2021 (6) TMI 992 - HC - Indian Laws

Principles of natural justice - ex-parte judgement - suit for recovery - pronote and receipt was stated to have been returned to the respondent at the time of compromise - Order 9 Rule 13 read with Section 151 CPC - notice of the application under Order 21 Rule 66 CPC - HELD THAT - Respondent had duly proved another pronote and receipt dated 06.06.2014 in favour of Amardeep Kaur, the original of which was produced before the said Court. The said pronote and receipt was stated to have been returned to the respondent at the time of compromise by Amardeep Kaur. Respondent has indeed successfully proved that he had sufficient reason for not appearing before the trial Court as has been averred. Apprehension raised by learned counsel for the petitioner that such a finding would prejudicially affect the petitioner at the time of trial of the suit is unfounded, as it is abundantly clear that learned trial Court shall proceed to decide the matter on the basis of evidence to be led before it by the respective parties. Whether or not the present transaction was a part of compromise arrived at between the petitioner and the respondent, is clearly the subject matter of trial and shall be decided accordingly by the learned trial Court on the basis of evidence, which would be produced before it. Petition dismissed.

Issues:
- Setting aside an ex-parte judgment and decree
- Application under Order 9 Rule 13 read with Section 151 CPC
- Allegations of intentional absence of the respondent
- Compromise between the respondent and the petitioner's daughter
- Dismissal of the execution petition
- Appeal against the impugned order dated 29.02.2020

Setting aside an ex-parte judgment and decree:
The petitioner filed a suit for recovery against the respondent, which was decreed ex-parte on 09.12.2016. The respondent claimed that he was not intentionally absent but was involved in a settlement with the petitioner's daughter, leading to a misunderstanding about the suit proceedings. The respondent argued that he was not aware of the decree until 13.05.2019, when he obtained a copy of the Jamabandi of his land. The application under Order 9 Rule 13 read with Section 151 CPC was allowed by the Additional Civil Judge, setting aside the ex-parte judgment and decree and restoring the suit to its original number.

Application under Order 9 Rule 13 read with Section 151 CPC:
The respondent moved an application under Order 9 Rule 13 read with Section 151 CPC, stating that his absence in the suit proceedings was not intentional but due to the settlement with the petitioner's daughter. The application was contested by the petitioner, arguing that it was not maintainable after a significant lapse of time from the passing of the judgment and decree. However, the court allowed the application, citing sufficient grounds for the respondent's absence and setting aside the ex-parte judgment.

Allegations of intentional absence of the respondent:
The petitioner alleged that the respondent intentionally did not appear in the suit proceedings to prolong the case. The petitioner argued that the respondent's absence was deliberate and only filed the application after receiving notice under Order 21 Rule 66 CPC. However, the court observed that there were valid reasons preventing the respondent from appearing, leading to the setting aside of the ex-parte judgment.

Compromise between the respondent and the petitioner's daughter:
A settlement was reached between the respondent and the petitioner's daughter, involving the payment of a total sum in installments. The daughter withdrew the suit for recovery and the complaint under the Negotiable Instruments Act after receiving the agreed amounts. The court acknowledged the compromise and the transactions between the respondent and the daughter, which influenced the respondent's absence in the suit proceedings.

Dismissal of the execution petition:
The court dismissed the execution petition filed by the petitioner along with allowing the respondent's application to set aside the ex-parte judgment. The petitioner challenged this decision, arguing that the compromise did not pertain to the suit between the petitioner and the respondent. However, the court upheld the dismissal of the execution petition based on the circumstances surrounding the case.

Appeal against the impugned order dated 29.02.2020:
The petitioner filed a revision petition against the impugned order dated 29.02.2020, contending that it was wrongly passed. The petitioner's counsel argued that the order setting aside the judgment and decree was prejudicial and based on incorrect observations regarding the compromise. The court dismissed the petition, stating that there was no illegality, infirmity, or perversity in the impugned order, emphasizing that the trial court would decide the matter based on the evidence presented during the trial.

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