2019 (7) TMI 2021 - HC - Indian Laws

Application for recall of an ex-parte under Order IX Rule 13 of the Code of Civil Procedure, 1908 allowed - defendant's failure to lead the evidence or appear was not on account of his own default - suit for recovery of the price of goods sold to the respondent - HELD THAT - The Trial Court has been persuaded by the defendant's argument that the defendant and his counsel were not in communication when the defendant was in judicial custody. However, the facts regarding his having applied for certified copies of the decree during this period, and having appeared for the defendant on atleast two occasions before the Supreme Court, belie the stand taken by the defendant. It is also significant that, even during this period, an application was filed in March, 2016 for reopening the defendant's evidence, which had been closed in October, 2015. This application was filed by a pairokar of the defendant and shows that the defendant was in a position to participate in judicial proceedings even at that stage. This is a fit case for exercise of jurisdiction under Article 227 of the Constitution, against the order of the Trial Court invoking its powers under Order IX Rule 13 of the CPC. The impugned order is set aside - petition allowed.

Summary

Issues involved:
Petition under Article 227 challenging the order allowing the recall of an ex-parte decree under Order IX Rule 13 CPC.

Analysis:

Issue 1: Recall of ex-parte decree under Order IX Rule 13 CPC
The respondent filed an application under Order IX Rule 13 CPC to recall an ex-parte decree, citing difficulty in communication due to being in judicial custody. The Trial Court allowed the application, considering it within limitation and not finding fault with the defendant's non-appearance. The Trial Court observed that the defendant's knowledge of the decree post-release justified the application's timing. The Court also noted the defendant's challenges in communication and the lack of fault for non-appearance. However, the petitioner argued against the defendant's claim of lost communication with counsel, presenting evidence of counsel's appearances and actions during the relevant period. The High Court analyzed the principles under Order IX Rule 13 CPC, emphasizing the defendant's intention to be present and the requirement of a reasonable defense. The High Court found merit in the petitioner's argument, highlighting the defendant's representation by counsel and actions contradicting the claim of lost communication. The High Court deemed the Trial Court's findings erroneous and unsustainable, ultimately setting aside the order recalling the decree.

Issue 2: Merits of the recall application
The Trial Court was persuaded by the defendant's argument regarding communication issues during judicial custody. However, the High Court noted the defendant's actions, such as applying for certified copies of the decree and counsel's appearances before the Supreme Court, contradicting the claim of lost communication. Additionally, an application filed by a representative of the defendant for reopening evidence during the relevant period indicated the defendant's ability to participate in legal proceedings. The High Court considered these factors in assessing the defendant's claim and found it lacking merit. The ongoing execution process, including auctioning the defendant's properties, further influenced the High Court's decision to set aside the Trial Court's order and dismiss the defendant's recall application under Order IX Rule 13 CPC.

In conclusion, the High Court allowed the petition, setting aside the Trial Court's order and dismissing the defendant's application under Order IX Rule 13 CPC. The respondent was directed to pay costs to the petitioner.