Casual Absence Of Defendant On Insignificant Date Would Not Make Court Order 'Ex-Parte': Bombay High Court

Justice Vinay Joshi of the Nagpur bench added that voluntarily not cross examining the party and not advancing argument does not mean the order was ex-parte.

The court was dealing with a batch of writ petitions wherein Land Acquisition Rehabilitation and Resettlement Authority had set aside its own orders by which land acquisition compensation had been enhanced. The ground was that the previous orders under Section 64 of the Right To Fair Compensation And Transparency In Land Acquisition Rehabilitation And Resettlement Act, 2013 were 'ex-parte'.

"The defendant cannot take disadvantage of his isolated absence on insignificant date to state that the order was ex-parte. In order to assume the character of ex-parte, there must be absence of defendant at the time of hearing, meaning thereby in his absence the Court has proceeded in passing the decree. In short, defendant's voluntary act of not cross examining the party and not advancing arguments, is not capable enough to term the order as 'ex-parte'," the court held.

"If, such view is adopted then most of the suits have to be treated ex-parte, because in each case, on some or other date, the defendant remains absent. One has to see as to what was the consequence of defendant's absence on particular date," the court added.

According to the facts in the first writ petition, the petitioner's land was acquired by the Railways (respondent) for Wardha to Nanded Rail Project. The petitioner, being dissatisfied with the compensation, made reference under section 64 of the Act. The Land Acquisition Authority (First Authority) enhanced the compensation.

The acquiring body Central Railway claimed that the order was ex-parte and filed an application under Order IX Rule 13 with section 151 of the CPC against the order. The same authority (now referred to as Second Authority) quashed the previous orders. Hence the petitioners approached the high court.

Advocate Sawarkar appeared before the First Authority for Railways and filed Written Statement. The First Authority in its order referred to the contents of said written statement. Though Railways did not lead evidence, its evidence affidavit was on record. According to daily records, on the date the advocate for the Railways was not present, the case got adjourned due to his absence. Records indicated that claimant's final arguments were advanced in the presence of the advocate for Railways. The judgment was also passed in his presence.

The First Authority simply adjourned the matter for final arguments meaning it was an inconsequential date, the court said. "One has to see as to what was the consequence of defendant's absence on particular date".

The court said that if Advocate Savarkar had any grievance that he was not heard, he could have approached the First Authority. However, he did not do so, nor has he claimed that the First Authority precluded him from making submissions.

The Second Authority had said in the impugned order that opportunity was denied to the respondent. Further, it said that there was no cross examination even though evidence affidavit was filed by both sides.

The First Authority specifically recorded that it heard arguments of both sides and proceeded in passing the order, the court noted. It wasn't the case of the respondent that the First Authority wrongly quoted in the order or that the Roznama (daily record) was incorrect.

Therefore, it cannot be said that the First Authority did not give fair opportunity to the respondent, the court said.

The bench said that an authority or a Court cannot compel a party to cross examine evidence and a party cannot claim that the order is ex-parte if it chooses not to cross examine. If such view is adopted, one may not cross examine and after judgment seek to set aside the order by calling it ex-parte, the court remarked.

Order IX Rule 13 of the CPC is not applied to cases where defendant remains present but voluntarily decides not to participate, the court said.

The Second Authority had observed that the claimant did not demonstrate that the First Authority decided the case on merits. To this, the court said that it was on the respondent-Railways to establish that the order was ex-parte because it was the one challenging the order. The approach of the Second Authority of casting reverse burden on the claimant is wholly erroneous, the court said.

Even though the Authority can follow its own procedure and is not bound by CPC, it does not mean that it can follow a course which is too novel to be logical, the court said.

The court said the respondent has been unable to demonstrate how the First Authority acted in defiance of the rules of natural justice. One must get a right of hearing, but one cannot be compelled to exercise said right, said the court.

The Central Railways contended that the Land Acquisition Authority has the power to review its own decisions. However, in the present case, Central Railway specifically approached it under Order IX Rule 13 of CPC and not for review of its own order, the court noted. Further, Railways did not claim that there is an apparent error in the order, nor did it come with the discovery of new and important material.

Therefore, the court held the Second Authority made serious error in holding that the orders were ex-parte. Since there is no applicability of Order IX Rule 13, the same authority has no power to set aside its own order and the challenge on merits would fall before the appellate forum and not the same authority, the court said.

Hence, the court quashed the Second Authority's order and upheld the First Authority's order.

Case no. – Writ Petition No. 1667 of 2022

Case Title – Jyoti w/o Mahesh Agrawal v. Deputy Chief Engineer (Construction), Central Railway

Citation: 2022 LiveLaw (Bom) 517