Gauhati High Court
Md. Amiratddin; vs Md. Muhibul Hussain on 21 March, 2022
Author: Robin Phukan
Bench: Robin Phukan
Page No.# 1/14
GAHC010059102020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP 39/2020
1. Md. Amiratddin;
2. Md. Moni Ali;
3. Md. Syed Ali;
4. Md. Eyakat Ali;
5. Md. Sariful Ali; all sons of Late Rahimaddin, R/o Batiporia
Gaon, P.O. Batiporia, Mouza-Gujugankia, P.S. Dergaon, District
Golagha, Assam. PIN-785621
6. Mst. Majoni Begum, W/o Md. Nurul Hussain, R/o Rangdhali
Gaon, P.O. Batiporia, P.S. Dergaon, District Golaghat, Assam.
PIN 785621.
...PETITIONERS
VERSUS
Md. Muhibul Hussain, S/o Late Abdul Adut, R/o Rangdhali
Gaon, P.O. Batiporia, P.S. Dergaon, Mouza-Gurjugania,District
Golaghat, Assam. PIN-785621.
...RESPONDENT
Page No.# 2/14 Advocate for the Petitioners : Mr. B. Chetri Advocate for the Respondents : Ms. P. Bhattacharya :::BEFORE:::
HON'BLE MR. JUSTICE ROBIN PHUKAN Date of hearing : 09.02.2022 Date of verdict : 21.03.2022 VERDICT (CAV)
1. In this petition, under Section 115 of the Code of Civil Procedure, the petitioners - Md. Amiratddin & 5 Ors., have put to challenge the judgment and order, dated 19.11.2019, passed by the learned Civil Judge, Golaghat in Misc.
Appeal No. 1/2018. It is to be noted here that vide the impugned judgment and order, the learned Civil Judge had affirmed the order dated 13.09.2018, passed in Misc. (J) Case No. 04/2018, arising out of T.S. No. 7/2015, by the learned Munsiff No. 1, Golaghat, whereby, the learned Munsiff No. 1, Golaghat, had dismissed the petition filed by the petitioners under Order 9 Rule 13 of the CPC.
2. The factual background leading to filing of the present petition is adumbrated herein below:-
Page No.# 3/14 "The respondent, as plaintiff, instituted a title suit, being T.S. No. 07/2015, in the Court of Munsiff No.1, Golaghat, against the present petitioners, as defendants, for declaration of right, title and interest and recovery of Khas possession by evicting the petitioners in respect of the suit land, measuring 1 bigha covered by the P.P. No. 223 at village Rangdhali Gaon, P.O. Batiporia, P.S. Dergaon, Mouza-Gurjugania, District Golaghat, Assam, as on 03.05.2012, the petitioners trespassed into the suit land and started construction of house thereon. The petitioners also contested the suit by filing their written statements stating inter alia that defendant Nos. 1 to 7 and the defendant no. 9 jointly purchased 5 Bighas of land out of 12 Bighas 1 Katha 13 Lechas of land covered by P.P. No. 223 at village Rangdhali Gaon, P.O. Batiporia, P.S. Dergaon, Mouza-Gurjungania, District Golaghat, Assam, from its original owner, Tankeswar Kalita, by executing a registered Sale Deed on 15.03.1993. By dint of the said Sale Deed the defendant No. 8 to 11 have been residing in the house constructed over the suit land. Hence, the defendants prayed for dismissal of the suit and also filed a counter claim praying for declaration of joint right, title and interest over the purchased land. However, the suit was proceeded ex-parte against the defendants on 01.09.2016, as on that day no steps were taken by their counsel. Thereafter, the learned Court of Munsiff No. 1, Golaghat, decreed the suit ex-parte, vide judgment and decree dated 25.05.2017 and it was only on 05.04.218, when the Court Najir along with the Mandal went to the suit land to execute the decree that was passed in T.S. No. 07/2015, corresponding to title Execution No. 6/17, the petitioners came to know that the learned Court of Munsiff, Golaghat, passed an ex-parte judgment and decree, dated 25.05.2017, against the petitioners. However, the Court Najir on that day could not execute the decree due to some technical ground and, thereafter, the petitioners Page No.# 4/14 immediately collected the certified copy of the relevant order of the proceedings of the title suit from the office of the learned Munsiff No. 1, Golaghat, and discovered that their engaged counsel, Sri Prakash Ranjan Saikia, did not take any steps in the case and for his fault/conspiracy, the suit was decreed ex-parte. The petitioner then engaged another counsel, namely, D. Talukdar, and on 24.04.2018, filed one application under Order 9 Rule 13 of the CPC before the learned Munsiff No. 1, Golaghat, for setting aside the judgment and decree dated 25.05.2017, along with an application for condonation of delay of 303 days under Section 5 of the Limitation Act, which was registered as Misc. (J) Case No. 04/18. However, the learned Munsiff, vide order dated 13.09.2018, dismissed the said petition holding that the delay was not explained properly.
Then, being aggrieved by the said order dated 13.09.2018, the petitioners preferred an appeal, being Misc. Appeal No. 01/2018, before the learned Civil Judge, Golahat. The learned Civil Judge, Golaghat, however, dismissed the appeal, vide judgment and order dated 19.11.2019, affirming the order dated 13.09.2018, passed in Misc. (J) Case No. 04/2018, arising out of T.S. No. 7/2015, by the learned Munsiff No. 1, Golaghat.
3. Being aggrieved by the impugned judgment and order dated 19.11.2019, the petitioners have preferred this revision petition on the following grounds:-
(i) That, the learned Court below failed to appreciate that the petitioners are the absolute owner and possessor of the land in question by dint of a registered Sale Deed, dated 15.03.1993, executed by the original owner;
Page No.# 5/14
(ii) That, the learned Trial Court as well as the learned Appellate Court, without considering the cases of the parties and the documents laid before it, had rejected the petitions filed by the petitioners and the impugned order, dated 19.11.2019, is not sustainable in law because the same is biased and full of mere technicalities instead of being based on legal grounds;
(iii) That, it has been held that all the rules or procedures are the handmaid of justice and not the mistress and as such, the learned Trial Court, while rejecting the petition against the ex-parte judgment and order dated 13.09.2018, taken resort to the Section 123 of the Limitation Act and the same was affirmed by the learned Appellate Court, vide judgment and order dated 19.11.2019, holding that the explanation offered by the petitioners that they were prevented due to lapse of their engaged counsel is not a plausible explanation for the period from 13.10.2017 to 05.04.2017, is not tenable in law because the petition was supported by affidavit;
(iv) That, admittedly the defendants filed their written statement denying the claim of the plaintiff averred in his plaint and the Title Suit No. 07/2015 was decreed ex-parte without going into the merit of the case, as per settled law, and as such, the learned Court below acted illegally in falling to exercise its inherent power under Section 151 of the CPC for the purpose of advancing the cause of justice in the facts and circumstances of the case;
(v) That, the learned Court below acted illegally in interpreting the provisions of the Order 9 Rule 13 of the CPC and the impugned Page No.# 6/14 order, dated 19.11.2019, was passed illegally inasmuch as the learned Appellate Court below did not apply its mind to the provisions of Order 43 Rule 1 of the CPC while considering the facts and circumstances of the case on affirming the order passed by the learned Trial Court;
(vi) That, the learned Court below, instead of taking liberal view to decide the matter on merit and on a valid and reasonable ground and due to the fault/conspiracy of the conducting counsel, and on unfounded technicalities, took the adverse view in the matter;
(vii) That, the petitioners were in possession of the land, having valid land documents, since the year 1993, and they are illiterate persons and were not aware of receipt of execution notice on 13.10.2017 and their signatures might have obtained fraudulently and the petitioners came to know about the ex-parte decree, dated 25.05.2017, only on 05.04.2018, through the Nazir of the Court while he came to their house for report; and therefore, it is contended to allow the petition by setting aside the impugned judgment and order dated 19.11.2019, passed by the learned Civil Judge, Golaghat in Misc. Appeal No. 1/2018."
4. I have heard Mr. B. Chetri, learned counsel for the petitioners and Ms. P. Bhattacharya, learned counsel for the respondent.
5. Mr. B. Chetri, learned counsel for the petitioners, submits that there was delay of 303 days in filing the petition under Order 9 Rule 13 of the Code of Civil Procedure before the learned Munsiff No. 1, Golaghat, and an application was Page No.# 7/14 also filed under Section 5 of the Limitation Act for condoning the delay, but the learned counsel below, on technical ground, had dismissed both the petitions. Mr. Chetri, learned counsel for the petitioners, further submits that it was the fault of the lawyer of the petitioners to inform the petitioners about the ex parte judgment of the learned Munsiff No. 1, Golaghat, and because of the fault of the Advocate, the petitioners should not suffer and mere technicalities should not stand in the way of getting justice by the petitioners. Mr. Chetri, learned counsel for the petitioners, further submits that one appeal was preferred before the learned Civil Judge, Golaghat, and the learned Civil Judge, Golaghat, also upheld the order of the learned Munsiff No. 1, Golaghat, on the technical ground. Mr. Chetri, therefore, contended to allow this petition by setting aside the impugned judgment and order of the learned Civil Judge, Golaghat as well as of the learned Munsiff No. 1, Golaghat. Mr. Chetri, learned counsel for the petitioners, has referred a case law of Hon'ble Supreme Court in N. Balakrishnan Vs. M. Krishna Murthy [(1998) 7 SCC 123] to contend that sufficient reason for extending the delay in filing the petition should be construed liberally on the non-action on the part of the advocate. Mr. Chetri also referred another case of Hon'ble Supreme Court in Rafiq & Anr. Vs. Munshilal & Anr.: (1981) 2 SCC 788 to contend that the petitioners should not be allowed to suffer injustice merely because of the default of their engaged advocate.
6. Per contra, Ms. P. Bhattacharya, learned counsel for the respondent, submits that the impugned judgment and order of the learned Civil Judge, Golaghat, as well as of the learned Munsiff No. 1, Golaghat, suffers from no infirmity requiring any interference of this Court. Ms. Bhattacharya further submits that though a plea has been taken by the petitioners that on account of Page No.# 8/14 default of engaged counsel of the petitioners the ex parte order was passed by the learned Court below and that the petitioner came to know about the passing of the ex parte judgment and decree on 05.04.2018, yet, the order of the learned Munsiff No. 1, Golaghat, reveals that in the Execution Case No. 06/2017, notice was issued to the petitioners and the petitioners have duly received the same on 13.10.2017 and since 13.10.2017 till 05.04.2018, the delay has been explained by the petitioners and as such, the impugned judgments and orders suffers from no infirmity. Ms. Bhattacharya, learned counsel for the respondent, has referred following 2 (two) case laws of Hon'ble Supreme Court in support of her submission.
(i) Subodh Kumar vs. Shamim Ahmed, reported in MANU/SC/0140/2021; and
(ii) Mata Din vs. A. Narayanan, reported in MANU/SC/0621/1969.
7. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the ground taken by the petitioners in this petition and also the impugned order of the learned Munsiff No. 1, Golaghat, in Title Suit No. 07/2015 and Title Execution Case No. 06/2017, and the judgment and order of the learned Civil Judge, Golaghat, dated 19.11.2019, and I find sufficient force in the submission of Ms. P. Bhattacharya, learned counsel for the respondent.
8. It appears that the respondent, being the plaintiff, instituted the Title Suit for declaring right, title and interest over the suit land on 05.06.2015. Thereafter, the petitioners, being the respondents, appeared before the learned Page No.# 9/14 Court below and submitted written statement and counter claim on 01.10.2015. But, on 01.09.2016, the petitioners remained unrepresented for which, the learned Court below decided to proceed with the case ex parte and vide impugned ex parte judgment and order, dated 25.05.2017, declared the right, title and interest over the suit land in favour of the respondent. It also appears that thereafter the respondent instituted a Title Execution Case, No. 06/2017 before the learned Munsiff No. 1, Golaghat, and the learned Munsiff No. 1, Golaghat, had issued notice on 11.09.2017 and the said notice was duly served upon the petitioners and returned on 18.11.2017 with a report that the petitioners received the notice on 13.10.2017. Thereafter, as the petitioners had not appeared before the learned Court below and filed no objection, the learned Court below has sent the Nazir of the Court along with Mondal for execution of the decree on 05.04.2018. But, the same could not be executed on that day due to the resistance of the petitioners. It also appears that on 24.04.2018, one application under Order 9 Rule 13 of the Code of Civil Procedure was filed before the learned Munsiff No. 1, Golaghat, with a petition under Section 5 of the Limitation Act for condonation of delay of 303 days in filing the Application on the ground that the engaged counsel of the petitioners have defaulted in informing them and that the ex parte judgment was pronounced on 25.05.2017, but the learned Munsiff No. 1, Golaghat, left unconvinced by the said ground and hold that in the Execution Case, notice was duly served upon the petitioners on 13.10.2017, and since 13.10.2017, till 05.04.2018, the petitioners have failed to explain the delay.
9. Though it is contended that on account of default of the engaged counsel they could not come across about the ex-parte judgment dated 25.05.2017, yet Page No.# 10/14 it is apparent that they came to know about the same on 13.10.2017, when they have received the notice of execution case. Despite, they preferred the petition on 24.04.2018, stating that they came to know about the ex parte decree on 05.04.2018, when the Nazir and Mondal went for execution of the decree. Such a averment is found to be not believable on the face of the record. Thus, the period from 13.10.2017, till 24.04.2018 remained unexplained.
10. It further appears that the learned Civil Judge, Golaghat, in whose Court the petitioners preferred the appeal, being Misc. Appeal No. 01/2018, after hearing both the parties, upheld the order of the learned Munsiff No. 1, Golaghat, dated 13.09.2018 and held that the delay since 13.10.2017 till 05.04.2018 is neither explained nor pleaded in the condonation petition and, therefore, dismissed the appeal and upheld the impugned order of the Munsiff.
11. It may be mentioned here that in the case of Subodh Kumar (supra), the Hon'ble Supreme Court has held that application under Order 9 Rule 13 can be allowed only when sufficient cause is made out to set aside the ex parte decree. It is also held that as no sufficient cause was made out to set aside the ex parte decree, Hon'ble Supreme has held that the approach of the High Court cannot be said to be correct exercise of jurisdiction under Article 226 of the constitution of India where categorical findings had been recorded against the tenant.
12. In Mahabir Singh Vs. Subhash & Ors. reported in (2018) 1 SCC 358, the Hon'ble Supreme Court, in paragraph Nos. 6 & 8, has held as under:
Page No.# 11/14 "6. The approach of the High Court, in our opinion, was not correct. There exists a presumption that the official act was being done in ordinary course of business. Admittedly, an ex parte decree was passed. The defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit ex parte.
8. Thus, even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, it was for the respondent-defendant to establish as to when he came to know about the passing of the ex parte decree. Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one-and-a-half years prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex parte decree. The period of limitation would, thus, be reckoned from that day.
As the application under Order 9 Rule 13 of the Code of Civil Procedure was filed one-and-a-half years after the first respondent came to know about passing of the ex parte decree in the suit, the said application evidently was barred by limitation."
Page No.# 12/14
13. In the case in hand, it has already been discussed and held that in the Execution Case No. 06/2017, notice was issued on 11.09.2017 by the learned Court below to the petitioners, who were the judgment debtor in the said case, and the same returned after service on 18.11.2017, with a report that the notice was served upon the petitioners on 13.10.207 and as such, 13.10.2017 is the date of knowledge of the petitioners about the passing of the ex parte decree and the petitioners preferred the application under Order 9 Rule 13 of the Code of Civil Procedure on 24.04.2018 stating that they came to know about the passing of the execution of the decree on 05.04.2018. The said averment appears to be not correct and for the period from 13.10.2017 till 05.04.2018, no explanation has been offered. Though an excuse has been shown in the petition that the signatures of the petitioners on the notice might have been obtained fraudulently and that the petitioners are illiterate person, yet, no such ground has been taken before the learned Munsiff No. 1, Golaghat, and also before the learned Civil Judge, Golaghat, and the same has not been pressed before this Court also. Therefore, the delay in filing the petition from 13.10.2017 till 05.04.2018 remained unexplained.
14. Though, it appears that since passing of the ex parte judgment and order dated 25.05.2017, till 13.10.2017, the delay may be attributed to the counsel of the petitioners, for not informing them about the passing of the ex parte decree is a acceptable contention, which Mr. B. Chetri, the learned counsel for the petitioners had raised, and the ratios laid down in the case law i.e. Rafiq & Anr.(supra) referred by him supports his submission, yet, the remaining part Page No.# 13/14 of the delay from 13.10.2017, till 05.04.2018, left unexplained. In the case of N. Balakrishnan (supra), Hon'ble Supreme Court has held that 'sufficient reason' for extending the delay in filing the petition should be construed liberally on the non-action on the part of the advocate. Besides, there is no general proposition that mistake of counsel by itself is always a sufficient ground. In the case of Mata Din (supra), by the Hon'ble Supreme Court has held that:-
"6. The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation."
15. But, when there is no explanation for the delay from 13.10.2017, till 05.04.2018, I am of the view that liberal construction thereof does not arise. There is concurrent finding of the learned courts below that the petitioners have received the notice of execution on 13.10.2017. Though an attempt is being made to establish that the petitioners are illiterate persons and were not aware Page No.# 14/14 of receipt of execution notice on 13.10.2017 and their signatures might have obtained fraudulently and the petitioners came to know about the ex-parte decree, dated 25.05.2017, only on 05.04.2018, through the Nazir of the Court while he came to their house for report, yet such a contention is found to be far from satisfactory. Besides, no such contention is made before the learned courts below. It is made for the first time before this court.
16. Having tested the impugned order of the learned Munsiff No. 1, Golaghat, dated 13.09.2018 and the judgment and order of the learned Civil Judge, Golaghat, dated 19.11.2019, in Misc. Appeal No. 01/2018, on the touchstone of the principle discussed hereinabove, this Court left unimpressed that the impugned judgment and orders suffers from any infirmity or illegality requiring any interference of this Court.
17. In the result, I find no merit in this petition and, accordingly, the same stands dismissed. The parties have to bear their own costs.
18. Stay, if any, granted earlier, stands vacated.
JUDGE Comparing Assistant