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Legal Representatives of Gusai Karan Giri v/s Legal Representatives of Ram Das

    Civil Revision Petition No. 535 of 1998

    Decided On, 27 August 1998

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE BHAGWATI PRASAD

    For the Appellant: R.K. Thanvi, Advocate. For the Respondent: M.C. Bhoot, Advocate.



Judgment Text

Bhagwati Prasad, J.

1. The present revision petition has been filed by the petitioners impugning the order of the learned Additional Civil Judge (Junior Division) No: 5, Jodhpur dated 5-5-1998. By the order impugned, the learned Additional Civil Judge had disposed of an application filed by the non-petitioners under Order 9, Rule 13 read with Section 151, C.P.C. By the impugned order the learned Additional Civil Judge has accepted the application under Order 9, Rule 13, C.P.C. and set aside the decree passed by the Court-on 31-10-1996.

2. The facts which stand out prominently in (his case are that the non-petitioners had been trying to avoid the decision of the s

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uit by asking for adjournments time and again and the Court has been refusing it, so much so that the ex parte proceedings were drawn against the non-petitioners due to their absence. The ex parte proceedings taken-against the non-petitioners were sought to be set aside by the non-petitioners but the Court refused to set aside the decree. However, the non-petitioners were permitted to participate in the proceedings in terms of the Code of Civil Procedure. During the course of transactions on 4-10-1996 the case was posted for final hearing on 14-10-1996. On 14-10-1996 the Presiding Officer was on leave and the case was adjourned by the Court Reader. The next date fixed was 29-10-1996 though there is an over-writing in the digit 'O' constituting 10'. On 29-10-1996 an application was presented by the counsel for the non-petitioners for adjournment. The arguments on the application were heard and the case was posted for 30-10-1996. There is an over-writing here also on digit 'O' which constitutes '10' in the digit frame. On 30-10-1996 the learned Court by a detailed order rejected application for adjournment and pronounced the order. On 30-10-1996 itself as a post-script the Presiding Officer wrote that the arguments of the counsel for the plaintiff-petitioners were heard and the case was posted for decision on 31-10-1996. On 31-10-1996 the suit was finally adjudicated and decreed by the learned trial Court.

3. An application under Order 9, Rule 13, C.P.C. was referred by the non-petitioners before the trial Court. The trial Court considered the arguments of both the parties and came to the conclusion that on 30-10-1996 the date was fixed for pronouncement of order on the application and on that day itself the arguments were heard and 31-10-1996 was fixed for judgment. The Court was further of the opinion that notwithstanding an ex parte order the non-petitioners were permitted to participate in the proceedings after 24-4-1996. Therefore, it was necessary to hear the arguments of the counsel for the non-petitioners but no date was fixed for hearing the arguments of the counsel for the non-petitioners. Further the learned Court has also noted that the counsel for the non-petitioners' affidavit shows that he had written in the diary 30-11-1996 as to be next date of hearing, on 29-10-1996 and, therefore, it cannot be presumed that there was any notice to the counsel for the non-petitioners for the date 30-10-1996 and in this background the Court was pleased to accept the application under Order 9, Rule 13, C.P.C.

4. Learned counsel for the petitioners in this revision petition has urged that the judgment and decree passed on 31-10-1996 cannot be considered to be an ex parte decree and since this decree could not have been treated as an ex parte decree, therefore, no application under Order 9, Rule 13, C.P.C. was maintainable. Learned counsel has further urged that the diary of the learned counsel for the non-petitioners has not been produced to show that he noted the date as 30-11 -1996. Learned counsel has further urged that a presumption deserves to be drawn u/s 114 of the Evidence Act against the non-petitioners because on 30-10-1996 the Court proceedings record that counsel for the parties are present and, therefore, it cannot be said that the non-petitioners had no notice,

5. Counsel for the non-petitioners has replied that the Court had not been forthright in drawing the proceedings. On 29-10-1996 the learned Court has recorded that the arguments on the application have been heard. Thus, if the arguments had already been heard on 29-10-1996 then recording by the learned Court that arguments were heard on 30-10-1996 is in contradiction to what has been recorded earlier. Further on that day the case w.as only posted for orders on the application. The case was not posted for final arguments on 30-10-1996 and it cannot be expected from the parties to finally argue the matter when the .case was not posted for final arguments. The learned trial Court has accepted the argument of the learned counsel for the non-petitioners that when the case was not fixed for final arguments on 30-10-1996 then it cannot be stated that the case was so fixed and in the post-script the Court proceeds to record that final arguments have been heard is per se an attempt, on the part of the learned trial Court, to pre-empt the non-petitioners' right and in this background the learned counsel for the non-petitioners urges that there is no illegality committed by the learned trial Court in allowing the application under Order 9, Rule 13, C.P.C.

6. I have heard learned counsel for the parties.

7. Though there appears to be a concerted efforts on the part of the non-petitioners to get the case adjourned by all means but that alone was not sufficient to give a reason to the trial Court to rush to decide the suit in the manner in which it has been done on 30th October, when the case was, listed for pronouncing of order on the application for adjournment only on that day. Even if, argument of the learned counsel for the petitioners is accepted that both the parties were present then too, further recording of the order-sheet show that the learned counsel for the plaintiffs alone were heard and there is no mention as to what happened to the arguments of the learned counsel for the defendants. It is not mentioned that learned counsel for the defendants has refused to argue the matter. This obviously leads to the only conclusion that learned counsel for the defendants was not offered any opportunity. In such circumstances, when the Statute gives an opportunity to a party to address the oral arguments then without hearing oral argument in the suit, no decision could have been rendered. I am constrained to observe that judgment of the trial Court is vitiated only on this count. All other observations may not be gone into and, therefore, the finding of the trial Court in reversing the decree cannot be interfered with in this revision petition. The revision petition is meritless. However, it is mentioned that trial Court will expedite hearing of the suit.

8. With these observations, the revision petition is dismissed.
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