Madhya Pradesh High Court
Baobbu Singh vs Smt. Gangaswati on 16 February, 2017
MA-744-2010
(BAOBBU SINGH Vs SMT. GANGASWATI)
16-02-2017
Shri Y.P. Sharma, learned counsel for the appellants.
Shri V.K. Mishra, learned counsel on behalf of Shri K.S.
Baghel, Advocate for the respondents.
This is an appeal filed by the plaintiffs under Order 43 Rule 1 (c ) of the Code of Civil Procedure (hereinafter shall be referred as the 'CPC') challenging the legality and validity of the order dated 21/12/2009 passed by First Additional District Judge, Sidhi in MJC No. 64/2006 whereby the application filed by the appellants/plaintiffs under Order 9 Rule 9 of CPC has been rejected.
The facts, in narrow compass, are that the appellants/plaintiffs filed a civil suit for declaration and permanent injunction and also for declaration of sale deed and mutation proceedings as null and void. The defendant filed the written statement on 10/04/1997 and the issues were framed on 23/12/1997. The case was fixed for evidence and the counsel for the appellants was not present in the case and the suit has been dismissed in default on 8/12/1999. The appellants filed an application under Order 9 Rule 9 of read with section 141 of CPC and also under Order 17 Rule 2 for setting aside the order dated 31/10/2006 and restoration of civil suit no. 17-A/99 alongwith an application u/s 5 of Limitation Act for condonation of delay. It was contended that the file was entrusted to the Advocate who failed to inform them that the suit was dismissed in default on 8/12/1999. The appellants have always been in contact with the counsel who was representing them namely Shri G.K. Singh however, the counsel did not inform them the correct status of the suit and kept them in dark. On 8/12/1999, counsel had wrongly pleaded no instructions and the suit was dismissed that he had not informed them. On 30/09/2006, the counsel asked the appellants to collect the revenue record for filing of the new suit. Then the appellants inquired about the civil suit and after inspection of the record they came to know on 5/10/2006 that the suit has been dismissed for want of prosecution on 8/12/1999. Immediately they had applied for certified copy of the order and after receiving the copy on 13/10/2006, an application for restoration was filed on 31/10/2006 alongwith an application for condonation of delay supported by an affidavit. The trial Court has dismissed the application for condonation of delay mainly on the ground that there is delay of seven years and the cause shown in the application does not show any sufficient cause for condonation of delay as the appellants have made allegation of negligence against the Advocate who was representing them but they had not taken any action against the said Advocate by making any complaint against him. Counsel for the appellants further submits that a litigant should not be allowed to suffer because of the mistake or lapse of an Advocate.
Per contra, counsel for the respondents submits that the order passed by the court below rejecting the application under Order 9 Rule 9 of CPC and the condonation of delay is valid and do not suffer from any illegality. From the affidavit filed by Babbu Singh, the appellant, it is found that there was specific statement that the matter was entrusted to Advocate Shri G.K. Singh and then in para 3 he had made specific statement that till 5/10/2006 there was no intimation or communication by the Advocate to him regarding dismissal of the case for want of prosecution on 8/12/1999. It is specifically stated in para 7 that the appellants came to know about the dismissal of suit for want of prosecution only on 30/09/2006 when he was asked by his Advocate to collect revenue papers to file a civil suit. Only at that stage, they could smell something foul in the proceedings and, thereafter, the prompt actions were taken by them for restoration.
There is no contrary material placed and proved by the respondents to these averments. The only issue in the present case is that whether the appellants could make out a sufficient cause for setting aside the order of dismissal of suit in default and also for condonation of delay for restoration. The court below has rejected the application mainly on the ground that since the appellants have failed to take any action against the Advocate by filing a complaint or taking action for professional misconduct, I am of the view that while taking into consideration the sufficient cause for consideration of the application under Order 9 Rule 9 of CPC, the court ought to have considered that whether from the pleadings and evidence adduced by the appellants, sufficient cause has been shown regarding their absence or any participation in the proceedings. The issue of making a complaint against Advocate or taking action for professional misconduct would not have been relevant for consideration of expression 'sufficient cause'. By those proceedings against the Advocate, the appellants could have only prosecuted the Advocate for professional misconduct or could have claimed compensation but the suit would not have been restored in those proceedings. The expression 'sufficient cause' has been held in number of judgments by the Apex Court to receive liberal construction so as to advance substantial justice. In the case of dismissal of suit for want of prosecution, the Apex court has held in para 13 of the case of N. Balakrishnan Vs. M. Krishnamurthy, AIR 1998 SC 3222 as under:-
â13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.â In the case of GMG Engineering Industries and others Vs. ISSA Green Power Solution and others, (2015) 15 SCC 659 in para 7 it is held as under:-
7. It is well settled that the expression âsufficient causeâ is to receive liberal construction so as to advance substantial justice.
When there is no negligence, inaction or want of bonafide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence Similarly in the case of Dilip Kumar Sharma Vs. Ankam Nageswara Rao and others, (2015) 14 SCC 555, the Apex Court has held that in the case of dismissal of suit for want of prosecution, liberal approach has to be adopted. In the case of Rafiq and another Vs. Munshilal and another, (1981) 2 SCC 788 and Ram Kumar Gupta and another Vs. Har Prasad and another, (2010) 1 SCC 391, the Apex Court has held that litigant should not suffer for the mistake of counsel. In view of the law laid down by the Apex Court in the cases of N. Balakrishnan Vs. M. Krishnamurthy (supra) and GMG Engineering Industries and others Vs. ISSA Green Power Solution and others (supra), I find that the appellants have made out sufficient cause to allow the appeal. Accordingly, the impugned order is set aside and the appeal is allowed. Delay in filing the application to set aside the ex- parte decree is condoned and the order dated 8/12/1999 dismissing the suit and the impugned order dated 21/12/1999 are set aside. Appellants are further directed to deposit the cost of Rs. 3000/- which is to be paid to the defendants. The trial Court will make all endeavour to conclude the trial of the suit as expeditiously as possible within a period of six months from the date of submission of the certified copy of the order. Certified copy as per rules.
(VIJAY KUMAR SHUKLA) JUDGE navin