Om Prakash Vs. Amarjit Singh & Anr.
EmailAppeal: Civil Appeal No. of 1988.
(In SLP 13417/87)
(In SLP 13417/87)
Petitioner: Om Prakash
Respondent: Amarjit Singh & Anr.
Apeal: Civil Appeal No. of 1988.
(In SLP 13417/87)
(In SLP 13417/87)
Judges: A.P.SEN & M.N. VENKATACHALLIAH, JJ.
Date of Judgment: Jul 14, 1988
Head Note:
CODE OF CIVIL PROCEDURE, 1908:
O.9 R. 7 – Ex parte proceedings – Failure to show good cause of earlier non-appearance. The proceedings must continue from the stage at which the later appearance was entered – The party not appearing could not be relegated to the position he would have occupied if he had appeared at the earlier hearings – But he certainly had the right of participating in the proccedings, to cross-examine the plaintiff or his witnesses and if necessary, to lead evidence in rebuttal.
Appeal allowed.
Cases Reffered:
1. Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya, 1955 (2) SCR 1.
2. Arjun Singh v. Mohindra Kumar & Ors., 1964 (5) SCR 946.
2. Arjun Singh v. Mohindra Kumar & Ors., 1964 (5) SCR 946.
JUDGEMENT:
O R D E R
1. Special Leave granted. Arguments heard.
2. We are satisfied that the High Court was in error in not interfering with the judgment and decree passed by the learned Subordinate Judge, as affirmed by the learned Additional District Judge, decreeing the plaintiff’s suit for specifie performance. Earlier, thelearned District Judge by his judgment and order dated February 14, 1986 had set aside the judgment and decree passed by the learned Subordinate Judge with the direction to re-admit the suit under its original number and proceed to determine the suit afresh. The effect of the remand order was to give the appellant a right to be relegated to the stage at which the suit was when the Court decided to proceed ex parte against him and it was not necessary to get the ex parte order set aside. The High Court failed to appreciate that the learned Subordinate Judge acted illegally and with material irregularity in decreeing the plaintiff’s suit for specific performance without affording to the appellant the opportunity of appearing and participating at the proceedings i.e. to cross-examine the plaintiff and his witnesses and if necessary, leading evidence in rebuttal. The law is clear on the subject. This Court interpreting the provision contained in Order IX, r. 7 of the Code of Civil Procedure, 1908 in Sangram Singh v. Election Tribunal, Kotah, bhurey Lal Baya (1955) 2 SCR 1 speaking through Vivian Bose, J. laid down that the Code is designed to facilitate justice and further its ends,and should not be treated as an enactment providing for punishments and penalties, and said;
“The laws of procedure are grounded on the principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Subject to clearly defind exceptions the laws of procedure should be construed, wherever reasonably possible, in the light of that principle.”
That very eminent Judge went on to add:
“The Court is invested with the widest possible discretion to see that justice is done to all concerned. No hard and fast rule can be laid down; and the Court in the exercise of its judicial discretion will have, in a given case, to determine what consequences are to follow from non-appearance.”
Dealing with Order IX, r.7 of the Code, he said that if a party is allowed to appear then, unless good cause is shown under Order IX, r.7 for earlier non-appearance, the proceedings must continue from the stage at whch the later appearance is entered, and the party so appearing cannot be relegated to the position he would have occupited if he had appeared at the earlier hearing or hearings i.e. he has no right to set back the hands of the clock. All that it means is that he must accept all that has gone before an be content to proceed from the stage at which he has come in. See also : Arjun Singh v. Mohindra Kumar & Ors. (1964) 5 SCR 946. In the present case, the appellant having failed to show good cause under Order IX, r.7 for the earlier non-appearance, the proceedings must continue from the stage at which the later appearance was entered and obviously, he could not be relegated to the position he would have occupied if he had appeared at the earlier hearing or hearings. But he certainly had the right of participating in the proceedings, to cross-examine the plaintiff or his witnesses and if necessary, to lead evidence in rebuttal. The failure of the learned Subordinate Judge to afford him an opportunity to do so virtually was tantamount to denial of justice.
3. Accordingly, the appeal succeeds and is allowed. The judgment and decree passed by the Subordinate Judge as well as those of the Additional District Judge and the order of the High Court declining to interfere as set aside. The learned Subordinate Judge shall now proceed to fix a date for the hearing of the suit and give the parties notice of the same, and shall decide the suit according to law. No costs.
1. Special Leave granted. Arguments heard.
2. We are satisfied that the High Court was in error in not interfering with the judgment and decree passed by the learned Subordinate Judge, as affirmed by the learned Additional District Judge, decreeing the plaintiff’s suit for specifie performance. Earlier, thelearned District Judge by his judgment and order dated February 14, 1986 had set aside the judgment and decree passed by the learned Subordinate Judge with the direction to re-admit the suit under its original number and proceed to determine the suit afresh. The effect of the remand order was to give the appellant a right to be relegated to the stage at which the suit was when the Court decided to proceed ex parte against him and it was not necessary to get the ex parte order set aside. The High Court failed to appreciate that the learned Subordinate Judge acted illegally and with material irregularity in decreeing the plaintiff’s suit for specific performance without affording to the appellant the opportunity of appearing and participating at the proceedings i.e. to cross-examine the plaintiff and his witnesses and if necessary, leading evidence in rebuttal. The law is clear on the subject. This Court interpreting the provision contained in Order IX, r. 7 of the Code of Civil Procedure, 1908 in Sangram Singh v. Election Tribunal, Kotah, bhurey Lal Baya (1955) 2 SCR 1 speaking through Vivian Bose, J. laid down that the Code is designed to facilitate justice and further its ends,and should not be treated as an enactment providing for punishments and penalties, and said;
“The laws of procedure are grounded on the principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Subject to clearly defind exceptions the laws of procedure should be construed, wherever reasonably possible, in the light of that principle.”
That very eminent Judge went on to add:
“The Court is invested with the widest possible discretion to see that justice is done to all concerned. No hard and fast rule can be laid down; and the Court in the exercise of its judicial discretion will have, in a given case, to determine what consequences are to follow from non-appearance.”
Dealing with Order IX, r.7 of the Code, he said that if a party is allowed to appear then, unless good cause is shown under Order IX, r.7 for earlier non-appearance, the proceedings must continue from the stage at whch the later appearance is entered, and the party so appearing cannot be relegated to the position he would have occupited if he had appeared at the earlier hearing or hearings i.e. he has no right to set back the hands of the clock. All that it means is that he must accept all that has gone before an be content to proceed from the stage at which he has come in. See also : Arjun Singh v. Mohindra Kumar & Ors. (1964) 5 SCR 946. In the present case, the appellant having failed to show good cause under Order IX, r.7 for the earlier non-appearance, the proceedings must continue from the stage at which the later appearance was entered and obviously, he could not be relegated to the position he would have occupied if he had appeared at the earlier hearing or hearings. But he certainly had the right of participating in the proceedings, to cross-examine the plaintiff or his witnesses and if necessary, to lead evidence in rebuttal. The failure of the learned Subordinate Judge to afford him an opportunity to do so virtually was tantamount to denial of justice.
3. Accordingly, the appeal succeeds and is allowed. The judgment and decree passed by the Subordinate Judge as well as those of the Additional District Judge and the order of the High Court declining to interfere as set aside. The learned Subordinate Judge shall now proceed to fix a date for the hearing of the suit and give the parties notice of the same, and shall decide the suit according to law. No costs.
