Commissioner Of Income-Tax v. Surendra Singh Pahwa And Others

1. Both these appeals being, in a sense, interconnected, it would be convenient to dispose them of by a common order. While First Appeal No. 161 of 1994 is directed the ex parte judgment and decree dated 5-1-1994 passed in suit No. 71 of 1992 Surendra Singh Pahwa v. Chandra Kumar, First Appeal From Order No. 1014 of 1994 is directed against the order rejecting application under Order 9, Rule 13, C.P.C for setting aside the ex parte decree which is the subject matter of challenge in the First Appeal.

2. The suit giving rise to these appeals was filed by the plaintiff respondent No. 1, Surendra Singh Pahwa against the respondents Nos. 2 to 4 impleading the appellant as defendant No. 4 for specific performance of a contract for sale dated 23-3-1976 between Ram Kumar, the father of the defendant Nos. 1 to 3 and Deshraj Singh Pahwa, the father of the plaintiff for sale consideration of Rupees 1,70,000/- as well as for perpetual injuction restraining the defendant appellant from auctioning the suit property in connection with the recovery of certain income-tax dues outstanding against Ram Kumar. It was alleged in the plaint that a sum of Rs. 20,000/- was paid in advance as earnest money and further that the plaintiff was always ready and willing to perform his part of contract, but despite notices the defendants Nos. 1 to 3 did not turn up to execute the sale deed in pursuance of the contract of sale and hence the necessity of suit.

3. Despite service of summons on them, the defendant respondent Nos. 1 to 3 did not file any written statement and the suit proceeded ex parte against them. The defendant-appellant did file written statement but, it appeals, on the date fixed for issues, viz. 1-12-1993 none appeared on behalf of the defendant appellant and, therefore, 7-12-1993 was fixed for ex parte evidence. The plaintiff respondent, however, filed affidavit in support of his case on 2-12-1993 i.e before the date fixed for ex parte evidence and upon hearing the counsel for the plaintiff on 7-12-1993, the trial court fixed 13-12-1993 for judgment, but the judgment was not delivered on the date fixed and while the matter was pending judgment the defendant appellant moved an application on 17-12-1993 for setting aside the order dated 1-12-1993 to proceed ex parte against it. The said application was rejected by the trial court vide order dated 18-12-1993 on the ground, that the arguments in the case already been heard and the judgment reserved and, therefore, the application was not maintainable. Ultimately the judgment was delievered and suit decreed ex parte on 5-1-1994 which is the subject matter of challenge in First Appeal No. 161 of 1994.

4. The appellant then filed an application under Order 9, Rule 13, C.P.C on 6-1-1994 with the allegation that none could appear on behalf of the appellant on the dated fixed for hearing due to the reason that on 30-10-1993 the Court while allowing an application for amendment in the pleading had fixed 15-11-1993 for carrying out the amendment but the clerk of the appellant's counsel wrongly noted 15-12-1993 in place of 15-11-1993 and that he came to know of the order dated 1-12-1993 to proceed ex parte on a subsequent date. The learned Civil Judge disbelieved the appellant's version and rejected the application under Order 9, Rule 13, C.P.C vide order dated 13-5-1994 which is the subject matter of challenge in First Appeal From Order No. 1014 of 1994.

5. Having heard the learned counsel for the parties and having perused the judgment dated 5-1-1994, I am of the view that it cannot be sustained. Even an ex parte judgment should satisfy the description of ‘judgment’ as laid down in Order 20, Rule 4(2), C.P.C, which visualises that the judgment of a Court other than the court of Small Causes “shall contain a concise statement of the case, points for determination, decision and the reasons for such decision.” A ‘judgment’ for its sustenance must contain not only findings on the points, but must also contain what evidence consists of, and how does not prove plaintiff's case. A judgment unsupported by reasons is no judgment in the eye of law. It is well settled that reasons are the links between the material on record and the conclusion arrived at by the Court. Mere fact that the defendant absented himself on the date of hearing and the suit proceeded ex parte, did not by itself entitle the plaintiff to get a decree in his favour. The court was under an obligation to apply its mind to whatever ex parte evidence or affidavit filed under Order 19 of the Code is on the record of the case, and application of mind must be writ large on the face of record. This is possible only if the court directs itself to whatever material is on record of the case, analyses the same and then comes to any conclusion on the basis of evidentiary value of the ex parte evidence or affidavit brought on record by the plaintiff. It may also be observed that the written statement already filed in this case would not be deemed to have been wiped off the record merely because the defendant did not appear on the date of issues and the suit was ordered to proceed ex parte. The trial court ought to have, on consideration of pleadings, formulated points for determination. The judgment dated 5-1-1994 does not satisfy these tests in as much as apart from stating parties' case, the learned Additional Civil Judge has not stated as to what was the evidence on record and how did it prove the plaintiff's case. All that the learned trial court has stated is that affidavit was filed on behalf of the plaintiff which completely proved his case. The finding and the reasons as given by the learned trial court run as thus:—

“VADI NE APNE SHAPATH PATRIYA SAKSHYA DWARA VAD PATRA ME KAHE GAYE ABHIKATHNON KA PURNRUREN SAMRTHAN KIYA HAI TATHA VADI KA VAD VIRUDDHA PROTIVADIGAN EK PARKSHIYA DECREE HONE YOGYA HAI”.

6. What follows the aforequoted observation is the operative portion of the judgment. It is thus evident that the judgment given by the learned trial court is no judgment in the eye of law. In Rameshwar Dayal v. Banda (dead) through his LR's 1993 All CJ 597, a judgment of Judge Small Causes Court without setting out the points for determination and without giving findings thereon was held by the Supreme Court as a judgment not amounting to a decree within the meaning of Section 2(2) read with Section 2(9) and Rules 4 and 5 of Order 20, C.P.C In the facts and circumstances of the case, therefore, this court is inclined to set aside the judgment and decree but not without the appellant being saddled with cost which I assess to be Rs. 2,000/- (Two thousand only) in as much the appellant has not been diligent in prosecuting its case before the trial court and this has led to an avoidable harassment to the plaintiff respondent who must be compensated by cost.

7. In view of the above conclusion F.A.F.O No. 1014 of 1994 directed against the order dated 23-5-1994 rejecting the appellant's application under Order 3, Rule 13, C.P.C becomes infructuous.

8. Accordingly First Appeal No. 101 of 1994 succeeds and is allowed and the judgment and decree dated 5-1-1994 are set aside subject, of course, to the appellant's paying Rs. 2,000/- as cost to the plaintiff respondent within a period of six weeks from today and the suit is remanded to the trial court for decision afresh in accordance with law. First Appeal From Order No. 1014 of 1994 is disposed as having become infructuous. Let a copy of this judgment be placed on the file of First Appeal From Order No. 1014 of 1994.

9. Order accordingly.