Holding

The Supreme Court held that the High Court’s non‑reasoned dismissal of the appeal was improper and that the trial court’s decree, given the defendant’s non‑appearance, required fresh adjudication, with costs awarded to the plaintiff.

Summary

Mis Sahara India and others filed a suit for possession against M.C. Agarwal HUF. The trial court, after several adjournments, decreed the suit despite the defendants' non‑appearance and without setting them ex parte. The defendants appealed, but the Delhi High Court dismissed the appeal by a non‑reasoned order, not addressing the defendants' plea regarding their absence. The Supreme Court held that the High Court’s dismissal was improper and that the trial court’s procedure was unusual, ordering the matter to be remitted to the trial court for fresh adjudication within three months. The Court also awarded costs of Rs.20,000 to the respondent, noting the plaintiff’s prejudice despite any justification for the defendants’ non‑appearance.

Issues considered

Whether a decree passed in a possession suit is valid when the defendant fails to appear and the trial court does not set the defendant ex parte.
Whether the High Court erred in dismissing the appeal without providing reasons or considering the defendant's plea for non‑appearance.
Whether costs should be awarded to the plaintiff in view of the prejudice caused by the trial court’s procedure.

Subjects

possession suitnon‑appearanceex parte decreecostsremandprocedural fairness

Judgment

MIS SAHARA INDIA AND ORS. A
v.
M.C. AGARWAL HUF

FEBRUARY 21, 2007

[DR. ARIJITPASAYAT ANDDALVEERBHANDARl,JJ.J B

Judgement/Order: Reasoned order-Requirement of-Suit decreed by
trial court in spite of non-appearance by defendant-Disposal of appeal by
High Court by non-reasoned order and without considering the plea of C
defendant as to why there was non-appearance-Thus, matter remitted back
to trial court for acfjudication afresh-Cost imposed on the appellant.

Suit for possession was filed. The case was adjourned for plaintifrs
evidence. Presiding Officer was on leave and the case was again adjourned
for plaintifrs evidence. There was no appearance from the defendant's side D
and the matter was adjourned for final argumtnts. Suit was decreed.
Defendants filed appeal which was dismissed. Hence the present appeal.

Disposing of the appeal, the Court

HELD: 1.1. High Court has disposed of the First Appeal practically by E
a non-reasoned order. It did not even consider the plea of the defendants as to
why there was non-appearance. Be that as it may, the course adopted by the
trial Court appears to be unusual. Therefore, it is proper to remit the matter
to the trial Court for fresh adjudication. [Para 8) [1039-B]

1.2. It is also proper that the appellants should pay cost to the respondent F
Even if the reason for non-appearance is accepted to be correct, the plaintiff
was certainly prejudiced. Merely because the counsel for the defendants did
not take proper care and caution that cannot be a ground to lose sight of the
prejudice caused to the plaintiff-respondent. The same has to be meted out by
costs which is fixed at Rs.20,000/-. [Para 9] [1039-C)
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 876 of2007.

From the Judgment and final Order dated 29.9.2004 of the High Court
of Delhi at New Delhi in F.A.O. No. 681 of2003.
1037 H
1038 SUPREME COURT REPORTS [2007] 2 S.C.R.

A M.L. Venna, K.K. Khurana, Sanjay Pal, Vaibhav Dang and RajivNanda
for the Appellants.

Respondent-In-Person through P.K. Aggarwal

The Judgment of the Court was delivered by
B
DR. ARIJIT PASAYAT, J. I. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single
Judge of the Delhi High Court dismissing the First Appeal No. 681/2003 and -r
upholding the order passed by learned Additional District Judge in Suit No.54
C of2001.

3. Detailed reference to the factual aspects would be unnecessary except
noting the vital aspects.

4: Suit No.54/2001 was filed in the Court of District Judge, Delhi. The
D same was for possession, recovery of damages and mesne profit and rent @
Rs.70,664/- p.m. i.e. On 26.2.2002 the learned Additional District Judge framed
issues and the case was adjourned to 13.5.2002 for the evid,ence of the
plaintiff. On 13.5.2002 the Presiding Officer was on leave and the case was
adjourned to 29.5.2002 for the plaintiff's evidence. On 29.5.2002 none appeared
E for the defendant and the matter was adjourned to be taken up oµ 31.5.2002
for final arguments and the matter was directed to be placed for orders after
lunch. Finally, the suit was decreed. The appeal filed by the defendants was
dismissed.

5. Learned counsel for the appellants submitted that the course adopted
F by the trial Court has no sanctity in law. The matter was listed on 13.5.2002 r
for plaintiff's evidence and was subsequently adjourned to 29.5.2002. Even
if the defendants were not present the order could have been at the most to
set the defendants ex parte and another date should have been fixed.
Interestingly, the matter was taken up that very day and a long judgment
running into several pages was delivered.
G
6. It was submitted that the reason for non-appearance was indicated
to be wrong noting of the date by learned counsel appearing for the defendants.
The High Court did not discuss any of the pleas and the submissions and
by a cryptic order dismissed the appeal.

H 7. Learned counsel for the respondent on the other hand submitted that
SAHARAIND!Av. M.C.AGARWALHUF[PASAYAT,J.] 1039

the appellants have not come with clean hands, and they have given a wrong A
r -f and distorted picture.

8. We find that the High Court has disposed of the First Appeal
practically by a non-reasoned order. It did not even consider the plea of the
defendants as to why there was non-appearance. Be that as it may, the course
adopted by the trial Court appears to be unusual. Therefore, we deem it B
proper to remit the matter to the trial Court for fresh adjudication. Since the
matter is pending the trial Court shall dispose of the matter within three
months from the date of receipt of our order.

9. It is also proper that the appellants should pay cost to the respondent. C
Even if the reason for non-appearance is accepted tO be correct, the plaintiff
was certainly prejudiced. Merely because the learned. counsel appearing for
the defendants did not take proper care and caution "fhat cannot be a ground
to loose sight of the prejudice caused to the plaintiff-respondent. The same
has to be meted out by costs which we fix at Rs.20,000/-. The amount shall
be paid within I 0 days from today. A receipt shall be filed before the trial D
Court immediately thereafter so that our directions for disposal within three
months can be duly complied with.

I0. Parties are permitted to place copy of our order before the trial Court
so that necessary directions can be issued.
E
11. The appeal is disposed of.

N.J. Appeal disposed of .