Writ Petition No.259 of 2011,Writ Petition No.260 of 2011

28th June, 2011

Petitioner Counsel: Mr. S. G. Dessai,Mr. G. Teles , Mr. A. Gaonkar
Respondent Counsel: Mr. V. A. Lawande , Mr. Sanjay S. Sardessai

Cases Cited:
Vijay Kumar Madan & Ors. Vs. R. N. Gupta Technical Education Society & Ors., 2002(3) ALL MR 223 (S.C.)=(2002) 5 SCC 30 [Para 8,14]
Radheshyam Vs. Tuljaprasad & Ors., 2007(4) ALL MR 278=CDJ 2007 BHC 771 [Para 8,14]
Shivchandrai Jhunjhunwala Charitable Trust, Amravati and Ors. Vs. Govindprasad Ganeshprasad Dubey & Ors., 2003(3) ALL MR 1065 [Para 9,16]
Radheshyam & Anr. Vs. Chhabi Nath & Ors., 2009 ALL SCR 1765 : (2009)5 SCC 616 [Para 9,16]

JUDGMENT

JUDGMENT :- Heard Mr. Dessai, learned Senior Counsel for the petitioners and Mr. Lawande, learned Counsel for the respondents.

2. Rule. Learned Counsel appearing for the respondents in both the petitions waives notice on behalf of the respondents. By consent, heard forthwith.

3. Both these petitions are being disposed of by common judgment since the challenge in both these petitions is to a part of the common order dated 10th February, 2011 passed by the Civil Judge, Senior Division, Panaji in Special Civil Suit Nos.23/2010/B and 24/2010/B.

4. The petitioners in both the petitions are the defendants in the above mentioned suits filed by the respondents herein seeking reliefs of recovery of possession, arrears of rents and damages.

5. After the defendants were served in both the suits, ex-parte orders were passed against the defendants which were set aside. Thereafter, both the suits were fixed for filing written statements on 19th October, 2010 in the morning session. The advocate appearing on behalf of the defendants did not appear in the morning session and as such, ex-parte orders came to be passed in both the suits. Thereafter, the applications under Order 9 Rule, 7 of C.P.C. for setting aside the ex-parte orders were filed on the same day by the advocate appearing for the defendants. The applications were opposed on behalf of the plaintiff. By the common order dated 10th February, 2011 the learned trial Judge has allowed the applications subject to payment of Rs.500/- each with a direction to the defendants to file written statements within one week and to comply with the provisions of Order 15-A of C.P.C. within a period of one month. It appears that along with the suits, the plaintiff had filed applications under Order 39, Rules 1 and 2 of C.P.C. in which relief which is available under Order 15-A of C.P.C. was also claimed. There is no dispute that reply to the said applications have been filed by the defendants.

6. Indisputably, in terms of the said common order, the defendants filed written statements in both the suits and paid the costs, but did not comply with the directions of the trial Court under Order 15-A of C.P.C. The case set up on behalf of the defendants is that the advocate appearing for the defendants did not know the exact nature of the orders passed on 10th February, 2011 and he thought that the exparte orders were set aside only subject to payment of costs and there were no directions as such under Order 15-A of C.P.C. Thereafter, the plaintiff made applications under Order 6, Rule 16 of C.P.C. for striking off the defence and it is the case of the defendants that it is at that stage, the defendants' advocate came to know about the directions given by the trial Judge for compliance of Order 15-A of C.P.C.

7. The petitioners have challenged only that part of the impugned common order to the extent it directs the defendants to comply with Order XV-A of C.P.C.

8. Mr. Dessai, learned Senior Counsel appearing for the petitioners in both the petitions submitted that while disposing of the applications under Order IX, Rule 7 of C.P.C., the learned trial Judge could not have given directions to comply with Order XV-A of C.P.C. having regard to the language of Order IX, Rule 7 of C.P.C. According to learned Senior Counsel, the trial Court ought to have decided the applications under Order XXXIX, Rules 1 and 2 of C.P.C. in which the prayer contemplated under Order XV-A of C.P.C. was made, independently by giving an opportunity of being heard to the petitioners and the trial Judge has clearly erred in directing the defendants to comply with Order XV-A of C.P.C. while setting aside the ex-parte orders. In support of this submission, Mr. Dessai placed reliance upon the judgment of the Apex Court in the case of Vijay Kumar Madan and Others Vs. R. N. Gupta Technical Education Society and others; (2002) 5 SCC 30 : [2002(3) ALL MR 223 (S.C.)]. Mr. Dessai also placed reliance upon the judgment of this Court in the case of Radheshyam Versus Tuljaprasad and others; CDJ 2007 BHC 771 : [2007(4) ALL MR 278]. According to learned Counsel, the trial Court at the most could have imposed costs while setting aside ex-parte orders and permitting the defendants to file written statements in the suits. Learned Counsel further submitted that the trial Court ought to have applied its mind to find out whether the plaintiff was entitled to order under Order XV-A of C.P.C. after considering the replies filed by the defendants in both the suits, which admittedly has not been done in the present case. Mr. Dessai further submitted that there is serious dispute raised by the defendants about their liability to pay any amount to the plaintiff and in this factual background, order under Order XV-A of C.P.C. could not have been made against the defendants without giving an opportunity of being heard to the defendants.

9. Per contra, Mr. Lawande, learned Counsel for the respondents submitted that the petitions filed by the petitioners are not maintainable in as much as both the petitioners are Companies and the petitioners have not placed on record any resolution authorising the person, who has filed the petitions, to file the same. Learned Counsel further submitted that the petitioners are guilty of suppression of facts in as much as the petitioners have not pleaded in the petitions that on the earlier occasion also, exparte orders were passed in both the suits which were later on set aside at the instance of the defendants/ petitioners. Mr. Lawande further submitted that there is no serious dispute as to the amounts payable by the defendants to the plaintiff and as such, the trial Court was perfectly justified in passing the order under Order XV-A of C.P.C. as a condition precedent for setting aside ex-parte orders dated 19th October, 2010. By placing reliance upon the judgment of the Apex Court in the case of Shivchandrai Jhunjhunwala Charitable Trust, Amravati and Ors Vs. Govindprasad Ganeshprasad Dubey and ors; 2003(3) ALL MR 1065, it was further urged that the petitioners have not made out any case for interference in exercise of jurisdiction under Article 227 of the Constitution of India which has to be sparingly exercised. Learned Counsel further submitted that the petitioners having paid the costs in terms of the impugned order, are not entitled to file the present petitions challenging the part of the order which is adverse to the petitioners. Mr. Lawande placed reliance upon the judgment of the Apex Court in the case of Radheshyam and another Vs. Chhabi Nath and others; (2009)5 SCC 616 : [2009 ALL SCR 1765] and submitted that it is only in exceptional circumstances that jurisdiction under Article 227 of the Constitution of India has to be exercised. Mr. Lawande submitted that no case is made out by the petitioners for interference with the impugned order.

10. In rejoinder, Mr. Dessai, learned Counsel for the petitioners submitted that the petitioners have already placed on record the copy of the resolution authorising Mr. Manuel Pally D'Souza to file the present petitions and as such, the submission made on behalf of the respondents that the petitions are not maintainable is unsustainable in law. He further submitted that the petitioners are not guilty of suppression of material facts in as much as it was not necessary for the petitioners to plead that on earlier occasion also ex-parte orders were passed against the defendants which were later on set aside by the trial Court.

11. I have considered the rival submissions, perused the record and the judgments relied upon.

12. In so far as the first objection taken by Mr. Lawande that the petitions filed by the petitioners are not maintainable in as much as the petitions have not been filed by the duly authorised representative is concerned, in view of the submission made by Mr. Dessai which is borne out from the record, has no merit. A copy of the resolution clearly discloses that Mr. Manuel Pally D'Souza is duly authorised to file the present petitions and as such, the first objection has no merit and as such, is rejected.

13. The next submission made by Mr. Lawande is regarding the suppression of material facts. I find merit in the submission of Mr. Dessai that mere fact that the petitioners have not mentioned in the petitions that on earlier occasion also ex-parte orders were passed in both the suits which were later on set aside, can be taken as suppression of material facts warranting dismissal of the petitions at the threshold. Therefore, the second objection, which has no merit also deserves to be rejected and is hereby rejected.

14. The core issue involved in the present petitions is whether the learned trial Judge could have directed the defendants to comply with Order XV-A of C.P.C. as a condition precedent for setting aside ex-parte orders while disposing of the applications under Order IX, Rule 7 of C.P.C. In my view, the issue is covered in favour of the petitioners by the judgment of the Apex Court in the case of Vijay Kumar Madan and Others [2002(3) ALL MR 223 (S.C.)] (supra). In the said case, the Apex Court has held that while imposing the conditions for setting aside the ex-parte order the same cannot be onerous or vague nor they should have the effect of prejudging the controversy involved and the defendant should not end up in a worst position than if he had not filed the application under Order IX, Rule 7 of C.P.C. In the said case, on application under Order IX, Rule 7 of C.P.C., ex-parte order was set aside with a condition that the defendants/tenants should deposit monthly lease amount in the Court at the time of filing of written statement. The Apex Court held that such a condition put by the trial Court was too onerous, vague and lacking any clarity and further held that such a condition was rightly set aside by the High Court. However, the Apex Court imposed costs of Rs.50,000/- on the defendants / respondents.

In the case of Radheshyam Vs. Tuljaprasad [2007(4) ALL MR 278] (supra) relied upon on behalf of the petitioners, the learned Single Judge has held that the provision of Order XV-A of C.P.C. would come into play only when there is prima facie evidence to show that the rent or licence fees were agreed between the parties and a particular sum could be charged as a liability. The learned Single Judge further held that striking off the defence is not automatic because of nondepositing of the amount as directed by the Court.

15. In the present case, admittedly, the applications filed under Order XXXIX, Rules 1 and 2 of C.P.C. with prayer therein available under Order XV-A of C.P.C. have not been decided by the trial Court although replies have been filed on behalf of the defendants. In this factual background, in my considered opinion, the trial Court could not have directed the defendants to comply with Order XV-A of C.P.C. as has been done by the trial Court in the impugned order. The learned trial Judge has also not quantified the amount which is to be paid by the defendants in terms of Order XV-A of C.P.C. and as such, the order is vague and on this ground also this part of the order is not sustainable and is liable to be set aside.

16. In so far as the submission made by Mr. Lawande that the petitions filed are not maintainable under Article 227 of the Constitution of India by placing reliance upon the judgment in the case of Shivchandrai Jhunjhunwala Charitable Trust (supra) is concerned, no doubt in the said judgment, learned Single Judge of this Court has held that jurisdiction under Article 227 of the Constitution of India has to be exercised in exceptional case to prevent miscarriage of justice or to set aside a patent illegality. In the present case, as stated above, the learned Judge while directing the defendants to comply with Order XV-A of C.P.C. has exercised jurisdiction illegally and contrary to the principles laid down by the Apex Court. In the case of Radheshyam Vs. Chhabi Nath [2009 ALL SCR 1765] (supra), the Apex Court has observed that jurisdiction under Article 227 of the Constitution of India has to be exercised only in exceptional cases where manifest miscarriage of justice has occasioned and not to correct a mistake of fact or of law. In my considered opinion, the direction given by the learned Judge to comply with Order XV-A is not only patently illegal but also vague.

17. Perusal of the impugned order discloses that while setting aside the ex-parte orders, the trial Court imposed costs of Rs.500/- and also directed the defendants to comply with the provisions of Order XV-A of C.P.C. Admittedly, the defendants have paid the costs and have filed written statements. It is the case of the defendants/ petitioners that their advocate did not know the exact nature of the order passed and he was under impression that the applications under Order IX, Rule 7 of C.P.C. have been allowed only subject to payment of costs. Ordinarily, upon payment of costs, the party is not entitled to challenge only part of the order adverse to him. However, considering the fact that it is only on account of the misunderstanding of the advocate appearing for the defendants/ petitioners which prima facie discloses negligence that the petitioners filed written statements after paying the costs but did not challenge the direction given by the trial Court to comply with Order XV-A C.P.C., the petitioners do not deserve to be non-suited on this ground. The respondents deserve to be compensated for the negligence on the part of the defendants and it would be in the interest of justice to strike a balance by imposing heavy costs in favour of the respondents in both the matters. Non-suiting the petitioners on the ground that they have paid the costs on account of wrong information provided to the defendants would result in serious prejudice to the defendants/ petitioners in as much as by the impugned order, the petitioners have been asked to comply with Order XV-A of C.P.C. which direction as held above is not only illegal but vague.

18. In view of the above, the impugned order to the extent it directs the defendants/petitioners to comply with Order XV-A of C.P.C. is set aside subject to the petitioners in each petition paying costs of Rs.10,000/- to the respondent in addition to the costs already awarded. The petitioners shall deposit the costs in the trial Court within a period of two weeks. Upon deposit of the costs, the respondents are at liberty to withdraw the costs. Needless to mention that the trial Court shall decide the applications filed under Order XXXIX, Rules 1 and 2 of C.P.C. in which prayer available under Order XV-A of C.P.C. is made on their own merits.

19. Rule in both the petitions is made absolute in aforesaid terms.

Ordered accordingly.