LAL DEVI AND ANR. versus VANEETA JAIN AND ORS

Citation: [2007] 6 S.C.R. 561 · Decided: 14-05-2007 · Supreme Court of India · Bench: B.P. SINGH · Disposal: Appeal(s) allowed

Judgment (excerpt)

LAL DEVI AND ANR. 
v. 
VANEET A JAIN AND ORS 
MAY 14,2007 
(B.P. SINGH AND HARJIT SINGH BED!, JJ.] 
Specific Relief Act, 1963/Code of Civil Procedure, 1908; 0. IX R 13 
read withs. 151and0. IX R 7: 
A 
B 
Suit for specific performance-Agreement to sell immovable property-- C 
Payment of earnest money-Vendor allegedly did not execute sale deed--
Suit-Trial Court passing an ex-parte decree against defendant though 
application for recalling the order was filed by the counsel of defendant 
before pronouncement of the Order, but it was dismissed as not maintainable--
Affirmed by High Court-On appeal, held, no doubt the counsel for the D 
· defendants did not show even the minimum courtesy expected of them by not 
informing to the Trial Court that they were busy in the High Court-However, • 
counsel for the defendant submitted an application for recalling the order 
and that the matter may not be proceeding ex-parte, but the same was 
rejected as not maintainable-Jn view of settled law on the subject, Trial E 
Court could not have entertained an application under 0. IX R 7 but passing 
of an ex-parte decree in a case of this nature is too harsh a consequence to 
be upheld-Defendant could not be made to suffer an ex-parte decree 
particularly when he was not at fault having instructed the counsel to 
appear before the Court-Hence, Trial Court is directed to proceed with the 
suit in accordance with law. 
-y 
Plaintiff and defendant, since deceased, were good friends. Defendant 
F 
owned a property in Shimla, which he agreed to sell to the defendant on March 
26, 1982 for a consideration amount of Rs.4,20,000/-. A sum of Rs.40000/-
was stated to be paid by the plaintiff to the defendant as earnest money. However, 
the defendant did not execute the sale deed. Therefore, a suit for specific G 
performance of the agreement of sale was filed by the plaintiff before the High 
Court. 
_. 
)--
Before the trial Court, evidence had been recorded and ex-parte 
561 
H 
562 
SUPREME COURT REPORTS 
[2007] 6 S.C.R. 
A arguments had been heard and even judgment had been dictated, and then an 
"" "' 
application was moved by the Counsel for the defendant for re-calling of the 
order for pronouncement of judgment. Since the application was moved after 
the hearing stood completed and the case was adjourned to post lunch session 
for pronouncement of judgment, the same was held to be not maintainable by 
B 
the trial Court in view of the law laid down by the Supreme Court in "Arjun 
Singh v. Mohindra Kumar and Ors.," A.l.R. (1964) C.993. Moreover, no 
sufficient ground had been shown in the application for the absence of the 
defendant and/or his counsel when the case was called. The suit was decreed. 
4 
Aggrieved, the defendant filed an appeal, which was dismissed by the High 
'r 
Court. Hence the present appeal. 
c 
Appellant-vendor contended that having regard to the facts and 
circumstances of the case the District Judge/trial Court was not justified in 
proceeding with the matter ex-parte, particularly when counsel for the 
defendant appeared before him soon thereafter and made a request to re-call 
the order. The request was made before the judgment was pronounced. 
D However, the trial Court proceeded to pass an ex-parte decree on the same 
day. 
?' 
Respondent submitted that in the absence of the defendant and his 
f' 
counsel, and in the absence of any request on their behalf, the trial Court had 
E 
no option but to proceed ex-parte; and that the setting aside of an ex-parte 
decree may give to them an undue advantage and they may raise all sorts of 
pleas to defeat the just claim of the respondents. 
Allowing the appeal, the Court 
HELD: 1.1. It is no doubt true that when the suit was called out before 
F the Court of the District Judge/trial Court, counsel for the parties ought to 
have been present in Court. If on account of any unforeseen or unavoidable 
..,. 
reason it was not possible for the defendant or his counsel to be present in 
Court, courtesy demanded that a representation ought to have been made before 
the Court by any other counsel so that the Court was informed that the counsel 
G engaged were busy in the High Court. If such a request was made, no doubt, 
the trial Court would have accommodated counsel for the defendant. It is not 
unusual for the lower Courts to accommodate counsel on whose behalf a 
representation is made about their absence on account of remaining pre-
occupied before the High Court. No doubt,

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