Defendant's recall application under Order IX Rule 13 CPC rejected for failure to prove circumstances beyond control

Delhi HC set aside trial court's order allowing defendant's recall application under Order IX Rule 13 CPC. Despite defendant's claim of lack of communication with counsel while in judicial custody, evidence showed defendant applied for certified copies, appeared before SC through counsel, and filed reopening application via pairokar during the same period. Court found defendant's failure to appear was due to his own default, not circumstances beyond control. HC exercised supervisory jurisdiction under Article 227 of Constitution to reverse trial court's decision in suit for recovery of goods' price.

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Issues involved:
Petition under Article 227 challenging the order allowing the recall of an ex-parte decree under Order IX Rule 13 CPC.

Analysis:

Issue 1: Recall of ex-parte decree under Order IX Rule 13 CPC
The respondent filed an application under Order IX Rule 13 CPC to recall an ex-parte decree, citing difficulty in communication due to being in judicial custody. The Trial Court allowed the application, considering it within limitation and not finding fault with the defendant's non-appearance. The Trial Court observed that the defendant's knowledge of the decree post-release justified the application's timing. The Court also noted the defendant's challenges in communication and the lack of fault for non-appearance. However, the petitioner argued against the defendant's claim of lost communication with counsel, presenting evidence of counsel's appearances and actions during the relevant period. The High Court analyzed the principles under Order IX Rule 13 CPC, emphasizing the defendant's intention to be present and the requirement of a reasonable defense. The High Court found merit in the petitioner's argument, highlighting the defendant's representation by counsel and actions contradicting the claim of lost communication. The High Court deemed the Trial Court's findings erroneous and unsustainable, ultimately setting aside the order recalling the decree.

Issue 2: Merits of the recall application
The Trial Court was persuaded by the defendant's argument regarding communication issues during judicial custody. However, the High Court noted the defendant's actions, such as applying for certified copies of the decree and counsel's appearances before the Supreme Court, contradicting the claim of lost communication. Additionally, an application filed by a representative of the defendant for reopening evidence during the relevant period indicated the defendant's ability to participate in legal proceedings. The High Court considered these factors in assessing the defendant's claim and found it lacking merit. The ongoing execution process, including auctioning the defendant's properties, further influenced the High Court's decision to set aside the Trial Court's order and dismiss the defendant's recall application under Order IX Rule 13 CPC.

In conclusion, the High Court allowed the petition, setting aside the Trial Court's order and dismissing the defendant's application under Order IX Rule 13 CPC. The respondent was directed to pay costs to the petitioner.

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