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 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1545    OF 2019 [Arising out of S.L.P.(C) No.36394 of 2014]

A. Murugesan        ...Appellant

Versus

Smt. Jamuna Rani         ...Respondent

J U D G M E N T

R. SUBHASH REDDY,J.

1. Leave granted.

2. This civil appeal is preferred by the defendant, in

Original  Suit  No.  92/1997  on  the  file  of  Sub-Judge,

Chidambaram,  aggrieved  by  the  order  dated  17.04.2014,

passed  by  the  High  Court  of  Judicature  at  Madras,

dismissing the Civil Revision Petition (NPD) No. 1202 of

2014. By virtue of the aforesaid order, the High Court has

confirmed the order of the Trial Court, dismissing the

application filed by the petitioner, under Order IX Rule

13 of CPC.

3. The respondent-plaintiff has filed the aforesaid suit

for  specific  performance  of  the  Agreement  dated

11.10.1995. It is a case of the respondent-plaintiff that

out of total consideration of Rs.3,00,000/-(Rupees Three

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Lakhs), he has already paid Rs.2,25,000/-(Rupees Two Lakh

Twenty-Five Thousand) and in spite of his readiness to pay

the balance amount, the appellant-defendant is not ready

to  execute  the  sale  deed  by  receiving  the  balance

consideration amount. During the trial, the aforesaid suit

was listed for hearing on 16.03.2009. On the aforesaid

date, on the ground that there was no representation on

behalf of the appellant, the appellant was put ex-parte,

and ex-parte decree was passed, decreeing the suit.

4. The  appellant-defendant  has  filed  the  application

under  Order  IX  Rule  13  of  CPC,  for  setting  aside  the

ex-parte decree in I.A. No. 117/2009. In the aforesaid

application,  the  case  of  the  appellant  was  that  on

16.03.2009, there was a boycott of all the courts on the

call  of  Bar  Association,  as  such,  all  the  advocates

boycotted  the  courts  in  the  District  of  Cuddalore

including Chidambaram District. He has also pleaded that

as he was suffering from viral fever, he also did not

attend the court. It is a case of the appellant that in

spite of showing sufficient cause for not attending the

court  on  16.03.2009,  the  Trial  Court  has  erroneously

rejected the application filed under Order IX Rule 13 of

CPC.

5. The Trial Court, while considering the application

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filed by the appellant herein, under Order IX Rule 13 of

CPC, has considered the past events in the suit stating

that the appellant is trying to protract the litigation

dismissed  the  application  by  order  dated  30.06.2009.

Aggrieved by the said order, the appellant-defendant has

filed Civil Miscellaneous Appeal No. 15/2009 before the

Additional  District  Court/Fast  Track  Court  No.1,

Chidambaram. Same was dismissed by order dated 13.07.2010.

The matter was further carried by way of Civil Revision

Petition No. 1202 of 2014 before the High Court, which

also ended in dismissal by order dated 17.04.2014.

6. We have heard the learned counsel for the appellant

as  well  as  the  learned  counsel  for  the  respondent  and

perused the relevant material on record.

7. Mainly it is contended by learned counsel appearing

for the appellant that on 16.03.2009, there was a total

boycott  of  courts  by  the  advocates  in  the  District  of

Cuddalore including Chidambaram District, therefore, his

counsel could not appear before the Court when the matter

was  called.  Further,  it  is  submitted  that  even  the

appellant was suffering from viral fever, as such, he also

could not appear on the said date. It is pleaded that

though there was sufficient cause shown, the Trial Court,

erroneously  by  considering  the  past  events  anterior  to

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16.03.2009, has dismissed the application. It is contended

that  the  appellate  and  the  revisional  courts  also

committed  same  error  in  rejecting  the  plea  of  the

appellant  by  looking  at  the  past  events.  It  is  mainly

contended that when the application is filed under Order

IX Rule 13 of CPC, the relevant consideration should have

been confined to whether the appellant herein has shown

any  sufficient  cause  or  not  for  not  appearing  in  the

matter when it was called on 16.03.2009. It is submitted

that  the  reasons  assigned  in  the  impugned  orders  for

rejection of the application is irrelevant. In support of

his argument, learned counsel for the appellant has placed

reliance on the judgment of this Court in the case of G.P.

Srivastava vs. R.K. Raizada and Others reported in 2000(3)

SCC 54.

8. On the other hand, it is contended by the learned

counsel  for  the  respondent  that  suit  was  filed  by  the

respondent for specific performance of the contract.

9. It is submitted that out of total consideration of

Rs.3,00,000/-(Rupees  Three  Lakhs),  he  has  already  paid

Rs.2,25,000/-(Rupees  Two  Lakh  Twenty-Five  Thousand)  and

deposited  the  balance  amount  of  Rs.75,000/-(Rupees

Seventy-Five Thousand) in the court. It is contended by

the learned counsel for the respondent that though the

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suit was of the year 1997, the appellant-defendant tried

his best to prolong the litigation on one pretext or the

other.  It  is  submitted  that  in  view  of  the  concurrent

findings recorded by the courts below, no case is made out

to interfere with the same.

10. We  have  considered  the  submissions  of  the  learned

counsel appearing on both the sides and perused the order

of the Trial Court, rejecting the application filed by the

appellant under Order IX Rule 13 of CPC and further orders

passed in Civil Miscellaneous Appeal as well as in Civil

Revision Petition.

11. From a perusal of the order of the Trial Court, it is

clear that the Trial Court has taken into consideration

the past conduct of the appellant-defendant in the suit,

instead of confining the consideration as to whether the

appellant  has  shown  sufficient  cause  or  not  for  not

appearing in the matter on 16.03.2009. It is fairly well

settled  that  when  an  application  is  filed  for  setting

aside ex-parte decree under Order IX Rule 13 of CPC, the

only aspect which is required to be considered is whether

any sufficient cause is shown for absence in the matter

when the matter was called. Without recording the specific

finding,  on  the  plea  of  the  appellant  that  there  was

sufficient cause, the Trial Court has committed error in

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rejecting the application under Order IX Rule 13 of CPC.

Even  the  appellate  and  the  revisional  court  have  not

considered the matter in proper perspective and rejected

the claim of the appellant. The judgment in a case of G.P.

Srivastava (supra) supports the case of the appellant. In

the  aforesaid  judgment,  the  very  issue  was  fallen  for

consideration  before  this  Court.  The  relevant  paragraph

no.7 reads as under:

“7. Under  Order  IX  Rule  13  CPC  an  ex  parte decree passed against a defendant can be set aside  upon  satisfaction  of  the  Court  that either the summons were not duly served upon the  defendant  or  he  was  prevented  by  any “sufficient cause” from appearing when the suit was called on for hearing.  Unless “sufficient cause”  is  shown  for  non-appearance  of  the defendant in the case on the date of hearing, the Court has no power to aside an ex parte decree.   The  words  “was  prevented  by  any sufficient  cause  from  appearing”  must  be liberally construed to enable the court to do complete  justice  between  the  parties particularly when no negligence or inaction is imputable  to  the  erring  party.   Sufficient cause for the purpose of Order IX rule 13 has to be construed as an elastic expression for which  no  hard  and  fast  guidelines  can  be prescribed.  The courts have a wide discretion in  deciding  the  sufficient  cause  keeping  in view the peculiar facts and circumstances of each  case   The  “sufficient  cause”  for  non- appearance  refers  to  the  date  on  which  the absence was made a ground for proceeding ex parte  and  cannot  be  stretched  to  rely  upon other  circumstances  anterior  in  time.   If “sufficient  cause”  is  made  out  for  non- appearance of the defendant on the date fixed for  hearing  when  ex  pate  proceedings  were initiated against him, he cannot be penalised for  his  previous  negligence  which  had  been overlooked and thereby condoned earlier.  In a case where the defendant approaches the court immediately  and  within  the  statutory  time

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specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional.  For the absence of a party  in  the  case  the  other  side  can  be compensated  by  adequate  costs  and  the  lis decided on merits.

12. The aforesaid view taken by this Court in the judgment

referred  above  supports  the  case  of  the  appellant.  It  is

further brought to our notice that on the aforesaid date, i.e.,

16.03.2009, on which date the suit was listed for trial, in

view of the boycott of the courts by the advocates, all other

cases were adjourned and only this case was proceeded and ex-

parte decree was passed.

13. As the suit is for a substantive relief, i.e., for grant

of decree of specific performance, and further we are satisfied

that the appellant has shown sufficient cause for not appearing

in the matter when the matter was called on 16.03.2009, we are

of the view that it is a fit case to allow the application

filed by the appellant, by setting aside the impugned orders.

All  the  courts  below  committed  error  in  rejecting  the

application on the grounds which are not relevant to consider

the application filed under Order IX Rule 13 of CPC.

14. We are conscious of the fact that all the three courts

have held against the appellant, but if we allow the impugned

orders to stand, it will result in miscarriage of justice.

15. For the aforesaid reasons, the impugned orders are set

aside, consequently I.A. No.117/2009 filed in O.S. No.92 of

1997  on  the  file  of  Sub-Judge,  Chidambaram,  stands

allowed.

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16. As the suit is of the year 1997, we direct the Trial

Court to dispose of the same as expeditiously as possible

preferably within a period of six months from today. Both

the parties shall co-operate for proceeding with the trial

and for expeditious disposal in the suit.

17. It is also made clear that we have not expressed any

opinion on the merits of the matter. It is open for the

Trial  Court  to  decide  the  issues  for  consideration

independently,  uninfluenced  by  any  of  the  observations

made in the impugned order or the order passed by this

Court.

18. This appeal is, accordingly, allowed, with directions

as indicated above. No order as to costs.

.................... J. [R. Banumathi]

.................... J. [R. Subhash Reddy]

New Delhi; February 07, 2019