Patna High Court
The Ishwari Sakhari Grih Nirman Samiti & ... vs Registrar, Co-Operative Societ on 21 April, 2011
Author: Rakesh Kumar
Bench: Rakesh Kumar
Miscellaneous Appeal No.578 OF 2010
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Against the judgment dated 22.4.2010 passed
by Sri Man Mohan Choudhary, learned Additional
District Judge - X, Patna in Title Appeal No.
46/2005.
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1. THE ISHWARI SAKHARI GRIH NIRMAN SAMITI THROUGH ITS
SECRETARY SRI ABHAY KUMAR SINHA AT JAGADEOPATH,
GARBHUCHAK, P.S. RUPASPUR, DISTT.PATNA.
2. ABHAY KUMAR SINHA, SECRETARY, THE ISHWARI SAHKARI
GRIH NIRMAN SAMITI AT JAGADEO PATH, GARBHUCHAK, P.S.
RUPASPUR, DISTT. PATNA.
3. SHYAM BABU SINGH S/O SRI BHAGWAT SINGH
4. MOTI DEVI W/O SHYAM BABU SINGH
5. SHASHIBHUSHAN KUMAR
6. SUNIL KUMAR SINGH, BOTH SONS OF SHYAM BABU SINGH
7. LAL BABU SINGH S/O BHAGWAT SINGH
8. PANPATI DEVI W/O LAL BABU SINGH
9. RANBIR KUMAR
10. GIRISH KUMAR, BOTH SONS OF LAL BABU SINGH, ALL
RESIDENT OF VILLAGE DHANDHANCHAK, P.S.
PHULWARISARIF, DISTT. PATNA.
... ... APPELLANTS.
Versus
1. REGISTRAR, CO-OPERATIVE SOCIETIES, VIKAS BHAWAN,P.O.
SECRETARIAT, BIHAR, PATNA.
2. DISTRICT CO-OPERATIVE OFFICER, BUDH MARG,P.O. G.P.O.
DISTT. PATNA.
3. SARASWATI DEVI W/KO GHUMAN SINGH
4. MANISH KUMAR S/O GHUMAN SINGH
5. GHUMAN SINGH S/O LATE KESHAV PRASAD SINGH
ALL RESIDENT OF VILLAGE ASLAN, P.S. GARHAR, DISTT.
BHOJPUR AT PRESENT RESIDENT OF MUHALLA MITHAPUR,
B-AREA, KANNULAL ROAD, P.O. G.P.O., P.S. JAKKANPUR,
DISTT. PATNA.
6. RAJ KISHORE PRASAD S/O LATE MATHURA PRASAD
7. SHOBHA DEVI @ SHEO DEVI W/O LATE ASHOK KUMAR
8. MANISH KUMAR @ PUTTU
9. SARITA KUMARI
10. MOUSMI KUMARI
ALL SON AND DAUGHTERS OF LATE ASHOK KUMAR
11. LAL BABU GUPTA
12. BINOD KUMAR
13. NAND KISHORE PRASAD
14. NAVAL KISHORE PRASAD
15. VIKASH KUMAR GUPTA
16. RANJIT KUMAR GUPTA
ALL SONS OF LATE MATHURA PRASAD
17. SHOBHA DEVI W/O LATE MATHURA PRASAD
18. VIDYA SINGH W/O MAHADEO SINGH
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19. RAM BILAS RAI S/O LATE SHAKHICHAND PRASAD
ALL RESIDENT OF PHULWARISARIF, P.O. + P.S.
PHULWARISARIF, DISTT. PATNA.
... ... RESPONDENTS.
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For the Appellants : Shri B.N.P. Singh, Advocate
For the State : Shri J.S. Arora, S.C.6
For Respondent Nos.
3, 4 and 5 : Shri Shashi Shekhar Dwivedi,
Senior Advocate.
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P R E S E N T
THE HON'BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar,J. Heard Shri B.N.P. Singh, learned
counsel for the appellants, Shri G.S. Arora,
learned Standing Counsel No.6 appearing on
behalf of respondent nos.1 and 2 and Shri
Shashi Shekhar Dwivedi, learned Senior Counsel
appearing on behalf of respondent nos.3, 4 and
5.
2. The present Miscellaneous Appeal has
been preferred under Order XLIII, Rule 1(u) of
the Code of Civil Procedure against judgment
and order dated 22.4.2010 passed by Shri Man
Mohan Choudhary, learned Additional District
Judge-X, Patna in Title Appeal No.46 of 2005,
whereby the learned Judge, while allowing the
appeal remanded the same to the court below for
adjudication of the suit afresh on the basis of
pleadings of the appellants and respondents and
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directed the appellants to file their written
statement in the court below. The learned
appellate court also condoned the delay in
filing the appeal subject to payment of cost of
Rs.2,000/- by each of the appellants.
3. Short fact of the case is that the
plaintiff/appellants filed a suit vide Title
Suit No.426 of 1992 for declaration that the
principal defendants had no title to the suit
land except right to take the balance of
consideration money. The plaintiffs‟ case is
that they had purchased suit land measuring
18.3/4 decimals of land of Plot No.1220 for a
sum of Rs.1,08,000/- out of which Rs.12,000/-
was paid as advance. According to the terms of
the sale deed the title of the land was passed
on the date of execution of the sale deed. The
balance consideration money was to be paid at
the time of Chirkut Badlain (Takawazul
Badlain). After purchasing the land, the
plaintiffs developed the land and made it into
suitable house plots. Same was allotted to its
members. While the price of land in that area
started going up, the principal defendants, one
way or the other, did not complete the
procedure of Chirkut Badlain nor they took the
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balance amount. The plaintiffs‟ further claim
that they also got legal notice served on the
principal defendants, but they did not do the
Chirkut Badlain.
4. In the suit principal defendants
i.e. Defendant Nos.1 to 8a filed written
statement and raised several objections. It was
categorically asserted that there was agreement
for sale dated 6.4.1989 between the heirs of
Mathura Prasad on one side and Ishwari Sahkari
Grih Nirman Samittee on the other for sale of
an area of 2 Acre 23 decimal of different plots
and 12 katha of Plot No.1220 for Rs.15 lakhs
out of which Rs.1,20,2000/- was paid as earnest
money to the executor for the 10 sale deeds in
favour of the plaintiffs. All the 10 sale deeds
were executed by the defendants and his family
members through their attorney, but the balance
consideration money was to be paid at the time
of Takabzul Badlain, which was to be done
within a reasonable time i.e. within one month.
It was further claimed that those defendants
made repeated request for payment of balance
consideration money, but the plaintiffs
avoided. The defendants gave notice to the
plaintiffs and also published the news in
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newspaper „Nav Bharat Times‟ on 16.12.1989 and
when plaintiffs did not pay the consideration
money in time, those defendants executed
registered cancellation deed on 19.11.1990
cancelling the said sale deed. Thereafter,
those defendants had sold most part of the suit
land to different persons by sale deed dated
26.8.1991 and 2.8.1991. The purchasers were
respondent nos.3, 4 and 5 of the present
appeal. However, the learned Sub Judge-IX,
Patna decreed Title Suit No.426 of 1992 in
favour of the plaintiffs on condition that
plaintiffs would deposit remaining
consideration amount of Rs.96,000/- in the
court in the name of defendants.
5. Thereafter, the respondent nos.3 to
5 of the present appeal preferred an appeal
vide Title Appeal No.46 of 2005. The respondent
nos.3 to 5 claimed that despite the fact that
they had purchased the suit land from the
principal defendants i.e. Defendant Nos.1 to 8a
before filing of Title Suit No.426 of 1992
initially they were not impleaded as
defendants. However, subsequently, plaintiffs
amended the plaint and impleaded them as
Defendant Nos.8b to 8d. In the suit, notices
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were never served on the Defendant Nos.8b to 8d
i.e. respondent nos.3 to 5 in the present
appeal nor plaintiffs took any step for
substituted service of notice and behind back
of them the judgment and decree was obtained by
the plaintiffs. It was also alleged that the
principal defendants i.e. Defendant Nos.1 to 8a
went in collusion with the plaintiffs and
thereafter, suit was decreed in favour of the
plaintiffs. At initial stage, the Defendants 8b
to 8d filed a petition under Order IX Rule XIII
of the Code of Civil Procedure for setting
aside ex-parte judgment and decree, which was
numbered as Misc. Case No.4 of 2001. It was
pleaded that due to wrong advise at initial
stage, he could not prefer appeal against the
ex-parte judgment and as such appeal vide Title
AppealNo.46 of 2005 was filed on 3.8.2005 along
with petition under Section 5 of the Limitation
Act read with Section 151 of the Code of Civil
Procedure and finally Title Appeal No.46 of
2005 was allowed by the impugned judgment and
order and matter was remanded back to the court
below.
6. Aggrieved with the impugned order of
remand the appellants approached this Court by
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filing the present Miscellaneous Appeal under
Order 43 Rule 1(u) of the Code of Civil
Procedure.
7. Shri B.N.P. Singh, learned counsel
for the appellants, while questioning the
impugned judgment and order, in some and
substance, has raised two pertinent questions
i.e. delay in filing Title Appeal No.46 of 2005
was condoned in illegal and irregular manner
and same was contrary to provisions contained
in Order 41 Rule 3A of the Code of Civil
Procedure and second that there was no
justifiable cause for passing the remand order.
8. While elaborating his contention
that by the impugned judgment, the court below
had no authority to condone the delay and also
condonation of delay was not sustainable in the
eye of law, it was argued by Shri Singh that
the appeal was preferred after more than five
years from the date of judgment and decree
passed in Title Suit No.426 of 1992. The
judgment and decree in the suit was passed on
28.1.2000 whereas the title appeal was filed on
3.8.2005. It was argued that it is not a case
that the appellants in Title Appeal No.46 of
2005 were not aware regarding the judgment and
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decree passed in the suit, which is evident
from the fact that after the suit was decreed
on 27.7.2001, the respondent nos.3 to 5 of the
present appeal had preferred a Miscellaneous
Case vide Misc. Case No.4 of 2001 under Order
IX Rule 13 of the Code of Civil Procedure for
setting aside the ex-parte judgment and decree.
The plea, which was taken in the limitation
petition, was not sustainable in the eye of
law. Shri B.N.P. Singh, learned counsel for the
appellants has taken this Court to the impugned
judgment to show that in the limitation
petition, a plea was taken that they were
wrongly advised by the conducting advocate and
only after being properly advised by a Senior
Advocate, they came to know that against such
judgment and decree appeal could have been
filed. It was submitted that it is settled
principle of law that ignorance of law is no
excuse and as such on such plea the learned
court below was not required to condone such a
long delay. In support of his argument, Shri
Singh has relied on a recent judgment of the
apex court reported in 2010(5) SCC 459
(Oriental Aroma Chemical Industries Limited Vs.
Gujarat Industrial Development Corporation and
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another). He has specifically referred
paragraphs 15 and 16 of the said judgment. It
was submitted on behalf of the appellants that
in the similar manner in the case of Oriental
Aroma Chemicals Industries limited Case
(Supra), about five years delay was condoned by
the High Court, which was set aside by the
Supreme Court. Taking clue from the said
judgment, Shri Singh has argued that there were
no sufficient cause for condoning the delay and
as such the impugned order to the extent of
condoning the delay is liable to be set aside.
It was further submitted that Title Appeal
No.46 of 2005, which was filed on 3.8.2005 was
admitted without condoning the delay and as per
order of the court below limitation petition
was to be considered at the time of hearing,
which was not permissible in the eye of law
particularly in view of Order XLI Rule 3A of
the Code of Civil Procedure. The said delay was
condoned by the impugned judgment, which was
passed on 22.4.2010. Accordingly, it has been
argued that the learned court below has grossly
erred in entertaining the appeal while allowing
the limitation petition.
9. On the point of non availability of
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justifiable reason for remanding the case to
the court below by the impugned judgment, it
was submitted by Shri Singh that there was no
sufficient reason for the same and as such the
order of remand is not sustainable in the eye
of law.
10. While opposing the appeal, Shri
Shashi Shekhar Dwivedi, learned Senior Counsel
appearing on behalf of respondent nos.3, 4 and
5, at the very outset, has raised preliminary
objection on the argument of learned counsel
for the appellants so far as limitation point
is concerned. It was submitted by Shri Dwivedi
that the present appeal, which has been
preferred under Order XLIII, Rule 1(u) of the
Code of Civil Procedure is confined to the
portion of the impugned judgment to the extent
of its remand. He has specifically referred
Order XLIII Rule 1(u) of the C.P.C., which is
as follows :
" ... an order under rule 23 (or
rule 23-A) of Order XLI
remanding a case, where an
appeal would lie from the decree
of the Appellate Court ..."
11. It was submitted that since the
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present appeal has been preferred under
aforesaid provision, the appellants cannot be
allowed to address the court on the question of
limitation, which was condoned by the court
below. It was argued that the portion of the
impugned judgment relating to condonation of
delay cannot be questioned in the present
proceeding. He submits that the appellants are
not at liberty to question the impugned
judgment on condonation of the delay. It was
submitted by Shri Dwivedi that learned counsel
for the appellants was required to address the
court only on the question of remand by the
impugned judgment. While replying to the
submission of learned counsel for the
appellants that there were no justifiable
reason for remanding the case, it was submitted
that it was the case of the respondent nos.3 to
5, which was corroborated by the written
statement filed by Defendant Nos.1 to 8a that
before filing of Title Suit No.426 of 1992,
respondent nos.3, 4 and 5 of the present
appeal, had already purchased the suit land
after paying full consideration amount.
Thereafter, they also got their house
constructed over the plot in question. They are
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also paying rent through receipt to the
Government and as such there were sufficient
cause and reason for remanding the matter to
the court below granting liberty to those
respondent nos.3 to 5 for filing written
statement. Accordingly, it has been argued that
the present appeal is liable to be rejected.
12. Besides hearing learned counsel for
the parties, I have also perused the materials
available on record. From the impugned
judgment, it is evident that in Title Suit
No.426 of 1992, no notice was validly served on
respondent nos.3, 4 and 5 and as such suit was
decreed without affording any opportunity to
them. Learned Additional District and Sessions
Judge-X, Patna, in its judgment and order dated
22.4.2010, has discussed regarding non service
of notice at page-5 second paragraph and also
at page 6 fourth paragraph, which are necessary
to be quoted below :
" The appellants being the
purchasers of the suit land from
the land owners were made
parties in the suit as deft.
No.8b, 8c and 8d by order dated
14.5.93. The summon and notices 13 were issued against these defendants (appellants) on 27.5.93 and without any service report and without publication of notice in any newspaper the court below fixed the suit for ex-parte hearing against the defendant by order dated 7.7.93 i.e. just after one month ten days of the issuance of summons and notices. There is no evidence on record to show that the process server, Nazarat Peon either personally served the summons on the defendant no.8b to 8d and there is also not any report on the record that they refused to receive the summons. The plaintiff in support of the service of summons neither filed any petition nor any affidavits. The postal notices were also not returned back and tagged with the lower court record. It was bounded duty of the court below to take the evidence of process 14 server and only thereafter the court should have presumed the service against the defendants/appellants. There is also provision of substituted service against the defendants.
Order-XX(1)(B) says "Where the court acting under Sub Rule-1 orders service by an advertisement in a newspaper,
the newspaper shall be a daily newspaper circulating on the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally work for gain". The record shows that there are two addresses one permanent and the other temporary/present are given in the plaint, but the L.C.R. does not show that the summons and notices were issued on both the addresses of the appellants. Therefore it can be said that the summons and notices issued 15 against the appellants were not proper. If the proper notice or summon would have been served against them, they might have appeared in the court below and filed their W.S and contested the suit."
" The lower court record transpires that the learned
court below soon after 30 days of the issuance of summons and notices declared that the summons has been duly served. It was imperative duty of the court below that before declaration of service of summons he should take the affidavit of the serving officer and also record his evidence and in case the service of summon or notice was not proper, under that circumstances he should order for publication as provided U/O V Rule-20(1A) C.P.C. The L.C.R goes to show that no summon either by Nazarat or by post was 16 at all served on these appellants and also without publication of the notices in the newspaper the suit was decided exparte. In view of the aforesaid facts I find that there is nothing on the record to prove that these appellants had any knowledge of the said suit by any means or any summons of the suit was ever served upon these appellants. Thus it is baseless to say that they had allowed the suit to be decreed exparte. In such view of the matter I am of the opinion that the impugned judgment and decree passed in T.S. No.426/92 is not at all binding against the appellants/deft. No.8b to 8d."
13. After going through the impugned order, the court is satisfied that suit was decreed without valid service of notice on Defendant Nos.8b to 8d, who are respondent nos.3, 4 and 5 in the present appeal.
14. Similarly, from the impugned order, 17 it appears that the Defendant Nos.8b to 8d (respondent nos.3 to 5) had claimed that before filing of Title Suit No.426 of 1992, they had already purchased the suit land and thereafter, they got the building constructed over the suit land. It further appears that principal defendants i.e. Defendant Nos.1 to 8a, in their written statement, had claimed that they had cancelled the agreement to sale, which was entered in between them and the plaintiff/Ishwari Sahkari Grih Nirman Samiti and thereafter, they transferred the suit land by different registered sale deeds.
15. In that view of the matter, court is of the opinion that there were sufficient reason for remanding the matter to the court below enabling respondent nos.3 to 5 of the present appeal to file their written statement within specified time.
16. So far as condonation of delay by the court below is concerned, the court is of the opinion that on the ground of limitation, such valuable right of the concerned respondents cannot be defeated. At the time of condoning the delay, liberal approach is to be taken by the court. Time without number, it was held that no 18 hard and fast rule can be laid down for condoning the delay. Facts of the present case are sufficient to indicate that for the ends of justice giving opportunity to the concerned respondents was necessary. From the record, it appears that the concerned respondents i.e. respondent nos.3 to 5 had taken the plea of purchasing the suit land prior to filing of Title Suit No.426 of 1992 and thereafter, they got their house constructed on the suit land and they are also paying rent through receipt. In such situation, court is of the opinion that their right for hearing cannot be defeated on technicality of limitation. So far as oriental Aroma Chemical Industries Limited Case (Supra) is concerned, judgment in the said case was passed in peculiar facts and circumstances of the case, which is evident from paragraph-18 of the said judgment, which is as follows :
"18. A reading of the impugned order makes it clear that the High Court did make a bald reference to the application for condonation of delay filed by the respondents but allowed the same without adverting to the 19 averments contained therein and the reply filed on behalf of the appellant. Not only this, the High Court erroneously assumed that the delay was of 1067 days, though, as a matter of fact the appeal was filed after more than four years. Another erroneous assumption made by the High Court was that the appellant had not filed reply to controvert the averments contained in the application for condonation of delay."
17. Accordingly, the court is of the opinion that the appellants may not get any help from Oriental Aroma Chemical Industries Limited Case (Supra).
18. In view of peculiar facts and circumstances of the present case, the court is of the opinion that for the ends of justice, the learned Additional Judge Judge-X, by the impugned order, has rightly and legally remanded back the matter to the court below and allowed the appeal, which requires no interference by this Court.
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19. Accordingly, the appeal stands dismissed. However, in the facts and circumstances of the case, no order with regard to cost is being passed.
( Rakesh Kumar,J.) PATNA HIGH COURT Dated the 21st April,2011 N.A.F.R./N.H.