction on various grounds, as are enumerated under section 12 of m.p.accommodation control act, 1961, which was registered as civil suit no.43-a/2003. in the suit, the respondent had filed written statement, he was represented by an advocate. however on the date fixed for evidence i.e.25.3.2006, the respondent herein had remained absent and was proceeded exparte. thereafter the exparte evidence was recorded and on 20.5.2006, an exparte judgment and decree was passed. (b) the respondent herein had filed an application under order 9 rule 13 c.p.c., for setting aside exparte judgment and decree, which was registered as m.j.c.no.6/2008. the trial court recorded the evidence and after recording evidence found that no case was made out for setting aside exparte decree, as the respondent had failed to prove sufficient cause for his absence and dismissed the application vide order dated 25.4.2008. (c) against this order an appeal was preferred by the respondent before the 15 th additional district judge (fast track) jabalpur, which was registered as misc.civil appeal no.2/2008. the learned additional district judge found that respondent had proved sufficient cause for setting aside the ex-parte judgment and decree, set it aside by imposing cost of rs.2,000/-. this order dated 16.5.2008 was subject matter of civil revision no.249/2008 filed by the petitioner. (d) before the single bench the aforesaid contention was raised, but it appears that the learned single judge found that the order passed by the appellate court was correct, however the another submission of applicant/petitioner in respect of inadequacy of cost was considered, accepted and it was enhanced. for ready reference, we quote the relevant part of the order passed by single bench, in which the cost was enhanced, because the contention of respondent before this r.p.no.541/2011 shri jagat guru shankarachariya sameer electronics swami swaroopanand saraswatiji maharaj 3 court is that petitioner herein is estopped from seeking review of the order passed by the single bench, which reads as under :- “the next submission of learned counsel for the applicant/plaintiff is that no adequate cost has been imposed by the appellate court and only rs.2,000/- has been imposed. the submission is accepted. it is directed that the respondent/defendant shall pay further cost of rs.2,000/- within 30 days. in view of the aforesaid, the revision stands disposed of.” not the objection of the respondent may be looked into that the petitioner herein is estopped from seeking review of the order is concerned, from the perusal of aforesaid order, it appears that when the firs.contention of petitioner herein, was repelled by the single bench the second contention was made by the petitioner herein, which was accepted and the cost was enhanced. though the aforesaid contention was raised by the applicant before the single bench, but it appears that it was not the solitary contention before the single bench, but when the firs.contention was repelled, then the second contention was accepted by the the single bench. the aforesaid factual position reveals that it was not the sole contention of applicant before the single bench in respect of enhancement of the cost, so the respondent cannot say that the petitioner is estopped from seeking review of the aforesaid order. this objection is without merit and is rejected. in this case, the solitary question before the court below was that whether there was sufficient cause for absence of respondent before the trial court when he was proceeded exparte. rule 13 of order 9 c.p.c., provides as under :- “o.9 r.13. setting aside decree ex parte against defendants - in any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it r.p.no.541/2011 shri jagat guru shankarachariya sameer electronics swami swaroopanand saraswatiji maharaj 4 aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. explanation - where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.” while deciding the application, the court below has to see whether there was any sufficient cause for absence of the defendant, when the suit was called for hearing. the crucial date for the sufficient cause would be the date when the defendant was proceeded exparte. but it appears that sufficiency of cause was looked into on the date when the exparte decree was passed. in these circumstances, if the firs.contention of the petitioner would have been taken proper care by the single bench, then the fate of the case would have been different. thus the question, which is going to the root of the case deserves to be considered by the single bench. r.p.no.541/2011 shri jagat guru shankarachariya sameer electronics swami swaroopanand saraswatiji maharaj 5 in view of aforesaid, we find that there is an error apparent on the face of the record in the order passed by the single bench. as the moot question involved in the case has not been looked into, the order passed by the single bench is recalled. office is directed to restore the file of civil revision no.249/2008 and to place it before the appropriate bench, who will hear the parties and decide the matter, in accordance with law. it is made clear that any observation made in this review petition shall not come in the way of any of the parties to raise their contentions, on merit of the case. looking to the facts of the case, there shall be no order as to costs. c.c., as per rules. (krishn kumar lahoti) (smt.vimla jain) judge judge m.
Judgment:

R.P.No.541/2011 Shri Jagat Guru Shankarachariya Sameer Electronics Swami Swaroopanand Saraswatiji Mahara”

12. 10.2012 Ms.Neelam Goel, counsel for petitioner.

Shri A.K.Jain, counsel for respondent.

This review petition is filed against an order dated 6.4.2010, in Civil Revision No.249/2008, by which a revision preferred by the petitioner was dismissed, though the second alternate contention of the petitioner was accepted and cost imposed by the appellate Court was enhanced to further Rs.2,000/-.

As the Judge who had passed the order is not available, this matter is placed before the Division Bench as per Rule 5 of Order XLVII C.P.C.Learned counsel for petitioner submitted that without considering the moot question involved in the case that there was no sufficient cause for absence of respondent, on the date on which the case was proceeded exparte, the revision petition was disposed of and cost was enhanced.

It was also submitted by Ms.Goel that she had never prayed before the Single Bench for enhancement of the cost and the aforesaid statement has been wrongly recorded in the order.

It was submitted that the order may be reviewed and the matter may be directed to be reheard by the revisional Court.

Shri A.K.Jain, learned counsel for respondent opposed the prayer.

It was submitted by him that the prayer of petitioner for enhancement of cost was accepted by the Single Bench, so not the petitioner is estopped from seeking review of the aforesaid order.

He has placed reliance to a Full Bench judgment of this Court in Commissioner of Sales Tax versus Hukumchand Mills [2004(2) MPLJ 492 ., a Division Bench judgment in Sushila and another versus Rajbeer Singh and another [2007(3) MPLJ 361 .and Single Bench judgment in Friends Housing Co-operative Society and others versus Tulsiram [2005(4) MPLJ 174 .R.P.No.541/2011 Shri Jagat Guru Shankarachariya Sameer Electronics Swami Swaroopanand Saraswatiji Maharaj 2 Before considering the rival contention of the parties, it would be appropriate if factual position in the case is stated :- (a) The petitioner herein filed a suit for eviction against the respondent seeking eviction on various grounds, as are enumerated under section 12 of M.P.Accommodation Control Act, 1961, which was registered as civil suit no.43-A/2003.

In the suit, the respondent had filed written statement, he was represented by an Advocate.

However on the date fixed for evidence i.e.25.3.2006, the respondent herein had remained absent and was proceeded exparte.

Thereafter the exparte evidence was recorded and on 20.5.2006, an exparte judgment and decree was passed.

(b) The respondent herein had filed an application under Order 9 Rule 13 C.P.C., for setting aside exparte judgment and decree, which was registered as M.J.C.No.6/2008.

The trial Court recorded the evidence and after recording evidence found that no case was made out for setting aside exparte decree, as the respondent had failed to prove sufficient cause for his absence and dismissed the application vide order dated 25.4.2008.

(c) Against this order an appeal was preferred by the respondent before the 15 th Additional District Judge (Fast Track) Jabalpur, which was registered as Misc.Civil Appeal No.2/2008.

The learned Additional District Judge found that respondent had proved sufficient cause for setting aside the ex-parte judgment and decree, set it aside by imposing cost of Rs.2,000/-.

This order dated 16.5.2008 was subject matter of Civil Revision No.249/2008 filed by the petitioner.

(d) Before the Single Bench the aforesaid contention was raised, but it appears that the learned Single Judge found that the order passed by the appellate Court was correct, however the another submission of applicant/petitioner in respect of inadequacy of cost was considered, accepted and it was enhanced.

For ready reference, we quote the relevant part of the order passed by Single Bench, in which the cost was enhanced, because the contention of respondent before this R.P.No.541/2011 Shri Jagat Guru Shankarachariya Sameer Electronics Swami Swaroopanand Saraswatiji Maharaj 3 Court is that petitioner herein is estopped from seeking review of the order passed by the Single Bench, which reads as under :- “The next submission of learned counsel for the applicant/plaintiff is that no adequate cost has been imposed by the appellate Court and only Rs.2,000/- has been imposed.

The submission is accepted.

It is directed that the respondent/defendant shall pay further cost of Rs.2,000/- within 30 days.

In view of the aforesaid, the revision stands disposed of.”

not the objection of the respondent may be looked into that the petitioner herein is estopped from seeking review of the order is concerned, from the perusal of aforesaid order, it appears that when the fiRs.contention of petitioner herein, was repelled by the Single Bench the second contention was made by the petitioner herein, which was accepted and the cost was enhanced.

Though the aforesaid contention was raised by the applicant before the Single Bench, but it appears that it was not the solitary contention before the Single Bench, but when the fiRs.contention was repelled, then the second contention was accepted by the the Single Bench.

The aforesaid factual position reveals that it was not the sole contention of applicant before the Single Bench in respect of enhancement of the cost, so the respondent cannot say that the petitioner is estopped from seeking review of the aforesaid order.

This objection is without merit and is rejected.

In this case, the solitary question before the Court below was that whether there was sufficient cause for absence of respondent before the trial Court when he was proceeded exparte.

Rule 13 of Order 9 C.P.C., provides as under :- “O.9 R.13.

Setting aside decree ex parte against defendants - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it R.P.No.541/2011 Shri Jagat Guru Shankarachariya Sameer Electronics Swami Swaroopanand Saraswatiji Maharaj 4 aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.

Explanation - Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.”

While deciding the application, the Court below has to see whether there was any sufficient cause for absence of the defendant, when the suit was called for hearing.

The crucial date for the sufficient cause would be the date when the defendant was proceeded exparte.

But it appears that sufficiency of cause was looked into on the date when the exparte decree was passed.

In these circumstances, if the fiRs.contention of the petitioner would have been taken proper care by the Single Bench, then the fate of the case would have been different.

Thus the question, which is going to the root of the case deserves to be considered by the Single Bench.

R.P.No.541/2011 Shri Jagat Guru Shankarachariya Sameer Electronics Swami Swaroopanand Saraswatiji Maharaj 5 In view of aforesaid, we find that there is an error apparent on the face of the record in the order passed by the Single Bench.

As the moot question involved in the case has not been looked into, the order passed by the Single Bench is recalled.

Office is directed to restore the file of Civil Revision No.249/2008 and to place it before the appropriate Bench, who will hear the parties and decide the matter, in accordance with law.

It is made clear that any observation made in this review petition shall not come in the way of any of the parties to raise their contentions, on merit of the case.

Looking to the facts of the case, there shall be no order as to costs.

C.C., as per rules.

(Krishn Kumar Lahoti) (Smt.Vimla Jain) Judge Judge M.