Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 97 OF 1996
WITH
CIVIL APPLICATION NO. 5320 OF 1996
1 M/s. Regal Talkies,
Partnership Firm,
C/o. Sk. Saleem s/o Sk. Chand,
R/o. H. No.1-15-65, Deodi Bazar,
Aurangabad
2 Sk. Saleem s/o Sk. Chand,
Age 28 years, Occ. Business,
Partner Regal/Roxy Talkies,
R/o. H. No.1-15-65, Deodi Bazar,
Aurangabad
3 Smt. Hasinabai w/o Sk. Chand,
Age major, Occ. And R/o. As above
4 Smt. Umraobi w/o Sk. Rahim
Age major, Occ. And R/o. As above
5 Sk. Jawed s/o SK. Chand,
Age 12 years, Occ. Minor
u/g Smt. Hasinabi w/o S. Chand
Appellant No.3
R/o. As above ...Appellants
Versus
State Bank of India,
A corporation constituted under the
State Bank of India Act, 1955,
having one of its Branches at Aurangabad
Through its Branch Manager,
Shri Nandlal G. Khandelwal,
at Kranti Chowk, Aurangabad ...Respondent
.....
Mr. K.S. Naik, advocate for the appellant
Mr. V. D. Patnoorkar, advocate for respondent
.....
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CORAM: S. S. SHINDE, J.
DATED : 23RD SEPTEMBER, 2010
ORAL JUDGMENT:-
1 This appeal From Order is filed being aggrieved by the
judgment and order dated 30.9.1996 passed by the learned IInd Jt.
C.J.S.D. Aurangabad in MARJI No. 21 of 1995 in Special Civil Suit No.
181 of 1992, thereby rejecting the application of the appellant for
cancellation of exparte decree passed in the said suit.
2 The respondent herein filed Special Civil suit No. 181 of 1992 in
the Court of learned C.J.S.D. Aurangabad, against the appellants
herein. The appellants did not file written statement in the said suit.
The suit was posted for hearing on 13.12.1994. Shaikh Omarbi w/o Sk.
Rahim, grand-mother of the appellant No.2 herein Shaikh Salim was ill
and the appellant No.2 and other members had to look after her
health. The advocate for the appellants, who are original defendants
moved an application before the Court contending his inability to
conduct the case on 13.12.1994 because has was to go out of station
on personal ground. After filing application for adjournment, the suit
was taken up for hearing and was decreed on the same day.
Adjournment application was rejected and without passing exparte
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order, the judgment and decree came to be passed in the said suit.
On the adjournment application, the Court observed that the
defendants have not put their written statement and they were absent
when called. According to the appellants, the decree passed by the
court below is exparte decree. The said decree came to be passed on
13.12.1994.
3 The appellants herein filed MARJI No. 21 of 1995 under Oder IX
Rule 13 of C.P.C. for cancellation of exparte decree. It is stated in the
said application in para 2 that written statement was not filed on behalf
of the original defendants since there was talk of compromise in oder
to finalize the same, the negotiations were going on between the
parties but those negotiations could not be materialized. It is further
stated in the application that on the date of hearing i.e. on 13.12.1994,
case was posted for hearing. Apart from the fact that grand mother of
the appellant No.2 was ill and the appellant No.2 and other members
had to look after her health as she was a quite old lady. It was
mentioned in the application that medical certificate in support thereof
would be filed afterwards. In para 4, it is further stated that there was
urgent message from native place of the advocate for the appellant,
therefore, it was not feasible for him to conduct the case on
13.12.1994, and an application was filed by him before IInd Joint
C.J.S.D. Aurangabad that he would not be in a position to remain
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present at the time when the case would be taken up for hearing. It
was specifically stated that he is leaving Aurangabad and going out of
station on personal ground.
In para 5 of the application, it is further stated that after
departure of the advocate for the appellants and after filing application
for adjournment, case was taken up for hearing before the court and
decree came to be passed exparte. It is further stated in para 6 that
the decree passed by the court below is in absence of the defendants
and their advocate, therefore, the said decree was exparte, however,
the court did not mention in its judgment and order that it is exparte
decree. Therefore, the exparte decree is not maintainable on several
grounds and hence, the appellants prayed that exparte decree may be
quashed and set aside. Affidavit was filed in support of the said
application by the appellants. There was prayer in the application that
judgment and exparte decree passed against the defendants may be
ordered to be set aside and the appellants-defendants my be
permitted to conduct the case before the IInd Joint C.J.S.D.
Aurangabad.
4 On the said application, the respondents herein filed their say
and denied the contentions raised in the application filed by the
appellants. According to the respondents, the defendants failed to file
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written statement in spite of taking number of adjournments to file the
same. The matter was posted for evidence without written statement
with due notice and knowledge of the defendants as well as their
advocate. The defendants failed to take part in the proceedings and
did not examine the witnesses. The matter was decided on merits
taking into consideration the documentary and oral evidence led by the
parties. Therefore, decree passed by the court below is not exparte but
the same is passed on merits.
5 Learned IInd Joint C.J.S.D. Aurangabad finally decided MARJI
No. 21 of 1995 by his judgment and order dated 30.9.1996 mainly on
two grounds. Firstly, on the ground of non filing of written statement
by the appellants i.e. original defendants and secondly, decree is not
an exparte decree and as such application to set aside such judgment
does not lie under Order IX Rule 13 of C.P.C. therefore, application
filed on behalf of the appellants came to be rejected.
6 Learned counsel appearing for the appellants submitted that
decree passed by the court below was in fact in absence of written
statement filed on behalf of the defendants. It is further submitted that
the matter was posted for hearing when defendants themselves or
their advocate was not present on the date of hearing and therefore,
decree passed by the Court below was exparte decree and therefore,
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the application filed by the original defendants for setting aside the
decree under Order IV Rule 13 was maintainable. Learned counsel
invited my attention to the grounds taken in the appeal memo and
submitted that the lower court should not have rejected the application
on the ground that the said application is not maintainable under Order
IX Rule 13 of C.P.C.
7 Learned counsel appearing for the respondents invited my
attention to the findings recorded by the court below while rejecting the
application. Learned counsel for the respondents placed reliance on
the judgment of this Court in the case of Laxman Jhingraji Adhav
Vs. Sushila Jhingraji reported in 1996 B.H.C.C. 124 and submitted
that if the court has passed decree against the defendants on their
failure to file written statement it is not an exparte decree. Learned
counsel further submitted that after all decree passed by the court
below is a money decree. The loan amount was borrowed by the
appellants from the respondent Bank and even principal amount is not
repaid by the appellants. Therefore, if this appeal is allowed, which
would cause great hardship to the respondent. It is further submitted
that the because of absence of the appellants i.e. original defendants
and their advocate on the date of hearing, the decree came to be
passed and the respondents are unnecessarily being dragged in the
litigation by the appellants, therefore, they are entitled at least for
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some costs.
8 I have given due consideration to the submissions advanced on
behalf of the appellants as well as the respondent. It is not in dispute
that on the date of hearing, counsel for the defendants or the
defendants themselves were not present before the court. It is also
admitted position that an application for adjournment was filed by the
advocate for original defendants. It has also come on record that
advocate for defendants left the court due to his personal difficulty
before the case was taken up for hearing. On reading the impugned
order, it clearly emerges that the application for setting aside the
judgment and decree passed by the court below in MARJI No. 21 of
1995 is rejected by IInd Joint C.J.S.D. Aurangabad holding that since
the decree passed in Special Civil Suit No. 281 of 1992 is not exparte
decree and as such the application to set aside the said judgment and
decree does not lie under Order IX Rule 13 of C.P.C.
9 I have given due consideration to the rival submissions
advanced on behalf of the parties. I have also carefully perused the
provisions of Order IX Rule 13 of C.P.C. In case of Prakash Chander
Manchandan and another, reported in AIR 1987 SC 42 is held that if
on the date fixed, one of the parties to the suit remain absent and for
that party no evidence has been led up to that date, the Court has no
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option but to proceed to dispose of the matter in accordance with
Order XVII Rule 2 in any one of the modes prescribed under Order IX
of C.P.C. After the Amendment by Act 104 of 1976 to Order XVII Rr. 2
and 3 in cases where a party is absent only course is as mentioned in
Order XVII Rule 3(b) to proceed under Rule 2. Therefore, in absence
of the defendant, the Court had no option but to proceed under R. 2.
Similarly, the language of Rule 2, as now stands, also clearly lays
down that if any one of the parties fails to appear, the court has to
proceed to dispose of the suit in one of the modes directed under O. 9.
The explanation to Rule 2 gives a discretion to the court to proceed
under Rule 3 even if a party is absent but that discretion is limited only
in cases where a party which is absent has led some evidence or has
examined substantial part of their evidence.
In para 7 and 8, it is further held that in such a case, the Court
cannot proceed to dispose of the suit on merits and after it proceeds to
dispose of the suit in any one of the modes provided under Order IX in
the present case to pass ex-parte decree, the defendant can
subsequently file an application under Order IX Rule 13 for setting
aside ex parte decree (emphasis supplied).
10 Taking into consideration the aforesaid judgment of the Hon’ble
Supreme Court in the case of Prakash Chander Manchanda and
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Anr. (supra), this Court in the case of Trimurthy Packing Paper Vs.
Corporation Bank and others, in para 8 held that since the suit in
that case has been disposed of by resorting to any of the modes
prescribed in Order IX of C.P.C. In the light of the Apex Court
judgment in the case of Prakash Chander Manchanda and Anr.
(supra), application under Order IX Rule 13 of C.P.C. would be
maintainable for setting aside the exparte decree.
Yet in another reported judgment of this Court in the case of
Balu @ Madhavrao Shankarrao Ghorpade since deceased by his
LRs, Ajay Madhavrao Ghorpade and others. Vs. Radhakkabai
Panditrao Ghorpade and others, reported in 2004(1) Mh.L.J. 323
held that the application for setting aside exparte decree under Order
IX Rule 13 is maintainable if the defendant did not appear on the date
of hearing and no evidence was led on behalf of the defendant. The
judgment and decree passed by the court on uncontroverted evidence
of the plaintiff would be exparte and not an order on merits. In that
case also written statement was filed by the defendant in the suit.
The Hon’ble Supreme Court in the case of Mahesh Yadav and
another Vs. Rajeshwar Singh and others, reported in (2009) 2
SCC 205, held that the application for setting aside exparte decree is
maintainable under Order IX Rule 13 of C.P.C. In that case also, the
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original defendant who was petitioner before the Hon’ble Supreme
Court, did file written statement.
11 Therefore, from perusal of the judgments of the Apex Court and
this Court, it follows that if the defendant did not appear on the date of
hearing and no evidence was led on behalf of the defendant, the
judgment and decree passed by the court on uncontroverted evidence
of plaintiff would be exparte and not an order on merits. It is
undisputed position that the date which was fixed for hearing neither
defendants nor the advocate for the defendants were present before
the court. Therefore, the trial court was not correct in holding that the
decree which came to be passed on 13.12.1994 in Special Civil suit
No. 181 of 1992 was not exparte decree, therefore, in the light of the
judgment of the Hon’ble Supreme Court in the case of Prakash
Chander Manchanda and another (supra) the case of the appellant
is required to be accepted.
12 It is an admitted position that no written statement was filed by
the appellants herein in the suit. It is also admitted position that no
evidence was led on behalf of the defendants in the suit. On the date
of hearing neither the defendants nor their advocate was present
before the Court and therefore, in the light of law laid down by the
Hon’ble Supreme Court and also by this Court, the decree which was
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passed by the IInd Joint C.J.S.D. Aurangabad was exparte decree and
therefore, application under Order IX Rule 13 was maintainable.
13 Though the counsel for the respondent Bank has justifiably
argued that the appellant should be directed to deposit the decreetal
amount, however, in my opinion, the said prayer is beyond the scope
of present Appeal From Order and thus the same cannot be
entertained. However, learned counsel for the respondent is justified in
asking costs from the appellants for dragging the respondent Bank into
further litigation for their fault in not causing appearance on the date of
hearing before the Court below. I am of the opinion that exparte
decree came to be passed merely because the advocate for the
defendants or for that matter the defendants themselves did not attend
the hearing or participating in the proceeding before the Court below.
That apart, it is an admitted position that the appellants have borrowed
money from the respondent Bank. The Substantial amount of money
has been borrowed by the appellants from the Bank. In this view of
the matter, I am of the opinion that the respondents are justified in
arguing that some amount towards expenses incurred for litigation and
engaging advocate may be awarded to the respondent Bank.
Therefore, I am of the opinion that the appellants shall pay Rs.10,000/-
to the respondent Bank.
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14 In this view of the matter, the impugned order dated 30.9.1996,
passed below Exh.23 by the learned IInd Joint C.J.S.D. Aurangabad in
MARJI No. 21 of 1995 is quashed and set aside. The MARJI No. 21 of
1995 is restored to its original position. It is clarified that the said
application under Order IX Rule 13 is maintainable. The concerned
court to hear and decide the said application on merits in accordance
with law, within a period of two months from the date of receipt of the
copy of this order. The appellants herein to pay Rs.10,000/- (Rupees
Ten thousand only) to the respondent herein within one month from
today.
15 Needless to mention that all contentions, which are to be
agitated, on merits, are kept open, during the course of hearing of the
application for setting aside the exparte decree.
16 The original record, if any, be sent back forthwith to the
concerned Court.
17 Copy of this order be transmitted to the concerned court
forthwith.
18 In the aforesaid circumstances, nothing remains to be decided in
the civil application, thus the civil application No. 5320 of 1996 stands
disposed of accordingly.
*
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 97 OF 1996
WITH
CIVIL APPLICATION NO. 5320 OF 1996
1 M/s. Regal Talkies,
Partnership Firm,
C/o. Sk. Saleem s/o Sk. Chand,
R/o. H. No.1-15-65, Deodi Bazar,
Aurangabad
2 Sk. Saleem s/o Sk. Chand,
Age 28 years, Occ. Business,
Partner Regal/Roxy Talkies,
R/o. H. No.1-15-65, Deodi Bazar,
Aurangabad
3 Smt. Hasinabai w/o Sk. Chand,
Age major, Occ. And R/o. As above
4 Smt. Umraobi w/o Sk. Rahim
Age major, Occ. And R/o. As above
5 Sk. Jawed s/o SK. Chand,
Age 12 years, Occ. Minor
u/g Smt. Hasinabi w/o S. Chand
Appellant No.3
R/o. As above ...Appellants
Versus
State Bank of India,
A corporation constituted under the
State Bank of India Act, 1955,
having one of its Branches at Aurangabad
Through its Branch Manager,
Shri Nandlal G. Khandelwal,
at Kranti Chowk, Aurangabad ...Respondent
.....
Mr. K.S. Naik, advocate for the appellant
Mr. V. D. Patnoorkar, advocate for respondent
.....
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CORAM: S. S. SHINDE, J.
DATED : 23RD SEPTEMBER, 2010
ORAL JUDGMENT:-
1 This appeal From Order is filed being aggrieved by the
judgment and order dated 30.9.1996 passed by the learned IInd Jt.
C.J.S.D. Aurangabad in MARJI No. 21 of 1995 in Special Civil Suit No.
181 of 1992, thereby rejecting the application of the appellant for
cancellation of exparte decree passed in the said suit.
2 The respondent herein filed Special Civil suit No. 181 of 1992 in
the Court of learned C.J.S.D. Aurangabad, against the appellants
herein. The appellants did not file written statement in the said suit.
The suit was posted for hearing on 13.12.1994. Shaikh Omarbi w/o Sk.
Rahim, grand-mother of the appellant No.2 herein Shaikh Salim was ill
and the appellant No.2 and other members had to look after her
health. The advocate for the appellants, who are original defendants
moved an application before the Court contending his inability to
conduct the case on 13.12.1994 because has was to go out of station
on personal ground. After filing application for adjournment, the suit
was taken up for hearing and was decreed on the same day.
Adjournment application was rejected and without passing exparte
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3
order, the judgment and decree came to be passed in the said suit.
On the adjournment application, the Court observed that the
defendants have not put their written statement and they were absent
when called. According to the appellants, the decree passed by the
court below is exparte decree. The said decree came to be passed on
13.12.1994.
3 The appellants herein filed MARJI No. 21 of 1995 under Oder IX
Rule 13 of C.P.C. for cancellation of exparte decree. It is stated in the
said application in para 2 that written statement was not filed on behalf
of the original defendants since there was talk of compromise in oder
to finalize the same, the negotiations were going on between the
parties but those negotiations could not be materialized. It is further
stated in the application that on the date of hearing i.e. on 13.12.1994,
case was posted for hearing. Apart from the fact that grand mother of
the appellant No.2 was ill and the appellant No.2 and other members
had to look after her health as she was a quite old lady. It was
mentioned in the application that medical certificate in support thereof
would be filed afterwards. In para 4, it is further stated that there was
urgent message from native place of the advocate for the appellant,
therefore, it was not feasible for him to conduct the case on
13.12.1994, and an application was filed by him before IInd Joint
C.J.S.D. Aurangabad that he would not be in a position to remain
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present at the time when the case would be taken up for hearing. It
was specifically stated that he is leaving Aurangabad and going out of
station on personal ground.
In para 5 of the application, it is further stated that after
departure of the advocate for the appellants and after filing application
for adjournment, case was taken up for hearing before the court and
decree came to be passed exparte. It is further stated in para 6 that
the decree passed by the court below is in absence of the defendants
and their advocate, therefore, the said decree was exparte, however,
the court did not mention in its judgment and order that it is exparte
decree. Therefore, the exparte decree is not maintainable on several
grounds and hence, the appellants prayed that exparte decree may be
quashed and set aside. Affidavit was filed in support of the said
application by the appellants. There was prayer in the application that
judgment and exparte decree passed against the defendants may be
ordered to be set aside and the appellants-defendants my be
permitted to conduct the case before the IInd Joint C.J.S.D.
Aurangabad.
4 On the said application, the respondents herein filed their say
and denied the contentions raised in the application filed by the
appellants. According to the respondents, the defendants failed to file
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written statement in spite of taking number of adjournments to file the
same. The matter was posted for evidence without written statement
with due notice and knowledge of the defendants as well as their
advocate. The defendants failed to take part in the proceedings and
did not examine the witnesses. The matter was decided on merits
taking into consideration the documentary and oral evidence led by the
parties. Therefore, decree passed by the court below is not exparte but
the same is passed on merits.
5 Learned IInd Joint C.J.S.D. Aurangabad finally decided MARJI
No. 21 of 1995 by his judgment and order dated 30.9.1996 mainly on
two grounds. Firstly, on the ground of non filing of written statement
by the appellants i.e. original defendants and secondly, decree is not
an exparte decree and as such application to set aside such judgment
does not lie under Order IX Rule 13 of C.P.C. therefore, application
filed on behalf of the appellants came to be rejected.
6 Learned counsel appearing for the appellants submitted that
decree passed by the court below was in fact in absence of written
statement filed on behalf of the defendants. It is further submitted that
the matter was posted for hearing when defendants themselves or
their advocate was not present on the date of hearing and therefore,
decree passed by the Court below was exparte decree and therefore,
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the application filed by the original defendants for setting aside the
decree under Order IV Rule 13 was maintainable. Learned counsel
invited my attention to the grounds taken in the appeal memo and
submitted that the lower court should not have rejected the application
on the ground that the said application is not maintainable under Order
IX Rule 13 of C.P.C.
7 Learned counsel appearing for the respondents invited my
attention to the findings recorded by the court below while rejecting the
application. Learned counsel for the respondents placed reliance on
the judgment of this Court in the case of Laxman Jhingraji Adhav
Vs. Sushila Jhingraji reported in 1996 B.H.C.C. 124 and submitted
that if the court has passed decree against the defendants on their
failure to file written statement it is not an exparte decree. Learned
counsel further submitted that after all decree passed by the court
below is a money decree. The loan amount was borrowed by the
appellants from the respondent Bank and even principal amount is not
repaid by the appellants. Therefore, if this appeal is allowed, which
would cause great hardship to the respondent. It is further submitted
that the because of absence of the appellants i.e. original defendants
and their advocate on the date of hearing, the decree came to be
passed and the respondents are unnecessarily being dragged in the
litigation by the appellants, therefore, they are entitled at least for
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some costs.
8 I have given due consideration to the submissions advanced on
behalf of the appellants as well as the respondent. It is not in dispute
that on the date of hearing, counsel for the defendants or the
defendants themselves were not present before the court. It is also
admitted position that an application for adjournment was filed by the
advocate for original defendants. It has also come on record that
advocate for defendants left the court due to his personal difficulty
before the case was taken up for hearing. On reading the impugned
order, it clearly emerges that the application for setting aside the
judgment and decree passed by the court below in MARJI No. 21 of
1995 is rejected by IInd Joint C.J.S.D. Aurangabad holding that since
the decree passed in Special Civil Suit No. 281 of 1992 is not exparte
decree and as such the application to set aside the said judgment and
decree does not lie under Order IX Rule 13 of C.P.C.
9 I have given due consideration to the rival submissions
advanced on behalf of the parties. I have also carefully perused the
provisions of Order IX Rule 13 of C.P.C. In case of Prakash Chander
Manchandan and another, reported in AIR 1987 SC 42 is held that if
on the date fixed, one of the parties to the suit remain absent and for
that party no evidence has been led up to that date, the Court has no
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option but to proceed to dispose of the matter in accordance with
Order XVII Rule 2 in any one of the modes prescribed under Order IX
of C.P.C. After the Amendment by Act 104 of 1976 to Order XVII Rr. 2
and 3 in cases where a party is absent only course is as mentioned in
Order XVII Rule 3(b) to proceed under Rule 2. Therefore, in absence
of the defendant, the Court had no option but to proceed under R. 2.
Similarly, the language of Rule 2, as now stands, also clearly lays
down that if any one of the parties fails to appear, the court has to
proceed to dispose of the suit in one of the modes directed under O. 9.
The explanation to Rule 2 gives a discretion to the court to proceed
under Rule 3 even if a party is absent but that discretion is limited only
in cases where a party which is absent has led some evidence or has
examined substantial part of their evidence.
In para 7 and 8, it is further held that in such a case, the Court
cannot proceed to dispose of the suit on merits and after it proceeds to
dispose of the suit in any one of the modes provided under Order IX in
the present case to pass ex-parte decree, the defendant can
subsequently file an application under Order IX Rule 13 for setting
aside ex parte decree (emphasis supplied).
10 Taking into consideration the aforesaid judgment of the Hon’ble
Supreme Court in the case of Prakash Chander Manchanda and
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Anr. (supra), this Court in the case of Trimurthy Packing Paper Vs.
Corporation Bank and others, in para 8 held that since the suit in
that case has been disposed of by resorting to any of the modes
prescribed in Order IX of C.P.C. In the light of the Apex Court
judgment in the case of Prakash Chander Manchanda and Anr.
(supra), application under Order IX Rule 13 of C.P.C. would be
maintainable for setting aside the exparte decree.
Yet in another reported judgment of this Court in the case of
Balu @ Madhavrao Shankarrao Ghorpade since deceased by his
LRs, Ajay Madhavrao Ghorpade and others. Vs. Radhakkabai
Panditrao Ghorpade and others, reported in 2004(1) Mh.L.J. 323
held that the application for setting aside exparte decree under Order
IX Rule 13 is maintainable if the defendant did not appear on the date
of hearing and no evidence was led on behalf of the defendant. The
judgment and decree passed by the court on uncontroverted evidence
of the plaintiff would be exparte and not an order on merits. In that
case also written statement was filed by the defendant in the suit.
The Hon’ble Supreme Court in the case of Mahesh Yadav and
another Vs. Rajeshwar Singh and others, reported in (2009) 2
SCC 205, held that the application for setting aside exparte decree is
maintainable under Order IX Rule 13 of C.P.C. In that case also, the
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original defendant who was petitioner before the Hon’ble Supreme
Court, did file written statement.
11 Therefore, from perusal of the judgments of the Apex Court and
this Court, it follows that if the defendant did not appear on the date of
hearing and no evidence was led on behalf of the defendant, the
judgment and decree passed by the court on uncontroverted evidence
of plaintiff would be exparte and not an order on merits. It is
undisputed position that the date which was fixed for hearing neither
defendants nor the advocate for the defendants were present before
the court. Therefore, the trial court was not correct in holding that the
decree which came to be passed on 13.12.1994 in Special Civil suit
No. 181 of 1992 was not exparte decree, therefore, in the light of the
judgment of the Hon’ble Supreme Court in the case of Prakash
Chander Manchanda and another (supra) the case of the appellant
is required to be accepted.
12 It is an admitted position that no written statement was filed by
the appellants herein in the suit. It is also admitted position that no
evidence was led on behalf of the defendants in the suit. On the date
of hearing neither the defendants nor their advocate was present
before the Court and therefore, in the light of law laid down by the
Hon’ble Supreme Court and also by this Court, the decree which was
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passed by the IInd Joint C.J.S.D. Aurangabad was exparte decree and
therefore, application under Order IX Rule 13 was maintainable.
13 Though the counsel for the respondent Bank has justifiably
argued that the appellant should be directed to deposit the decreetal
amount, however, in my opinion, the said prayer is beyond the scope
of present Appeal From Order and thus the same cannot be
entertained. However, learned counsel for the respondent is justified in
asking costs from the appellants for dragging the respondent Bank into
further litigation for their fault in not causing appearance on the date of
hearing before the Court below. I am of the opinion that exparte
decree came to be passed merely because the advocate for the
defendants or for that matter the defendants themselves did not attend
the hearing or participating in the proceeding before the Court below.
That apart, it is an admitted position that the appellants have borrowed
money from the respondent Bank. The Substantial amount of money
has been borrowed by the appellants from the Bank. In this view of
the matter, I am of the opinion that the respondents are justified in
arguing that some amount towards expenses incurred for litigation and
engaging advocate may be awarded to the respondent Bank.
Therefore, I am of the opinion that the appellants shall pay Rs.10,000/-
to the respondent Bank.
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14 In this view of the matter, the impugned order dated 30.9.1996,
passed below Exh.23 by the learned IInd Joint C.J.S.D. Aurangabad in
MARJI No. 21 of 1995 is quashed and set aside. The MARJI No. 21 of
1995 is restored to its original position. It is clarified that the said
application under Order IX Rule 13 is maintainable. The concerned
court to hear and decide the said application on merits in accordance
with law, within a period of two months from the date of receipt of the
copy of this order. The appellants herein to pay Rs.10,000/- (Rupees
Ten thousand only) to the respondent herein within one month from
today.
15 Needless to mention that all contentions, which are to be
agitated, on merits, are kept open, during the course of hearing of the
application for setting aside the exparte decree.
16 The original record, if any, be sent back forthwith to the
concerned Court.
17 Copy of this order be transmitted to the concerned court
forthwith.
18 In the aforesaid circumstances, nothing remains to be decided in
the civil application, thus the civil application No. 5320 of 1996 stands
disposed of accordingly.
*
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