Case Note & Summary
The dispute arose from eviction proceedings. One Ishwar Das Gajbi filed Civil Suit No. 89 of 1985 after Civil Suit No. 82 of 1983 for eviction of the appellants was filed. The appellants were defendants in these suits and were in actual possession of the suit property. On February 20, 1992, when the suits were part-heard, the appellants' counsel reported no instructions under exhibit 116, and the appellants were set ex-parte. They then filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 to set aside the ex-parte order. The trial court dismissed the application on April 27, 1992, and the High Court of Bombay, Nagpur Bench confirmed the dismissal on March 10, 1993, in C.R.A. No. 572 of 1992. The appellants then approached the Supreme Court by special leave. The appellants argued before the Supreme Court that they had been diligent in prosecuting the suits, that their counsel had wrongly reported no instructions, that there was no delay on their part, and that they had a strong case on merits. They contended that they were entitled to be heard by setting aside the ex-parte order. The Court considered whether the appellants had given a proper explanation for their failure to appear on February 20, 1992. The Court noted that no material was placed on record either in the trial court, the High Court, or the Supreme Court to show that the appellants were diligently prosecuting the suits. On the contrary, the trial court had recorded that the appellants, being in actual possession of the suit property, were intending to prolong the matter, that there was no bona fides or genuineness for their non-appearance, and that the defendants had indulged in protracting the suit, which had been filed in 1983 and had made no progress for about nine years. The trial court further observed that the suit had been part-heard for more than three years and that the defendants could not be allowed to take advantage of their own wrong. The High Court, having exercised its discretion, was not inclined to interfere under Section 115 of the Code of Civil Procedure, 1908. The Supreme Court then examined whether it was a fit case to interfere under Article 136 of the Constitution of India. In view of the categorical findings recorded by the trial court and confirmed by the High Court, the Supreme Court held that it was not an appropriate case to interdict and put the clock back to further prolong the matter. The appeal was accordingly dismissed with no order as to costs.
Headnote
A) Civil Procedure - Setting Aside Ex-Parte Order - Order 9 Rule 13, Code of Civil Procedure, 1908 - Court must be satisfied that defendant had sufficient cause for non-appearance and was diligent; delay caused by defendants themselves is not condonable - Trial court found no explanation, defendants in actual possession intended to prolong suit, and no bona fides; application to set aside ex-parte order was rejected - Held that concurrent findings of trial court and High Court on lack of diligence preclude interference B) Constitutional Law - Special Leave Petition - Article 136, Constitution of India - Supreme Court does not exercise discretion in routine matters where lower courts have given categorical findings on factual issues - Scope of Article 136 is exceptional; not meant to reopen delay caused by party's own conduct - Held that no fit case to interdict and put clock back
Issue of Consideration
Whether the appellants gave proper explanation for their failure to appear on February 20, 1992 and whether the ex-parte order should be set aside under Order 9 Rule 13 CPC; whether the Supreme Court should interfere under Article 136 of the Constitution
Final Decision
The appeal was dismissed with no order as to costs. The Supreme Court declined to interfere under Article 136, holding that the categorical findings of the trial court and the High Court did not warrant putting the clock back.
Law Points
- Application under Order 9 Rule 13 CPC requires sufficient cause for non-appearance and due diligence
- courts may refuse to set aside ex-parte order if party intentionally delays
- Supreme Court under Article 136 does not interfere with concurrent findings of lower courts on factual issues absent perversity or material irregularity
