Himachal Pradesh High Court
Harbans Lal (Deceased) Through vs Vidya Devi And Others on 6 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.16 of 2010.
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Judgment reserved on:02.05.2019.
Date of decision: 6th May, 2019.
Harbans Lal (deceased) through his LRs Rajinder Kumar and others .....Plaintiffs-Petitioners.
Versus Vidya Devi and others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1. No For the Petitioners : Mr. K.D.Sood, Senior Advocate with Mr. Rajneesh K. Lal, Advocate.
For the Respondent : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Verma, Advocate, for respondents No.1 to 3, 5 and 6.
Tarlok Singh Chauhan, Judge This revision petition under Section 115 CPC is directed against the order passed by the learned District Judge, Hamirpur, on 21.11.2009 ('impugned order'), whereby he affirmed the order passed by the learned trial 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 2 Court on 30.06.2006, dismissing the application for restoration of the suit which was dismissed in default.
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2. Brief facts leading to the filing of the present petition are that the predecessor-in-interest of the present petitioner Harbans Lal and Yog Raj filed a suit for permanent prohibitory injunction against the respondents before the trial Court at Hamirpur and on 20.05.1996, the suit was decreed for possession of the house situated on the suit land by way of ejectment and further the respondents were restrained from raising construction on the suit land.
3. Aggrieved by the judgment and decree passed by the learned trial Court, the respondents filed an appeal before the learned first appellate Court i.e. Additional District Judge, Hamirpur, who vide his judgment dated 24.05.2003 allowed the same and remanded the case to the learned trial Court for decision afresh with a further direction to afford opportunities to the parties to lead evidence on the additional issues framed. The parties were directed to appear before the learned trial Court on 08.07.2003.
4. Aggrieved by the said order, the predecessor-in-
interest of the petitioners filed FAO No. 357/2003 before ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 3 this Court. On 28.07.2003, notices were issued to the respondents and further proceedings before the learned trial .
Court were ordered to be stayed till the next date which was fixed for 12th of September, 2003.
5. It is conceded that the stay order was not extended after 12.09.2003 and when the case was taken up on 09.10.2003 by the learned trial Court, the suit filed by the plaintiffs came to be r dismissed in default and non-
appearance of the plaintiffs.
6. It is vehemently argued by Shri K.D.Sood, Senior Advocate, assisted by Shri Rajneesh K.Lal, Advocate, for the petitioners that the impugned order passed by the learned trial Court is extremely harsh taking into consideration the fact that the petitioners were under a bonafide belief that the proceedings in the Court below had been stayed and, therefore, non-appearance of the petitioners on the date was neither willful nor deliberate or for that matter be termed to be intentional.
7. On the other hand, Shri G.D.Verma, Senior Advocate, assisted by Shri B.C.Verma, Advocate, for the respondents would argue that the petitioners have not approached this Court with clean hands as they were fully ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 4 aware of the fact that the stay order passed was only operative up to 12.09.2003 and not thereafter unless and .
until the same was further extended and the petitioners having failed to get the stay order extended, no fault can be found with the impugned order. The petitioners have only themselves to blame and cannot be heard to complain against the impugned order.
I have heard the learned counsel for the parties and have also gone through the records of the case.
8. It would be noticed that when FAO No.357/2003 came up for consideration before this Court, the following order came to be passed:-
"Issue notice in the appeal as well as in CMP No.629 of 2003 to the respondents, returnable for 12-9-2003 to show cause why this appeal be not heard and finally disposed of at the admission stage looking to the controversy involved in it. Notices will be given dasti to the appellants/their learned counsel for getting the respondents served for the said date through the process serving agency of the court concerned. Steps to be taken within two days and notices will be delivered during the course of this week.
Subject to any order that can be passed after hearing the opposite side, in the interim, further proceedings in the court of Senior Sub Judge, ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 5 Hamirpur in civil suit No.111 of 1990, titled Tirthu Devi through Harbans Lal and another vs. Smt. Surmi .
Devi and others, will remain stayed till the next date. Copy dasti."
9. The matter thereafter came up for consideration before the learned trial Court on 16.08.2003 and in view of the order already passed by this Court on 28.07.2003, the learned trial Court simply adjourned the matter by passing the following order:-
"16.08.03 Pre: Sh. Neel Kamal, Csl for plaintiff.
Sh. S.K. Kanwar, Csl for defendant No.6.
A copy of order dated 28.7.2003 passed on FAO (Ord) 357/03 received which is placed on record. Per order of HHC, the proceedings in suit stand stayed till the next date i.e. 12.9.2003. To come up for further order on 23.9.2003."
Sd/-
Senior Sub Judge, Hamirpur(H.P.)"
10. Admittedly, when the matter came up for consideration on 12.09.2003, the stay order was not extended.
11. The case thereafter came up before the learned trial Court on 23.09.2003, however, since the P.O. had ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 6 relinquished the charge, therefore, the case was posted for further orders on 26.09.2003.
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12. In the meanwhile, FAO No. 357/2003 came up for consideration before this Court on 24.09.2003 and the following order came to be passed:-
"As per office report, all the respondents served.
This appeal is admitted for hearing, however, it is clarified that looking to the controversy involved in it, it needs to be disposed of at the threshold immediately after the service of the respondents is complete. Because its pendency is not in the interest of either parties. Let DASTI notices be given to appellants/their learned Counsel for getting served respondents No. 4 and 6 to 12, returnable for 12.12.2003, when the case will be listed in Court. Notices will also be served through the process serving agency of the Court concerned. Steps for service to be taken during the course of this week."
13. It would be noticed that even on this date, the stay order which was operative till 12.09.2003 was not got extended.
14. Thereafter, the case was taken up by the learned trial Court on 26.09.2003 and the following order came to be passed:-
::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 7"26.9.2003 Present: Sh. Neel Kamal, Csl for plaintiff.
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Sh. S.K. Kanwar, Csl for defendant.
Proceedings in suit in question were stayed till 12.9.2003. No further orders qua stay has been received till now. To come up for filing of further order qua stay, if any, on 9.10.2003."
Sd/-
Senior Sub Judge, Hamirpur(H.P.)"
15. Notably, all the aforesaid orders of the learned trial Court were passed in presence of the learned Counsel for the petitioners and repeatedly the learned trial Court had apprised them that the stay orders were operative only till 12.09.2003.
16. Subsequently, the main suit came up for consideration before the learned trial Court on 09.10.2003 which was dismissed in default as well as for want of prosecution, as is evident from the order which reads as under:-
"09/10/2003 Present:- None for the plaintiffs.
Sh. S.K. Kanwar, Counsel, for the defts.
The plaintiffs are neither present themselves nor their Counsel has put in appearance. It is now ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 8 11.30 A.M. There is no stay received from the Hon'ble H.C. of H.P. after 12/9/2003. Be called out .
again after lunch.
Sd/-
Senior Sub Judge, Hamirpur(H.P.) 9/10/2003.
09/10/2003 Present:- None for the plaintiffs.
r to Sh. S.K. Kanwar, Counsel, for the defts.
The case has again been called out after lunch. It is now 3.45 P.M. The plaintiffs are again neither present themselves nor their Counsel has put in appearance. Even no intimation has been received from the plaintiffs. It means they are not interested to proceed further with this case. Hence, it is dismissed in default as well as for want of prosecution. Be consigned to the record room after due completion.
Announced. Sd/-
9/10/2003. Senior Sub Judge,
Hamirpur(H.P.)
9/10/2003."
17. Thus, what stands duly established on record is that in spite of knowledge of the fact that the stay order was operative only up to 12.09.2003, the petitioners took no steps to have the stay order extended despite the learned trial Court having repeatedly put them to caveat.::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 9
18. Learned counsel for the petitioners after placing strong reliance on the judgment of a learned Single Judge of .
the Allahabad High Court in Vishnu Dutt Sharma and etc. versus Regional Joint Director of Education, Agra and etc., AIR 2001 Allahabad 165 would vehemently argue that the stay order does not cease to be effective by efflux of time. It continues to operate till it is recalled, vacated or modified. r
19. I am afraid that this question does not arise for consideration in this revision petition for the simple reason that this Court had specifically held that the interim order passed on 28.07.2003 was to operate till the next date of hearing and this order was not extended and this fact was duly noticed by this Court when it passed the order on 12.05.2004, relevant portion whereof is extracted below:-
"Record of this appeal shows that on 28.7.2003 interim order was passed till the next date of hearing. Thereafter this order was not extended. This resulted in dismissal of the suit."
20. In addition to the aforesaid, it would be noticed that despite the application for restoration being barred, neither application as required under law for condonation of ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 10 delay was separately filed nor there was any prayer made in the application for condonation of delay. Obviously then, .
in such circumstances, the learned Courts below committed no mistake.
21. Article 122 of the Limitation Act reads as under:-
"Description of Period of limitation Time from which application period begins to run
122. To restore a suit Thirty days The date of or appeal or dismissal.
application for
review or revision
dismissed for default
of appearance or
for want of
prosecution or for
failure to pay costs
of service of process
or to furnish security
for costs."
22. As observed above, there was no separate application preferred by the petitioners for condonation of delay and, therefore, obviously, the Court below had no jurisdiction, power or authority to entertain such application.
23. This issue is no longer res integra in view of the judgment passed by this Court in K.D.Sharma & Ors.::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 11
Versus H.P. State Co-operative Bank Ltd. & Anr., AIR 2011 HP 60 wherein it was observed as under:-
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"17. The Hon'ble Apex Court has further held as under in Noharlal Verma v. District Co-operative Central Bank Ltd. Jagdalpur, 2009 AIR(SC) 664 vide paras 27, 28 and 29:
27.Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a Court or an Adjudicating Authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.
28. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under;
(3) Bar of limitation.--(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. (emphasis supplied)
29.Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in absence of such plea by the Defendant, Respondent or opponent, the Court or Authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation.
18. In Damodaran Pillai and Ors. v. South Indian Bank Ltd., 2005 AIR(SC) 3460 the Hon'ble Supreme Court has held that the statutory period of limitation for filing of a restoration application would be the date of order and not the knowledge there-about, vide para 11 of the judgment, which is as under:
::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 12"The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the .
effect of Sub-rule (3) of Rule 106. A bare perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of Rule 105, the starting period of limitation for filing of a restoration application would be the date of the order and not the knowledge thereabout. As the applicant is represented in the proceeding through his Advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex- parte order was passed and that too without proper notice upon the judgment debtor and not otherwise. Thus, if an order has been passed dismissing an application for default, the application for r restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. In that view of the matter, the date when the decree holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant."
19. To the similar effect is the law laid down by the Hon'ble Delhi High Court in Virender Kumar v. Maya Devi, 2001 94 DLT 848 (paras 3 and 4) and Punjab and Haryana High Court in Smt. Dev Bala Seghal v.
Devinder Pal Sehgal,2002 1 CCC 32 (paras 9, 11 and
12).
20. In Antonysami v. Arulanandam Pillai (Dead) by LRS and Anr., 2001 9 SCC 658 the following dictum of law has been laid down by the Hon'ble Supreme Court vide para 17 of the judgment (Para 16 of AIR):
"The fixation of periods of limitation are bound to be to some extent arbitrary and may at times result in hardship. But in construing such provisions equitable considerations are out of place and the strict grammatical, meaning of the words is the only safe guide. (See Nagendra Nath Dey v. Suresh Chandra Dey) The decree was enforceable ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 13 immediately after the date specified in the decree i.e. 23.9.1966 for the decree-holder to deposit the consideration money. If the direction given in the .
decree to the judgment-debtor to measure and demarcate the land by that date (23.9.1966) was not complied with the decree-holder was free to execute the decree. The steps to be taken by the decree-holder in this regard are provided in Order
21 Rule 34(1) Code of Civil Procedure."
21. In Ragho Singh v. Mohan Singh and Ors., 2001 9 SCC 717 the Hon'ble Apex Court has held that condonation of delay is not permissible in the absence of any application.
22. To the similar effect is the law laid down by this Court in Kailash Distt. Co-operative Society v. Sher Singh and Ors.,1986 ILR(HP) 721 (paras 6 to 8).
23. In view of the above legal position, the irresistible conclusion that emerges is that starting point of limitation in an application under Order 9 Rule 9(1) Code of Civil Procedure is from "the date of order"
and not "the date of knowledge".
24. Insofar as the submission on behalf of the Plaintiff-bank with regard to grant of permission to file an application for condonation of delay in moving the application under Order 9 Rule 9(1) Code of Civil Procedure at this stage is concerned, suffice it to say that the same cannot be considered at this belated stage, as such a course would be in negation of the legal position enunciated in the judgments referred to here-in-above."
24. Thus, what stands duly established on record is that the Court below has no jurisdiction, power or authority ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP 14 to entertain a suit, appeal or application, if the same is barred by limitation. What further stands settled is that the .
statutory period for filing a restoration application would be the date of order and not the knowledge of such order.
Thirdly, condonation of delay is not permissible in absence of any application and lastly no permission can be granted to an aggrieved party for filing an application for condonation of delay in moving an application under Order 9 Rule 9 CPC at such a belated stage and such course would be in negation of the legal proposition.
25. In view of the aforesaid discussion and for the reasons stated above, I find no merit in this revision petition and accordingly the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
6th May, 2019. (Tarlok Singh Chauhan) (krt) Judge ::: Downloaded on - 07/05/2019 21:58:40 :::HCHP