G.P. SRIVASTAVA versus SHRI R.K. RAIZADA AND ORS.

Citation: [2000] 2 S.C.R. 97 · Decided: 03-03-2000 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Appeal(s) allowed

Judgment (excerpt)

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G.P. SRIVASTAVA 
v. 
SHRI RK. RAIZADA AND ORS. 
MARCH 3, 2000 
[S. SAGHIR AHMAD AND RP. SETHI, JJ.] 
Code of Civil Procedure, 1908-0rder 9, Rule 13-Exparte decree-
Power to set aside-Party to show sufficient cause for non-appearance on the 
date of hearing. 
Exparte decree-Setting aside of-Narrow and technical approach of 
court-Held, leads to unnecessary prolonging of litigation-Further, justice is 
met only if application is allowed giving opportunity to prove his case within 
a reasonable time. 
/Interpretation of Statutes-Liberal construction-To enable the court to 
do complete justice. 
A suit for arrears of rent, ejectment and damages filed against the 
appellant was decreed ex-parte due to non-appearance. The appellant filed 
an application under Order 9 Rule 13 of the Code of Civil Procedure for 
setting aside the ex-parte decree. It was pleaded that non-appearance of the 
appellant or his counsel was due to appellant's employment, his illness and 
death of counsel's nephew. Both the trial court and the High Court did not 
accept the pleas raised by the appellant. The High Court also noticing the 
appellant's previous negligence rejected the revision petition. Hence these 
appeals. 
Allowing the appeals, this Court 
HELD : 1.1. Under Order 9 Rule 13 of the Code of Civil Procedure 
the court has no power to set aside an ex-parte decree unless 'sufficient 
cause' is shown for non-appearance of the defendant in the case on the 
date of hearing or the court is satisfied that the summons were not duly 
served upon the defendant. (100-G-H] 
1.2. The 'sufficient cause' for non-appearance refers to the date on 
which the absence was made a ground for proceeding ex-parte and cannot 
A 
B 
c 
D 
E 
F 
G 
be s_tretched to rely upon other circumstances anterior in time. The party 
H 
97 
A 
B 
c 
D 
E 
F 
G 
98 
SUPREME COURT REPORTS 
[2000] 2 S.C.R. 
cannot be penalised for his previous negligence which had been overlooked 
and thereby condoned earlier. In a case where defendant approaches the 
Court immediately and within the statutory time specified, the discretion 
is normally exercised in his favour, provided the absence was not malafide 
or intentional. (101-C-D] 
1.3. The words "was prevented by any sufficient cause from appear-
ing'' must be liberally construed to enable the court to do complete justice 
between the parties particularly when no negligence or inaction is imput-
able to erring party. Sufficient cause for the purpose of Order 9 Rule 13 of 
the Code has to be construed as elastic for which no hard and fast guide-
lines can be prescribed. [101-B] 
2.1. In the instant case, the appellant pleaded his non-appearance 
due to his employment, his illness and death of counsel's nephew. ~s 
defence was found reasonable and was made within statutory period. The 
High Court erred in dismissing the appellant's application. Further, the 
mere fact of obtaining a certificate from a private doctor could not be 
made a basis for rejecting the claim of sickness. If the defendant is found to 
be negligent, the other side may be compensated by costs and ex-parte 
decree be set aside on such terms and conditions. Thus, the ex-parte is set 
aside on payment of costs of Rs. 5,000 to the other side. 
[101-E; 100-F; 102-A] 
2.2. Both the trial court and the High Court have adopted a very 
narrow and technical approach in dealing with a matter pertaining to the 
eviction of the appellant despite the fact he had put a reasonable defence 
and had approached the Court for setting aside the ex-parte decree, admit-
tedly, within the statutory period. The litigation between the parties has 
unnecessarily been prolonged for about 17 days and the ends of justice can 
be met only if the appellant is allowed opportunity to prove his case within 
a reasonable time. As such the trial court is directed to afford an opportu-
nity to the appella'Ilt and dispose of the suit within six months. 
(101-F-H; 102-B] 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1934-35 of 
2000. 
From the Judgment and Order dated 23.9.1999 and 11.10.99 of the 
H 
Allahabad High Court in Civil Revision No. 73 of 1985 and Review Petition 
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G.P. SRNASTAVA v. R.K. RAIZADA [SETHI, J.] 
No. 201 of 1999 respectively. 
99 
Gopal Subramanium, Santosh Kumar, Devesh Singh, Pradeep Ranjan 
Tiwari and Rakesh K. Shanna for the Appellant. 
Tara Chandra Shanna Ajay Shanna and Ms. Pankhuri Srivastava for the 
A 
Respondents. 
B 
The Judgment of the Court was delivered by 
S

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