This appeal is directed against an ex parte decree dated 20th April, 2015 passed in CS No.215 of 2002. At the time of admission of the appeal, the appellant was directed to secure the entire decretal dues. The decretal dues are now secured. Of the various grounds taken in the Memorandum of Appeal, the principal point argued on behalf of the appellant is that there has been a violation of the principle of natural justice. It is submitted that the learned Single Judge had once dismissed the suit due to the inability of the learned counsel representing the plaintiff to proceed with the suit, and after having restored the suit, an opportunity should have been given to the defendant to cross examine of the plaintiff's witness and to lead evidence, which was denied by the learned Single Judge in the order dismissing the suit for inability on the part of the counsel for the plaintiff to proceed with the suit.
Please Login To View The Full Judgment!
The learned counsel has not addressed us on the merits of the decree.
The prayer for setting aside of the decree is opposed by the plaintiff. Mr. S.P. Sarkar, learned senior counsel appearing on behalf of the plaintiff has submitted that the suit was filed in the year 2002, and in 2015 the decree was passed. The defendant was negligent in conducting the suit. The order for restoration of the suit was upon notice to the defendant. The bank had due notice that the suit was restored. Even thereafter the defendant did not take any steps to appear at the hearing of the suit. The injured innocence as sought to be portrayed by the appellant is misplaced and no indulgence should be shown to the appellant. Mr. Sarkar has also relied upon three decisions, namely, (i) Laxmibai vs. Keshrimal Jain reported at 1995 M.P.L.J 105 (ii) Bhanu Kumar Jain vs. Archana Kumar and Anotherreported at (2005) 1 Supreme Court Cases 787 and (iii) Neerja Realtors Private Limited vs. Janglu (Dead) Through Legal Representative reported at (2018) 2 Supreme Court Cases 649, for the proposition that once the plaintiff has decided to prefer an appeal against the ex parte decree, the appellant has to substantiate that the decree is liable to be set aside not on the grounds available under Order 9 Rule 13 of the Code of Civil Procedure but on merits.
We have heard the parties at length. We have perused the grounds of appeal. The ground nos.I and II appeal to us. The said grounds are:
"I. For that the Hon'ble Trial Court has fallen in serious error in holding that the defendant (Appellant) did not contest the suit in spite of notice by the plaintiff inasmuch the Hon'ble Trial Court has failed to appreciate that the order dated March 27, 2015 whereby the suit was restored to file reveals that the learned Advocate who had been engaged by the Appellant Bank had retired from the matter prior to the date of restoration meaning thereby that there was no representation of the Appellant before the Hon'ble Court on that day and no communication/notice as to the restoration of the suit was ever given to the defendant/appellant. II. For that the Hon'ble Trial Court has fallen to appreciate that when on the day on which the suit was restored to file, there was virtually no representation on behalf of the Appellant Bank, in view of the fact that the learned advocate engaged by the Appellant Bank informed the Hon'ble Court that he had retired from the matter and the Hon'ble Court permitted him to retire, it became incumbent upon the Hon'ble Trial Court to issue notice upon the defendant/appellant informing it about the restoration of the suit."
Before we advert to decisions cited by Mr. Sarkar, we may refer to the two orders that have fallen for consideration. On 27th February, 2015, the suit was dismissed on the ground that the learned counsel for the plaintiff was unable to address the Court on merits. By the said order, the evidence of the plaintiff was closed as the defendant was not present and naturally not in a position to produce any evidence. The evidence of the defendant was also closed. The plaintiff thereafter filed an application for restoration of the suit. The suit was restored after recording that the learned counsel for the defendant had prayed for retirement from the matter and he had communicated his decision to the defendant bank. The learned counsel was granted leave to retire. The suit was restored with a direction that the suit would appear in the monthly list of April, 2015.
Two things, we find, could have been followed by the learned Single Judge in the facts and circumstances of the case. Ordinarily, it is a duty of the Court to allow the parties to adduce evidence as it is necessary that in a contested hearing the Court would have the benefit of the evidence of both sides. There is no recording in the order dated 27th February, 2015 that the defendant was negligent in conducting the matter. There could be many reasons for which the defendant could not be represented. The defendant had filed the affidavit of documents and had disclosed its evidence. The decision to close evidence abruptly without giving an opportunity to the defendant to cross examine the plaintiff's witness on a future date, which could have been a short date, in our view, would be a violation of the principle of natural justice. Moreover, when the fact remains that the suit was dismissed due to the inability of the plaintiff to proceed with the suit after the suit having been restored, we feel that the learned Single Judge ought to have given opportunity to the defendant on the date fixed for hearing of the suit to cross examine the witness of the plaintiff and to lead any evidence by the defendant in the suit, if it so desired. The order by which the suit was restored appears to have not been communicated to the defendant. The defendant, in our view, should have been given opportunity to cross examine the plaintiff's witness on the date fixed and allowed to lead evidence if they so desired. Of the three judgments cited by Mr. Sarkar, in the recent decision in Neerja Realtors Private Limited vs. Janglu (Dead) Through Legal Representative reported at (2018) 2 Supreme Court Cases 649 in paragraph 16, the three Judges Bench of the Hon'ble Supreme Court has quoted with approval the observation of three Judges Bench decision in Bhanu Kumar Jain v. Archana Kumar. The said paragraph reads:
"16. In Bhanu Kumar Jain v. Archana Kumar, a Bench of three Judges of this Court has held that:
"24. An appeal against an ex parte decree in terms of Section 96(2) of the Code could be filed on the following grounds:
(i) the materials on record brought on record in the ex parte proceedings in the suit by the plaintiff would not entailed a decree in his favour; and
(ii) the suit could not have been posted for ex parte hearing."
On interpretation of Section 96 of the Code of Civil Procedure, it appears that the three Judges of the Hon'ble Supreme Court have held that one of the grounds on which an ex parte decree could be challenged is where a ground is taken by the appellant that the suit could not have been posted for ex parte hearing.
From the discussion made above, we are of the view that the suit could not have been posted for ex parte hearing in absence of any notice to the defendant, which has not been done by the learned Single Judge while restoring the suit. In fact, no prejudice would have been caused to the plaintiff as the suit was otherwise dismissed by the learned Single Judge due to the inability of the plaintiff to proceed with the suit.
On such considerations, we set aside the impugned judgment. We request the learned Single Judge to proceed with the hearing of the suit from the stage of giving an opportunity to the defendant to cross examine the plaintiff's witness and to lead any evidence in support of the defendant's case if they so desire. In view of the fact that the suit is pending for long, we request the learned Single Judge to pass peremptory direction with regard to the hearing of the suit and in the event the defendant fails to comply with such direction, it would be open for the learned Single Judge to proceed with the hearing of the suit ex parte and pronounce the same decree. We also feel that the plaintiff should be compensated for the negligent conduct of the defendant. The respondent is not a rustic villager and it is a jurisdistic entity. The bank should have been more cautious in proceeding with the suit.
Accordingly, we assess costs at Rs. 1 lakh to be paid by the defendant to the plaintiff within four weeks from date. In default, the ex parte decree shall revive.
The appellant shall replace the bank guarantee with a cash security for the decretal amount payable with the Registrar, High Court, Original Side within four weeks from date. Till such time, the bank guarantee shall continue. In default, the ex parte decree shall immediately revive.
The Registrar, High Court, Original Side shall invest the said amount in a suitable fixed deposit account yielding highest return till the disposal of the suit.
The appeal is disposed of.
The additional paper books filed by the respondent and the supplementary paper books filed by the appellant are taken on record