Jammu & Kashmir High Court
Raj Kumar vs Swaran Singh on 29 January, 2018
Equivalent citations: AIR 2018 JAMMU AND KASHMIR 35
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
C. Rev. No.18/2013
Date of decision:-29.01.2018
Raj Kumar Vs Swaran Singh
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the Petitioner(s): Mr. R. S.Thakur, Sr. Advocate with
Mr. Pankaj Jamwal, Advocate.
For the Respondent(s): Mr. Rahul Bharti, Advocate.
1. The instant civil revision is filed against the order dated 04.02.2013 passed by the learned Civil Judge (Jr. Division), R.S.Pura, whereby the ex parte decree passed by that Court on 27.02.2012 in the suit titled Raj Kumar vs Swaran Singh was set aside.
2. In this revision petition, it has been stated that in a suit for declaration and permanent prohibitory injunction titled Parshotam Dass (by his legal representative Raj Kumar) Vs. Swaran Singh, the defendant (herein respondent) proceeded against ex parte after he failed to appear in the case continuously for several dates of hearing and ultimately after recording ex parte evidence a decree was passed on 27.02.2012, declaring the alleged adoption of defendant No.1 by one Smt. Khetri Devi, the paternal aunt of the petitioner, to be null and void, and defendant was permanently restrained from selling alienating, interfering or transferring any movable or immovable property of the said Smt. Khetri Devi. It has further been stated that the husband of the one Smt. Khetri Devi, Sh. Ram Nath, was one of the members of the family along with Sh. Lekh Raj, Parshotam Dass and Kuldeep Raj (sons of sh. Lakmi Chand), whom land measuring 16 kanals 3 marlas in Khasra Nos.34, 35, 62 and 69 of village Kotli Gallabana was C. Rev. No.18/2013 Page 1 of 11 allotted , and all the four were entitled to the said land and the rights about the same, whether occupancy or otherwise, in equal shares. The said Sh. Ram Nath expired, leaving behind his widow Smt. Khetri, and she is said to have later, after the death of her husband, adopted one Sh. Swaran Singh as her son. Sh. Parshotam Dass, one of the members of the said family, filed a suit for declaration that the alleged adoption by the said Smt. Khetri Devi was null and void and also for permanent prohibitory injunction restraining the defendant from interfering, selling or transferring the said land or any part thereof. The defendant filed his written statement on 10.12.2010 and thereafter absented himself on several dates of hearing. The Court, being satisfied that there was no cause for the defendant not to appear in the case, proceeded ex parte against him on 20.09.2011. In the meantime, father of the petitioner, Sh. Parshotam Dass (Plaintiff), died on 01.03.2011, and the petitioner was brought on record as the legal representative of the deceased on 06.01.2012, of course upon his application in that behalf. The Court, after recording ex parte evidence, decreed the suit on 27.02.2012. Long thereafter, the defendant made an application for setting aside the ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure on 05.06.2012, obviously long after the expiry of the period of limitation; and along with prayer for condoning delay by means of a separate application was filed . The Munsiff R.S.Pura allowed both the applications, one for condoning delay and the other for setting aside the said ex parte decree by his order dated 04.02.2013. It is further contended that the ground on which the delay in filing the application for setting aside the ex parte decree is bought to be condoned is that Parshotam Dass plaintiff had come closer to the defendant and agreed to withdraw the case as compromised, but unfortunately died before the same could be withdrawn, and that he (defendant) had informed his counsel about the said agreement, and that the application of the petitioner herein for bringing him on record as legal representative of the deceased had been allowed without intimation to him either by the Court or C. Rev. No.18/2013 Page 2 of 11 by his counsel. The averments made in the said application are not only vague but also self contradictory. There is nothing in the application about when the said Parshotam Dass agreed with the defendant to compromise or withdraw the suit, and why the same could not be compromised or withdrawn before his death, nor about how he took it that he needed not to appear in the Court until the case was terminated in a compromise or withdrawal. It is a cock-and bull story that makes up for the cause to condone delay on the said ground. The counsel for the respondent herein had received the copy of the application to the petitioner for bringing him on record as legal representative of his deceased father, and it does not sound plausible that if he had been informed about what the deceased Parshotam Dass had allegedly agreed, he would not have informed the defendant of such application or continuance of the proceedings, or in other words, would have kept this information back from him. A party may or may not appear in the case personally; but he is not absolved of his responsibility to be diligent in the pursuit thereof. There can be no valid reason for the defendant not to appear in the case on an unfounded belief that the case might not proceed. There is no obligation in law either on the Court or the Counsel for the defendant to inform the latter of the grant of the application for brining on record the legal representatives of the deceased plaintiff. Thus, there is absolutely no cause made out in the application for condoning delay. It is further stated that the application for condoning delay does not disclose when and how the defendant came to know of the ex parte decree. At the time of arguments, when it was pointed out that there was nothing in the said application in that behalf, the defendant got the clue that he had missed out on that important aspect of the matter. The very fact that the defendant had offered no explanation at all of each day's delay after the passing of the said decree, and he had not come out clearly on when and how he acquired the knowledge of the decree if he had, not already known of the same, goes a long way to decimate the cause pleaded in the C. Rev. No.18/2013 Page 3 of 11 application for condoning delay as a farce. It is unfortunate and a matter of serious concern that after the defendant came to know from the said arguments that there was no substance in the application, and the same could not survive the deficiency of the cause as pointed out, he manipulated the interpolation in para 5 of the same. How this expression has got into this application is not forth coming and it cannot but be by manipulation of the defendant. It calls for a thorough probe when and how the aforesaid expression has found its way into the said application; it seems to be done by and at the instance of the defendant between 10 September 2012 and 6 February 2013. The aforesaid addition in the said application is not supported by any order of the Court and is not made in accordance with any procedure established by law; it has been made without taking the Court into confidence. A fraud has been thus played on the Court and also on the petitioner. In the circumstances, the defendant is not entitled to any indulgence of the Court and his application for condoning delay is liable to be dismissed. It is further contended that the defendant made an application, purportedly under Order 6 Rule 7 of the CPC for amendment of the earlier application for condoning delay on 09.01.2013. The petitioner has had no opportunity to file objection to the said application and was never ever privy to how it was disposed of. Even from the said application it appears that there was nothing about the said addition made in Para 5 of the application for condoning delay; neither any such amendment was sought nor allowed. The application for amendment is misconceived in that Order 6 Rule 17 of the CPC has no application in such a case, therefore, was not entitled to be considered at all and so are disentitled the averments made therein. It is further contended that the delay in filing the application for setting aside exparte decree is not explained at all, and no cause, much less sufficient, is shown for the absence of the defendant on several dates of hearing until the decree was passed. No explanation is tendered for each day's delay after the passing of the decree. The trial Court thus wrongly condoned the delay and C. Rev. No.18/2013 Page 4 of 11 took up the application for setting aside exparte decree for consideration. No evidence has been led by the defendant on his application for condoning delay. The application for setting aside exparte decree is not based on any valid ground..
3. This Court vide order dated 28.08.2017, admitted the petition and vide order dated 19.09.2017 learned counsel for the parties submitted that there is no need to file objections.
4. The respondent herein has filed application through his counsel on 5.6.2012 under Section 5 of Limitation Act for condonation of delay in filing application for setting aside ex-parte decree dated 27.2.2012 before Court below. The relevant contents of the application are as under:
a) That the applicant/defendant has not intentionally or deliberately absented from the court and the fact of the matter is that the original plaintiff Parshotam Dass has come closer to the defendant and better sense prevailed upon and he agreed to withdraw the case as compromised but unfortunately before the case is withdrawn the plaintiff Parshotam Expired on 13.12.2010 and the applicant was in the impression that the case has been dismissed.
b) That the applicant also intimated his counsel that the plaintiff agreed not to pursue the case and the plaintiff has died and the applicant was told that he need not come to attend the Court.
c) That in the absence of the applicant and without his knowledge one legal heir of the original plaintiff filed application for bringing him on record as legal heir on 22.03.2011 which was allowed and he was substituted as plaintiff and the applicant was neither intimated by the Court or his counsel nor has knowledge of the same regarding new plaintiff which ultimately lead to passing of the ex parte decree.
d) That civil rights of the applicant/defendant are involved and the applicant has very strong case on merits which has been decided ex parte against the applicant causing irreparable loss for none of the fault of the applicant/defendant and there has been no negligence on part of the applicant/defendant. The applicant came to know about ex-parte decree and order only today i.e 05.06.2012.C. Rev. No.18/2013 Page 5 of 11
e) That if the application is allowed, it will not cause any prejudice to the other side in any manner and it will meet end of justice.
5. Other side filed objection and stated that there is no sufficient cause shown in application; that defendant did not act diligently; the story of compromise fails, because another suit was pending in which applicant was prosecuting the proceedings; that applicant has deliberately absented himself.
6. The learned Court below after hearing the counsels for parties has passed the order impugned and observed as under:
"I am of the opinion that in case the explanation given by the applicant/defendant is not accepted, applicant/plaintiff would be condemned for the fault of his counsel and it is not counsel who would suffer rather it is the innocent litigant who reposed his faith in the professional capability of his counsel and after paying his full fee he entrusted prosecution for his case to his counsel will suffer. This aspect of the issue in hand was serious considered by the Hon'ble Supreme Court in case titled as Collector Land acquisition Anantnag vs Katiji, reported as 1987 SC 1353 which is cited hereinabove. In para No.2 of the judgment the Hon'ble Supreme Court has laid down as follow:
"Refusing to condone delay result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that cause would be decided on merits after hearing the parties. Again in Para No.2 of the judgment the Hon'ble Supreme Court has said that pedantic approach is not required while considering each day delay which must be explained rather Hon'ble Supreme Court has held that pragmatic approach is required."
In the same case the Hon'ble Supreme Court has further held that when the substantial and technical consideration are pitted against each other cause of substantial justice deserves to be preferred for other side cannot claim to have vested right in injustice being done because of none deliberate delay.
At the outset of this judgment Hon'ble Supreme Court has placed a word of Caution to be noticed by the subordinate courts in which the Hon'ble Court has impressed upon the subordinate court to take C. Rev. No.18/2013 Page 6 of 11 a liberal view while dealing with the application seeking condonation of delay.
In the light of the facts discussed hereinabove in case the contention of non applicant/plaintiff is accepted it is the applicant/defendant who is judgment debtor in the present case would be condemned for no fault of his. Therefore, the explanation given by the applicant that he was neither informed about the presentation of the application for bringing on record the legal heirs which was though accepted by his counsel and after accepting the copy of the application learned counsel did not represent applicant in the suit for 3 consecutive dates and ex parte proceedings were initiated against him and finally exparte decree was passed on 27.02.2012. Ex facie there seems to be justifiable cause for believing the legal advice of the counsel as well as for delay in presentation of the application. The applicant has pleaded that he filed this application on the very day when he came to know of passing of the decree i.e on 05.06.2012 even without applying for certified copies and he has cited reason for non production of certified copy. He annexed photo copy of decree sheet only until the concerned clerk who was on leave resume his duties and certified copy of the decree sheet was later placed on record. The applicant/defendant in my opinion sufficiently justified the cause of delay as such the delay of 69 days in presenting the application for setting aside exparte decree is condoned resultantly after allowing this application and for the aforesaid discussions there is sufficient cause which has prevented the applicant/defendant from appearing and prosecuting this case. Therefore, ex parte decree passed against the applicant/defendant in the suit No.55/Civil titled as Raj Kuamr Vs Swaran Singh dated 27.02.2012 is set aside. Both these applications are allowed."
7. Heard learned counsel for the parties and perused the record.
Order 9 Rule 13 CPC deals with application for setting aside decree passed in ex parte decree. It reads as under:
"13. Setting aside decree ex parte against defendant. In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause form appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as C. Rev. No.18/2013 Page 7 of 11 against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."
8. Bare perusal of this provision, it is evident that on two counts Ex-parte decree can be set aside. Firstly, if summon is not duly served and secondly in any other case when party seeking such relief is prevented from appearing in court, by sufficient cause.
9. Final ex parte decree in present case has been passed on 27.2.2012, whereas application for setting aside ex-parte decree has been filed on 5.6.2012 ,after about 3-1/2 months .
10. Whereas, period for filling application is 30 days from date of decree, when party is prosecuting the case as per Article 164 of Limitation Act. If it is not filled within this period, then there is enabling provision for condoning delay i.e. section 5 of limitation Act. Section 5 of Limitation Act reads as under:-
"5. Extension of period in certain cases An appeal or an application for a review of a judgment or for leave to appeal or an application to set aside an order of dismissal of a suit for plaintiff's default or an application to set aside a decree passed ex-parte in an original suit or appeal or an application to bring the heirs of a deceased party on the record or an application to set aside an order of abatement of a suit or appeal or any other application to which this section may be made applicable by or under an enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
11. From the bare perusal of this section, it is evident that court can condone the delay in filing application for setting aside ex parte decree, if applicant satisfies the court that he was having sufficient cause due to which he could not file application within prescribed period of limitation. Sufficient C. Rev. No.18/2013 Page 8 of 11 cause means cause, which court thinks adequate and beyond control of person seeking benefit of section 5 of limitation act. It has been held in several cases that the expression "sufficient cause" in section 5 of the Limitation Act should receive liberal construction.
12. The Limitation Act had conferred the power to condone delay by enacting section 5 of the Limitation Act in order to enable the courts to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice - that being the life purpose of the existence of the institution of courts. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
13. In present case, valuable rights of the parties in an immovable property are involved. The expression "sufficient cause" as appearing in section of the Limitation Act has to be given a liberal construction so as to advance substantial justice. Generally as a normal rule, delay should be condoned. Some times refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delays in approaching the court is always deliberate. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, C. Rev. No.18/2013 Page 9 of 11 thus, the courts are left to exercise discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter.
14. Court below has categorically held that in case the contention of non applicant/plaintiff is accepted it is the applicant/defendant who is judgment debtor in the present case would be condemned for no fault of his; that explanation given by the applicant that he was neither informed about the presentation of the application for bringing on record the legal heirs which was though accepted by his counsel and after accepting the copy of the application learned counsel did not represent applicant in the suit for 3 consecutive dates and ex parte proceedings were initiated against him and finally ex parte decree was passed on 27.02.2012, Ex facie there seems to be justifiable cause for believing the legal advice of the counsel as well as for delay in presentation of the application. It is also mentioned here that during proceeding before court below respondent moved an application for amendment of application for setting aside ex-parte decree thereby incorporating one more facts for sufficient cause. In that application it has been stated that counsel did not inform him regarding the impleadment of legal heirs of plaintiff in the case; counsel assured that he will be intimated if the need arose; he trusted the counsel; he is taxi driver and generally stays outside in connections with earnings his livelihood and so was unable to attend the case; his counsel did not inform him and so he believed that case has been dismissed. Petitioner- herein in this application did not file objection and this application was allowed as counsel for petitioner did not raise any objections. Now petitioner is stopped from controverting these allegations. It is not the case of petitioner that court below has exercised jurisdiction which was not vested to him. The argument of counsel for petitioner that, no opportunity of producing C. Rev. No.18/2013 Page 10 of 11 witnesses was given, is not tenable. Because from perusal of interim orders of court below, it is evident , no such type of plea was ever raised before court below.
15. In view of above discussion, this revision is dismissed as order of Court below does not suffer from any infirmity of law or facts.
( Sanjay Kumar Gupta ) Judge Jammu 29.01.2018 Narinder This judgment is pronounced by me in terms of Rule 138(3) of the Jammu & Kashmir High Court Rules, 1999.
( Dhiraj Singh Thakur ) Judge Jammu 29.01.2018 Narinder C. Rev. No.18/2013 Page 11 of 11