High Court sets aside ex parte decree in Record-of-rights correction suit, stresses compassionate view

The High Court set aside the ex parte decree in a suit for correction of Record-of-rights, subject to the defendants paying a specified cost to the plaintiff within six weeks. The court emphasized the need for a compassionate view in cases of bona fide mistakes or unavoidable circumstances affecting litigants' rights, criticizing the lower courts' technical approach. The pending suit was directed to be expeditiously disposed of, with the ex parte decree becoming operative if the cost was not paid within the stipulated time. The Civil Revision was allowed with no order as to costs.

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Issues:
Challenge to order in Misc. Appeal, refusal to entertain application under Order 9, Rule 13 of the Code of Civil Procedure.

Analysis:
The defendants challenged the order in Misc. Appeal No. 40/92, which confirmed the order refusing to entertain their application under Order 9, Rule 13 of the Code of Civil Procedure to set aside an ex parte decree. The defendants, as petitioners, had entered appearance in a suit for correction of Record-of-rights but allowed the suit to proceed ex parte. The defendants filed a petition to set aside the ex parte decree citing reasons such as illness of defendant No.1 and lack of awareness about the proceedings. The plaintiff opposed the petition, arguing that the defendants had sufficient opportunities to contest the suit and deliberately allowed the ex parte judgment. The trial court and the appellate court both found no justification to set aside the ex parte decree, emphasizing the delay in filing the application and the defendants' conduct. The appellate court affirmed the trial court's decision, leading to the defendants filing a Civil Revision.

The defendants' counsel argued that the defendants, being illiterate, relied on the advocate's clerk for information and were unaware of the dates for ex parte hearing. The counsel highlighted the substantial property involved and the potential loss of rights and livelihood due to the ex parte decree. The counsel emphasized that the defendants were willing to compensate the plaintiff for any inconvenience caused by setting aside the decree. The High Court noted that the lower courts did not find the evidence of witnesses untrustworthy but based their decisions on improper explanations of delay and lack of proper prayers for condonation of delay. The High Court criticized the technical approach of the lower courts, stressing the need for a compassionate and lenient view in cases of bona fide mistakes or unavoidable circumstances affecting litigants' rights.

The High Court, considering the circumstances, set aside the ex parte decree subject to the defendants paying a specified cost to the plaintiff within six weeks. The court directed the pending suit to be expeditiously disposed of, balancing the interests of both parties. If the cost was not paid within the stipulated time, the ex parte decree would become operative. The Civil Revision was allowed with no order as to costs.

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