Madhya Pradesh High Court
Sheikh Nafees vs Pradeep Verma on 5 July, 2017
CR-5-2016
(SHEIKH NAFEES Vs PRADEEP VERMA)
05-07-2017
Shri Khalid Noor Fakhruddin, Advocate for the applicant.
Shri Gyanendra Singh Baghel with Shri Vikas Sharma,
Advocate for respondent No. 1.
Shri Anubhav Jain, PL for respondent No. 2/State. This revision under Section 115 of the CPC has been filed arising out of the order dated 28.11.2015 passed by Civil Judge Class I, Bareli, District Raisen allowing the application under Section 5 of the Limitation Act filed along with the application under Order 9 Rule 13 of the CPC for setting aside the ex-parte decree dated 3.4.2007.
On perusal of the facts of the case, it reveals that a suit for specific performance was filed by the applicant, which was decreed ex-parte against non-applicant No.1. Non-applicant No. 1 came to know about the said ex-parte decree on 21.4.2015 when he appeared in a criminal case in the same Court. On coming to know about the ex-parte decree passed against him, he applied for the certified copy, which was obtained on 25.4.2015. Thereafter due to ailment, the delay occurred in filing the application under Order 9 Rule 13 of the CPC, which was filed on 8.7.2015. The trial Court condoned the delay allowing the application under Section 5 of the Limitation Act taking note of the fact that from the date of knowledge till filing of the application under Order 9 Rule 13 of the CPC there was a delay of two and half months and looking to the ailment, it deserves to be condoned.
Learned counsel for the applicant contends that non- applicant No. 1, who was frequently attending the Court proceedings either before the trial Court or before the High Court and visiting upto to Mumbai to take treatment of his ailment, may have knowledge of the ex-parte decree passed against him by the trial Court. In addition, even from the date of knowledge till filing of the application, day to day delay has not been explained, however, there is no bonafide on the part of non-applicant No. 1 to get condoned the delay, therefore, the trial Court committed error to allow the application under Section 5 of the Limitation Act filed by non-applicant. In support of his contention, learned counsel for the applicant has placed reliance on the Division Bench judgment of this Court in Mst. Shabana Anjum and others Vs. Mohd. Sulman and others reported in 2017(2) MPLJ 232. Reliance has also been placed on the Division Bench judgment of this Court in State of M.P. and another Vs. Abdul Gani reported in 2014 (3) MPLJ 265, judgments of the Apex Court in the case of Office of the Chief Post Master General and others Vs. Living Media India Ltd. and another reported in AIR 2012 SC 1506, Sushil K. Chakaravarty (D) through LRs Vs. M/s Tej Properties Pvt. Ltd. reported in AIR 2013 SC 1732 and Balwant Singh (Dead) Vs. Jagdish Singh and others reported in AIR 2010 SC 3043 and also on single Bench judgments of this Court in Brijesh Kumar Gupta Vs. Mahendra Kumar Jain (deceased) through LRs reported in 2014(1) MPLJ 665, State of M.P. Vs. Ranjana Yogi reported in 2014 (4) MPLJ 1 and State of M.P. Vs. Ramkali Bai reported in 2015 (1) MPLJ 286. In view of the aforesaid, it is urged that the impugned order may be set aside.
On the other hand learned counsel representing non- applicant No. 1 contends that the ex-parte decree was passed on 3.4.2007. Non-applicant No. 1 was unaware regarding the said ex-parte decree, which came to his knowledge on 21.4.2015, he immediately applied for the certified copy, which was obtained on 25.4.2015 and the application for setting aside the ex-parte decree was filed on 8.7.2015. The delay occurred from the date of knowledge till filing of the application is due to ailment because non-applicant No. 1 was suffering from heart disease to which he underwent the operation. However, in such circumstances, the trial Court has rightly condoned the delay and the application under Order 9 Rule 13 of the CPC is yet to be decided. In view of the aforesaid, it is urged that interference in this revision is not warranted.
After hearing learned counsel for both the parties and on perusal of the explaination of defendant/non-applicant No. 1, which appears to be bonafide, however, the trial Court has rightly condoned the delay from the date of knowledge of the ex-parte decree passed against non-applicant No. 1 till filing of the application for setting aside the same.
In the said facts the judgments as relied upon by the learned counsel for the applicant are required to be dealt with. In the case of Mst. Shabana Anjum and others (supra) there was inordinate delay of 1579 days in preferring appeal to which sufficient cause was not shown. In the case of Abdul Gani (supra), the delay was of 516 days wherein the Court found lethargy on the part of the Government officials to prefer appeal. In the case of Chief Post Master General and others (supra) the fact remains that delay of 427 days was there but to obtain certified copy of the judgment of the High Court, the parties have taken four months' time, however, certified copy was applied after the period of limitation. In the case of Sushil K. Chakaravarty (D) through LRs (supra) in a suit for specific performance, ex-parte decree was passed wherein the plea was taken regarding unawareness of the suit proceedings but the Court found the said plea as falsified because one of the legal heirs had taken action against the same. In the case of Balwant Singh (Dead) (supra) the Apex Court has explained the meaning of sufficiency of the cause and liberal approach observing the fact that it do not mean to cause injustice to the opposite party. In the case of Brijesh Kumar Gupta (supra), the Court found that the party came before the Court has not come with the clean hands making incorrect and misleading statements, however, in absence of bonafide, delay was not condoned. In the case of Ranjana Yogi (supra), there was absolutely no explanation why appeal could not be filed and in the case of Ramkali Bai (supra), lethargy was found on the part of the State Government, however considering those aspects the Court dealt with the issue refusing to condone the delay.
In the facts of the present case as discussed above, it is apparent that the ex-parte judgment and decree was passed on 3.4.2007 against non-applicant No. 1, which came to his knowledge on 21.4.2015 when in the same Court he appeared in a criminal case on his own. Immediately after getting the knowledge, he applied for certified copy, which was obtained on 25.4.2015 and on 8.7.2015, the application for setting aside the ex-parte decree was filed along with the application seeking condonation of delay attaching the documents of his ailment regarding heart disease. In my considered opinion, in the facts of the present case the judgments as relied upon by the learned counsel for the applicant are having no application, therefore, it is to be held that the trial Court has not committed any error while passing the order impugned condoning the delay to file application under Order 9 Rule 13 of the CPC.
Accordingly, the revision filed by the applicant is devoid of merit, hence dismissed.
(J.K. MAHESHWARI) JUDGE PB