A substantive right should not be allowed to be defeated on account of a procedural irregularity that is curable: High Court Of Chhattisgarh

Unless “sufficient cause” was shown for the non-appearance of the defendant in the case on the date of hearing, the court had no power to set aside an ex parte decree. Such an opinion was held by The Hon’ble High Court Of Chhattisgarh before The Hon’ble Shri Deepak Kumar Tiwari in the matter of Bagas Ram Verma Vs. Sanjay Kumar [MA No. 91 of 2019]. 

The facts of the case were associated with an appeal against an order passed by the 1st Additional District Judge, Rajnandgaon dated 30.01.2019 wherein the application by the appellant was rejected under Rule 13 of CPC. A civil suit was filed by the respondent against the appellant for recovery of the amount. Without giving any opportunity to the appellant, the said suit was decided ex-parte. It was noticed that during the proceedings of the trial court, the appellant who was supposed to appear was absent while his counsel appeared on behalf of him.

It was submitted that the appellant was not aware of the date of the hearing and due to the misunderstanding the ex-parte order was passed.It was stated that the respondent denied the averment of the appellant and contended that the appellant had intentionally not appeared before the Court. Later, the Trial Court dismissed the application of the appellant since he did not appear in the proceedings or had shown any cogent reason to remain ex-parte in the civil suit. 

Considering all the facts, The Hon’ble Court stated that “Therefore, looking to the facts and circumstances, this court is of the view that the appellant has established the sufficient cause for his non-appearance as his counsel has noted wrong date in his diary and so he has also not informed him, hence the application under Order 9 Rule 13 of Code of Civil Procedure is deserves to be allowed and accordingly allowed… Resultantly, the Appeal is allowed…”

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Judgment reviewed by Bipasha Kundu

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