Delhi High Court
Meenu Bhargava & Anr. vs Mukul P. Bhargava & Ors. on 3 June, 2011
Author: J.R. Midha
Bench: Gita Mittal, J.R. Midha
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM No.8716/2008 & FAO(OS)No.282/2008
Date of Decision : 3rd June, 2011
%
MEENU BHARGAVA & ANR. ...Appellants
Through : Ms. Sadhna Chaudhry, Adv.
versus
MUKUL P. BHARGAVA & ORS. ...Respondents
Through : Mr. Anjana Gosain, Adv. with
Mr. Mukul P. Bhargava, Respondent
No.1 in person
Mr. Babu Kala, Adv. for Respondent No.2
Mr. B.P. Aggarwal, Adv. for Respondent
No.3.
CORAM :-
THE HON'BLE MS. JUSTICE GITA MITTAL
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
J.R. Midha, J.
1. The appellants have challenged the order dated 18th January, 2008 whereby the appellants‟ application for setting aside the ex-parte order dated 13th November, 2006 has been dismissed by the learned Single Judge.
FAO(OS)No.282/2008 Page 1 of 36
2. The facts giving rise to the present appeal to the extent necessary for the purposes of the present case deserve to be considered and read as follows.
The pedigree of the parties is as follows:-
Saubhagya Bhargava w/o M.P. Bhargava, Plaintiff/respondent No.3 |
------------------------------------------------------------------------------------------
| | | |
Mukul Mayank Meenu Manju
Def-1/Resp-1 Def-2/Resp-2 Def-3/App-1 Def-4/App-2
Thus the appellants are the two daughters while respondent nos. 1 and 2 are the two sons of the plaintiff/respondent No.3 and her husband late Sh. M.P. Bhargava.
3. Late M.P. Bhargava was owning the property bearing No.A/11A, NDSE Part I, New Delhi (said property hereafter). After his demise, his widow, Smt. Saubhagya Bhargava (respondent No.3) instituted a suit bearing CS(OS) No.590/2006 for partition, possession, permanent injunction and rendition of accounts in respect of the said property owned by late M.P. Bhargava.
4. On 23rd August, 2006, Smt. Meenu Bhargava (appellant No.1/defendant No.3) was present. The plaintiff was unrepresented and, therefore, the suit was dismissed for FAO(OS)No.282/2008 Page 2 of 36 default of appearance on behalf of the plaintiff.
5. On 28th August, 2006, IA No.9433/2006 of the plaintiff/respondent No.3 seeking restoration of the suit under Order IX Rule 9 of the Code of Civil Procedure was allowed in the presence of defendant nos. 1, 3 and 4 while fresh summons were directed to be issued for the service of defendant No.2/respondent No.2. The defendant nos. 1, 3 and 4 were given time to file the written statement.
6. It appears that on 13th November, 2006, only defendant No.1 had filed the written statement and was permitted time to file additional documents. The defendant No.2 had appeared through counsel and sought further time to file a written statement. Unfortunately, there was no appearance on behalf of defendant Nos.3 and 4 who were consequently proceeded against ex-parte.
7. On 18th January, 2007, despite time having been given, additional documents were not filed by defendant Nos.1 and defendant Nos.2 had also not filed its written statement. So far as the appellants/defendant nos. 3 and 4 are concerned, Sh. Mukul Aggarwal, Advocate had put in appearance on their behalf. The order records that these defendant nos. 3 and 4 had already been proceeded ex-parte.
FAO(OS)No.282/2008 Page 3 of 36
8. It appears that on 28th February, 2007, a written statement was filed by Smt. Meenu Bhargava-defendant No.3/appellant No.1. The next date of hearing was scheduled on 8th March, 2007. On this date, the learned Joint Registrar was on leave. The order recorded on that date shows that the appellants/defendant nos. 3 and 4 were duly represented by a lawyer. Meenu Bhargava - appellant No.1/defendant No.3 was also present in person.
9. On 4th May, 2007, the presiding officer of the Court was on leave. The order sheet of the suit shows that again appellant No.1 was present in person on this date as well.
10. On 6th August, 2007, the Joint Registrar recorded that defendant No.3 had filed a written statement on 8th February, 2007 with a copy received by learned counsel for the plaintiff. However, there was an objection by counsel for the other defendants.
11. Sh. Mukul Bhargava, defendant No.1 in the suit and respondent No.1 herein, filed an application under Order VI Rule 17 of the Code of Civil Procedure on 2nd November, 2007 being I.A.No.12682/2007 seeking leave to amend the written statement.
FAO(OS)No.282/2008 Page 4 of 36
12. At this stage, Ms. Sadhna Chaudhry entered appearance on behalf of defendant Nos. 3 and 4 (appellants herein). The defendant nos. 3 and 4 filed IA No.13126/2007 dated 5th November, 2007 purporting to be under Order IX Rule 13 of the Code of Civil Procedure wherein they had stated as follows:-
"It is respectfully submitted that both the applicants/defendants no. 3 & 4 had already filed their written statements which are on record and are keenly interested in participating in the proceedings of the case.
Due to inadvertence of the earlier counsel, the defendants could not know about the ex-parte order passed against them. The setting aside of the ex- parte order will not cause inconvenience to any party as they had already been supplied with the copies.
It is accordingly, requested that ex-parte order dt. 13.11.06 passed against the applicants be kindly set aside."
This application was accompanied by an affidavit of Meenu Bhargava.
13. The appellants also filed a second application being IA No.13127/2007 which is also dated 5 th November, 2007 under Section 5 of the Limitation Act praying for condonation of delay of 358 days for the following reasons:-
"1. That both the applicants/defendants no. 3 & 4 had already filed their written statements which are on record and are keenly interested in participating the proceedings of the case.
2. That both the defendants had been FAO(OS)No.282/2008 Page 5 of 36 continuously attending the proceedings of the court either in person or through counsel but on account of the inadvertence of their counsel, inspite of their presence in the court, they were marked absent.
3. That it will result in grave injustice to the applicants if they are deprived of an opportunity to be heard in the matter.
4. That the defendants/applicants had been diligently pursuing their case. Therefore, the ex- parte order deserves to be set aside.
5. That as soon as the ex-parte order came to the notice of the applicants, they have moved this application."
14. These applications came up before the court on 18th January, 2008. IA No.13127/2007 was rejected by the learned Single Judge holding that the application seeking setting aside of ex-parte order was filed by defendant nos. 3 and 4 after about one year on 5th November, 2007. The learned Single Judge was of the view that no reason had been given in the application as to why the delay of one year occurred in filing the application. It was also held that the application was totally vague and was therefore dismissed without issuing notice to the other side.
15. So far as IA No.13126/2007 is concerned, the learned Single Judge again held that the application was vague; filed after one year and did not explain any reason for the absence of the defendants till the time they had filed the instant application. This application was also dismissed. FAO(OS)No.282/2008 Page 6 of 36
16. It is noteworthy that on 18th January, 2008, the Court granted time to the plaintiff for filing reply to IA No.12682/2007 filed by defendant No.1 for amendment of the written statement.
17. On 25th April, 2008, three applications filed by the plaintiff being IA No.3927/2008 under Section 151 of the Code of Civil Procedure; IA No.3928/2008 under Order VI Rule 17 of the Code of Civil Procedure and IA No.3929/2008 under Order XI Rule 11, 12 and 13 of the Code of Civil Procedure were listed when Smt. Padma Choudhary, Advocate appeared for defendant No.4.
18. The suit has been listed on several dates thereafter. Till the time the appeal came to be listed before this court, it is an undisputed position that the application of the plaintiff as well as defendants for amendment of their respective pleadings were still pending. Thus the suit was at the initial stages even when the appeal was filed and pleadings in the suit had also not been completed even qua the defendants who were appearing.
19. So far as the order dated 18th January, 2008 is concerned, it appears that the challenge thereto on behalf of the appellants was filed as a civil revision petition on or about FAO(OS)No.282/2008 Page 7 of 36 11th April, 2008. Certain objections were marked by the Registry and the same was returned for re-filing. The revision petition was re-filed on 11th April, 2008 when an objection with regard to the maintainability was raised by the Registry. The following objection was added by the Registry:-
"No.3 - It should be stated as to how CM(M)/CR is maintainable"
20. In answer to this objection, learned counsel for the plaintiff had first made the following endorsement:-
"Since the impugned order has been passed on the revisionist application under Order IX R 7 Code of Civil Procedure and not under Order IX Rule 13 of the Code of Civil Procedure as wrongly stated in the impugned order and the application, therefore, revision is legally maintainable."
Thereafter, learned counsel for the appellants had stated that "It is being converted in FAO(OS). Objection removed. Refile." and the revision was re-filed as an appeal.
21. After its refiling, the Registry raised an objection on 30th April, 2008 that a second set of the paper book was required to be filed. This was for the reason that while a civil revision is heard by a learned Single Judge, appeal against an order of the Single Judge is heard by a Division Bench. Further objections were raised by the Registry thereafter. On 30th FAO(OS)No.282/2008 Page 8 of 36 May, 2008, it was further pointed out that the appeal was barred by 85 days.
22. In this background, the appellant has filed CM No.8716/2008 under Section 5 of the Limitation Act praying for condonation of delay in filing the present appeal pointing out that the challenge had been laid in the form of a revision petition by the appellants under the impression that the Court had acted in exercise of its jurisdiction with material irregularity and that the revision petition under Section 115 of the Code of Civil Procedure was maintainable. The appellants also explained that Order XLIII Rule 1 of the Code of Civil Procedure did not provide an appeal against an order passed under Order IX of the Code of Civil Procedure which strengthened the perception of learned counsel that the revision petition was maintainable against the impugned order. It was only after filing of the revision petition, it was revealed to the "deponent" that only an appeal under Section 10 of High Court Rules was permissible against the impugned order.
23. It is noteworthy that this application was accompanied by an affidavit of Smt. Sadhna Chaudhry, Advocate to the effect that the contents of the application were true and FAO(OS)No.282/2008 Page 9 of 36 correct. The appellant points out that a revision petition may be filed within 90 days of the passing of the impugned order to be within limitation. However, the 30 day prescribed period for filing the appeal had expired in the above circumstances. Counsel for the appellants has stated that the delay in filing the appeal was not malafide or intentional but was only due to the above noticed reasons. The above applications came up for hearing on 1st July, 2008 when notice was issued on the appeal as well as on CM No.8716/2008. The same has remained pending.
24. Meanwhile, in the suit, as late as on 17th October, 2008, learned counsel for the respondent No.1 had stated that he has to file further documents in the suit which would be filed within six weeks.
25. Inasmuch as the matter was between close relatives, mediation efforts were made during the pendency of the appeal which however failed.
26. We have heard learned counsel for the parties both on CM No.8716/2008 as well as the main appeal.
27. The learned counsel for the appellants submit that appellants were not aware that they had been proceeded ex- parte on 13th November, 2006. It is submitted that the FAO(OS)No.282/2008 Page 10 of 36 appellants were under the impression that the previous counsel would have appeared before the Court on 13th November, 2006 and, therefore, the appellants continued to appear before this court on 18th January, 2007, 8th March, 2007, 4th May, 2007, 6th August, 2007 and 5th November, 2007, either in person or through counsel. The appellants were under the impression that their counsel was diligently prosecuting the case. It was further submitted that no period has been prescribed under the Limitation Act for setting aside of the ex-parte order and the application for condonation of delay was filed as an abundant caution. It was further submitted that the suit before the learned Single Judge was a partition suit in which every party is at par with the plaintiff and is required to pay court fees on his share. It was urged that respondents Nos.1 and 2 had not filed any objections to the application. The appellants have contended that the application was made bonafide and sufficient cause was made out by the appellants.
28. Before proceeding to deal with the factual matrix, we may deal with the applicable legal principles. It is noteworthy that so far as setting aside of ex-parte proceedings against the defendant for his non-appearance are concerned, Rule 7 of Order IX of the Code of Civil Procedure permits that if the defendant, at or before such hearing appears and assigns FAO(OS)No.282/2008 Page 11 of 36 'good cause' for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
29. In case the filing of an application under Order IX Rule 7 of the Code of Civil Procedure is delayed, the legislature permits condonation of delay by an appropriate application under Section 5 of the Limitation Act which provides that any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
30. A person proceeded ex-parte on a particular hearing, has a right to participate in further proceedings of the case and he cannot be denied the right to participate in the further proceedings of the case. However, unless the ex-parte order is set aside, such a person who has been proceeded ex-parte cannot be relegated back to the initial stage and he will have to join the proceedings from the stage he started appearing in the Court.
FAO(OS)No.282/2008 Page 12 of 36
31. Before considering the aspect of condonation of delay, it may be useful to advert to the position which would emanate upon a defendant being proceeded ex-aprte. In this regard, in Finolex Cables Ltd. v. Finolux Auto Private Ltd., 2007 (35) PTC 680 (DEL) (DB), this Court held as under:-
"10. The legal position which is not in dispute and which can be extracted from the conjoint reading of the Supreme Court Judgment in the case of Sangram Singh v. Election Tribunal, Kotah AIR 1955 SC 425 and Division Bench judgment of this Court in Lotus International and Ors. v. Chaturbhujadas Karnani Textiles (P) Ltd. 65 (1997) DLT 300 (DB) is this:
(a) if the defendant does not appear on the date of hearing fixed by the court, the court has power to proceed ex-parte against him;
(b) when the defendant joins and participates in the proceedings at a stage when the plaintiff is yet to examine his witnesses, the defendant shall have right to cross examine the plaintiff's witnesses, provided such cross examination has not already been foreclosed. In that event, the court has also the power to permit the defendant to adduce evidence on his side. It really depends as to at what stage the defendant was set ex-parte under Order IX Rule 6 Code of Civil Procedure and at what stage he has chosen to seek permission to participate in the proceedings;
(c) the defendant can appear later and move application for setting aside the ex-parte order by showing sufficient cause for non appearance on the date the defendant was proceeded ex- parte. If sufficient cause is shown, the court can set aside the ex-parte order and in that case it shall restart the proceedings from the stage when the defendant was proceeded ex-parte on the premise that no proceedings were held FAO(OS)No.282/2008 Page 13 of 36 at all on the date when the defendant was proceeded ex-parte and/or on subsequent dates; and
(d) even if the defendant is not able to show good cause, he has right to participate in the proceedings from the stage when he started appearing. However, in that event he has no right to set back the clock and, therefore, if any advantage accrued to the plaintiff on the dates when the defendant had not appeared, that advantage would continue to accrue in favour of the plaintiff."
32. Let us now consider more material facts in the instant case. The above narration of facts would show that the defendants were proceeded ex-parte at a stage when the defendant No.1 had, shortly after filing its written statement, filed IA No.12682/2007 seeking amendment of its written statement. The plaintiff's application for amendment of the plaint being IA No.3928/2008 was also filed thereafter.
33. The defendant No.2 had on that very day been granted time to file its written statement.
34. The plaintiff/respondent No.3 had filed a suit seeking partition of property which had been owned by deceased Sh.M.P. Bhargava.
35. While their two sons were arrayed as defendant Nos.1 and 2, their two daughters were arrayed as defendant Nos.3 and 4. It is trite that in a suit for partition, all parties are considered as plaintiffs. We had put a query to learned FAO(OS)No.282/2008 Page 14 of 36 counsel appearing for the absent respondent nos. 1 and 2 as to whether the appellants were precluded from asserting their rights or claim by a separate suit even on date. Learned counsel for the respondent Nos. 1 and 2 had very fairly conceded the same. However, it was urged that in case the appellants were to bring separate suits, they would be required to pay court-fees thereon which they must in view of the defence of respondent No.1. Therefore, till date, there has been no adjudication at all on the rights of the parties and the main suit is pending for consideration of applications for amendment of pleadings.
36. Before considering the applications which were filed before this Court, we may first advert to the delay in filing the present appeal. Undoubtedly, the learned counsel for the appellants has blundered in the matter. She has drawn no distinction between an appeal and a revision petition even in the drafting and has loosely used technical expressions in the matter without any application of law.
37. The core submission on behalf of the appellants is that they are housewives not conversant with the technical and strict rules of procedures and have relied upon the guidance given to them by learned counsel. It is a fact that appellant FAO(OS)No.282/2008 Page 15 of 36 No.1 has been appearing in this case in person on almost all dates of hearing, before and after the ex-parte proceedings. It is not disputed that she is a housewife.
38. A litigant is certainly not expected to know the nature of remedy which he or she is required to invoke and reasonably and normally depends upon the guidance given by professional experts and learned counsel in this behalf. Distinctions between revision petitions and appeals as well as the statutory prescriptions of the period of limitation for the invocation of a remedy are not known to a litigant.
39. In the instant case, there was another nicety involved. The matter did not relate to a simple appeal under Order XLIII of the Code of Civil Procedure. The case involves an inter- court appeal to the division bench in the high court from an order passed by a learned Single Judge.
40. Learned counsel for the appellants has very honestly stated in the affidavit which she has filed in support of CM No.8716/2008 that she was of the view that revision under the Code of Civil Procedure was maintainable and that, it was only after the filing of the revision petition, that she became aware that only an appeal was maintainable. We may notice that even in this application, learned counsel refers to Section 10 FAO(OS)No.282/2008 Page 16 of 36 but not of any enactment. She makes a reference to „High Court Rules‟.
41. The respondents have objected to the manner in which the matter has been filed in the instant case. However, during the course of the hearings while the matter remained pending before us, it was conceded that learned counsel for the appellants does not normally practice in this Court. Undoubtedly, she was required to have taken better care in drafting and filing of appeal and the applications. Even the manner of removal of the office objections by the Registry is not appropriate. However, these are all technical matters of procedure. The main issue remains as to whether the appellants; who are defendant nos. 3 and 4 in the suit should be denied the right to lead their defence in such facts.
42. In G. Ramegowda vs. The Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897, the Court observed as under:-
"7. .....There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in section 5 must FAO(OS)No.282/2008 Page 17 of 36 receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay."
43. An objection that a suit, appeal or an application is barred by limitation is not a bar relating to the merits of the case or the rights of the party. The impact thereof is that the remedy to enforce a relief or invoke a remedy gets extinguished.
44. It has been repeatedly held by the Supreme Court that rules of procedure are handmaid to the ends of justice. In Sangram Singh vs. Election Tribunal, Kotah, [1955] 2 SCR 1, it was held as under:-
"17. Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of Sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."
45. In Jai Jai Ram Manoharlal vs. National Building Material Supply, Gurgaon, [1970] 1 SCR 22, the Court held as under:-
"5. ......Rules of procedure are intended to be a FAO(OS)No.282/2008 Page 18 of 36 handmaid to the administration of justice A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure......"
46. In Kalipada Das vs. Bimal Krishna, AIR 1983 SC 876, it was observed that:-
"5. ...a procedural step which facilitates hearing of the appeal, cannot impede access to justice."
47. In Bhag Singh vs. Major Daljit Singh, 1987 SCC (Supp) (1) 685, reiterating the law laid down earlier by the Supreme Court in Union of India vs. Ram Charan, [1964] 3 SCR 467 and approving the view taken in Premnath vs. M/s. Kaudoomal Rikhiram, AIR 1962 P&H 446 and Hanumandas vs. Pirthvi Nath, AIR 1956 All 677, the Court held as under:-
"The Court while considering an application under Section 5 of the Limitation Act will consider the facts and circumstances not for taking too strict and pedantic stand which will cause injustice but to consider it from the point of taking a view which will advance the cause of justice." (Emphasis supplied)
48. However the aforenoticed proposition is not an absolute proposition of law. Even liberal application of the above principles while interpreting sufficiency of cause shown or good cause requires that the applicant must be able to establish that no negligence nor inaction nor want of FAO(OS)No.282/2008 Page 19 of 36 bonafides could be imputed to the persons seeking exercise of distinction. In this regard, in Shakuntala Devi Jain vs. Kuntal Kumari, [1969] 1 SCR 1006, the Supreme Court reiterated the observations in Krishna vs. Chathappan, 1890 ILR 13 Mad 269, which is as under:-
"7. ... Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is importable to the appellant."
(Emphasis supplied)
49. The principles on this issue were laid down by the Supreme Court in N. Balakrishnan vs. M. Krishnamurthy, 2008 (228) ELT 162 (SC), where it was held as under:-
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court FAO(OS)No.282/2008 Page 20 of 36 refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court."
"10. .....The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice...
11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly...."
"12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause"
under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.....".
13. 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......"
(Emphasis supplied)
50. In Union of India vs. Ram Charan (Deceased) by LRs., [1964] 3 SCR 467, the Hon‟ble Supreme Court observed as under:-
"11. .....The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing FAO(OS)No.282/2008 Page 21 of 36 the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance....."
"12. It is true, as contended, that it is no duty of the appellant to make regular enquiries from time to time about the health or existing of the opposite party, ..."
51. At this stage, we may refer to the reasons given by the appellant in IA No.13127/2007 seeking condonation of delay in filing IA No.13126/2007. The appellant No.3 has stated that she has been appearing in the suit on all dates and was not informed by the counsel of the proceedings. The ignorance of the appellants is manifested from the fact that they were represented by learned counsel whose presence is noted on 18th January, 2007 which was after they had been proceeded ex-parte. Instead of guiding the appellants correctly, learned counsel on 28th February, 2007 filed the written statement on behalf of the defendant No.3. Again after such filing, the counsel and defendant No.3 have appeared in person on 8th March, 2007. Defendant No.3 has appeared on 4th May, 2007 as well.
FAO(OS)No.282/2008 Page 22 of 36
52. The order dated 6th August, 2007 records that defendant No.3 had filed a written statement on 8th February, 2007 which had been received by the plaintiff. However, an objection was taken by counsel for defendant nos. 1 and 2 to the effect that this written statement could not be taken on record as defendant No.3 had been proceeded ex-parte vide the order dated 13th November, 2006 and the ex-parte order had not been set aside. In this background, it was only thereafter that the appellants engaged Ms. Padma Chaudhry as counsel and filed the said applications which were dismissed.
53. The reason for the ex-parte proceedings as well as delay in filing the applications for setting aside the order dated 13th November, 2006 as well as the reason given for the delay which has been occasioned in filing of the appeal has been explained as fault and conduct of the counsel. We have adverted to at length to the explanation given by counsel for the appellant and her erroneous understanding of the law.
54. The fact that the appellants filed the written statement within two weeks of being proceeded ex-parte and that the appellant No.1 continued to appear in the suit on every date of hearing lends substance to the explanation rendered by the FAO(OS)No.282/2008 Page 23 of 36 appellants for the delay which has been occasioned in filing the application for setting aside the order dated 13th November, 2006.
55. The law with respect to the condonation of delay is also well settled. In Collector, Land Acquisition, Anantnag vs. Mst. Katiji, AIR 1987 SC 1353, the Supreme Court was posed with interpretation of the expression 'sufficient cause'. The Court read in a touch of elasticity in the phrase and observing the necessity of applying law in a meaningful manner to subserve the ends of justice, summed up the principles as under:-
"1. To condone, or not to condone, is not the only question. Whether or not to apply the same standard in applying the "sufficient cause" test to all the litigants regardless of their personality in the said context is another.
xxx
3. The legislature has conferred the power to condone delay by enacting Section 5 (Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period) of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to 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 subserves the ends of justice-that being the FAO(OS)No.282/2008 Page 24 of 36 life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a 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 a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. 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.
5. 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.
6. 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."
(Emphasis supplied) FAO(OS)No.282/2008 Page 25 of 36
56. Even the aspect of a party relying on conduct of a lawyer to explain the delay which has resulted in doing a particular act has arisen before the Courts on several occasions. On this aspect in the judgment reported at Gopaldas Agrawal vs. Phoolchand Garg, 1990 MPLJ 440, the Madhya Pradesh High Court (Gwalior Bench) held as under:-
"7. In our system of administering justice there is rarely a legal battle fought without the aid of lawyers. The litigant places his fate along with papers in the hands of a lawyer, placing implicit reliance on advice received. Though ignorance of law is never a permissible defence which may be raised by a litigant, that factor cannot be lost sight of while determining the questions of bona fides and mala fides. Litigants do not know the niceties of law. Invariably the Courts have been holding litigants protected by legal advice given by lawyers even if found to be mistaken, unless, of course, there be a culpable negligence, deliberate inaction or lack of bona fides imputable to the Advocate. Counsel's default constitutes sufficient cause for a litigant bona fide acting on it, has been the consistent view of this Court. A diligent prosecution of proceedings before a wrong forum in the absence of mala fides has been accepted as a valid ground for exclusion of time by Their Lordships of the Supreme Court in Matadin v. A. Narayanan 1970 MPLJ 118 and by this Court in Rewaram v. State of M. P. 1986 II MPWN 224." (Emphasis supplied)
57. The Supreme Court has also repeatedly cautioned the courts against taking either too strict a view or too liberal a view on issues on condonation of delay. It has been observed FAO(OS)No.282/2008 Page 26 of 36 that a middle path has to be adopted while taking a practical view of the events. In this regard, reference can be made to the observations of this Court in the judgment reported at Ravindra Jain vs. Natraj Albums Industries (Pvt.) Ltd., 64 (1996) DLT 572,:-
"34. It is well settled that while dealing with an application under Section 5 of the Limitation Act, a liberal and not pedantic approach has to be adopted. A practical view of the events has to be taken." (Emphasis supplied)
58. The Madras High Court in its judgment reported as Biniyabai vs. Sikandar Khan, 1993 (0) MPLJ 738 relied upon several decisions of the Supreme Court and held as under:-
"16. The law is thus clear. While dealing with applications seeking condensation of delay under Section 5 of Limitation Act or for setting aside of abatement under Rule 9 of Order 22 Civil Procedure Code, the approach has to be liberal and judicious guided by the paramount consideration of not depriving a litigant ordinarily of adjudication of rights on merits. Hypertechnical, too strict, and pedantic approach as may cause injustice has to be avoided. Ignorance of law is no defense in law but the realities of life,' the Courts of law cannot afford to overlook......"
59. We may at this stage also refer to the binding principles laid down by the Supreme Court in Ram Nath Sao vs. Gobardhan Sao, [2002] 2 SCR 77, the Supreme Court held FAO(OS)No.282/2008 Page 27 of 36 as under:-
"11. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."
(Emphasis supplied)
60. These very issues were considered in the judgment reported as Perumon Bhagvathy Devaswom, Perinadu FAO(OS)No.282/2008 Page 28 of 36 Village vs. Bhargavi Amma (Dead) by LRs., 2008 (8) SCC 321 and the following principles were authoritatively laid down:-
"8. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows :
(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words `sufficient cause' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses.
The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in FAO(OS)No.282/2008 Page 29 of 36 approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.
(v) Want of `diligence' or `inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal."
(Emphasis supplied)
61. In the instant case, the contesting respondents before this Court are unable to point out any malafide, negligence or deliberation on the part of the appellants for the delays which have been occasioned in the instant case or for their non- appearance on 13th of November, 2006. They have dealt with at length on the conduct of counsels. In the light of the principles laid down by the Supreme Court in Ram Nath Sao (Supra) and Peruumon Bhagvathy Devaswom (Supra), it has to be held that want of diligence or inaction or malafide cannot be attributed to the appellants and that their applications rest on pleas of lawyer‟s lapses.
62. Learned counsel for respondent No.1 has placed reliance FAO(OS)No.282/2008 Page 30 of 36 on the principles laid down by the Supreme Court in Arjun Singh vs. Mohindra, AIR 1964 SC 993, where it was held that a person proceeded ex-parte on a particular hearing, has a right to participate in further proceedings of the case and he cannot be denied the right to participate in the further proceedings of the case. However, unless the ex-parte order is set aside, such a person who has been proceeded ex-parte cannot be relegated back to the initial stage and he will have to join the proceedings from the stage he started appearing in the Court.
63. Learned counsel for the respondent has also placed reliance on Babu Ram vs. Devinder Mohan Kaura, AIR 1981 Delhi 14. In this case, it was held in para 22 of the judgment by a learned Single Judge seized of the revision petition that there is no universal rule that every mistaken advice given by the counsel constitutes sufficient cause or constitutes „good faith‟. The court stated that every case would depend on its own facts and further that in some cases, a bonafide opinion given by a counsel can constitute sufficient cause. The court held that if an opinion is given after taking due care and attention, then the delay amounts to „good faith‟ as well as „sufficient cause‟. However, if the opinion FAO(OS)No.282/2008 Page 31 of 36 was given off-hand without taking the trouble of knowing the law on the point it may not constitute sufficient cause and/or good faith.
64. In the case in hand, the counsel for the appellant has explained that she had examined the Code of Civil Procedure which governs the proceedings in a civil suit normally. The counsel did examine the provision of Order 43 of the Code of Civil Procedure which provides for an appeal against an order in the suit. However, finding that the order under challenge was not appealable under Order 43 of the Code of Civil Procedure, counsel placed reliance on the earlier existing provision of Section 115 of the Code of Civil Procedure and filed the petition which was initially entertained by the Registry. As noticed above, in the instant case, no fault is attributable to the appellants who have acted bonafide. It cannot be held that their actions based on legal advice suffered from bad faith and that they would be disentitled to exercise of the discretion with regard to condonation of delay.
65. So far as the delay in filing is concerned, learned counsel has clearly accepted the fault thereof. The record of the instant case bears out these facts.
66. The Supreme Court has observed that when no FAO(OS)No.282/2008 Page 32 of 36 negligence or inaction or want of bonafide can be imputed on the defaulting party, acceptance of the furnished explanation should be the rule and it is the refusal which needs to be an exception.
67. Given the fact that we are concerned with a suit for partition of the properties owned by the father of the contesting respondent nos. 1 and 2 and the appellants in which the pleadings were not also complete on the date of filing of the applications, no prejudice would certainly result to the contesting respondents in case the present application was allowed. On the contrary, defendant No.2 was granted time to file his written statement and the plaintiff and defendant No.1 filed applications for amendment of their pleadings.
68. We are persuaded to accept the explanation rendered on behalf of the appellants for the reason that appellant No.1 has continued to appear in person in the case even after having been proceeded ex-parte on 13th November, 2006.
69. Learned counsels for the respondent nos. 1 and 2 are unable to point out any lack of bonafides which ensures to the appellants in permitting ex-parte proceedings against themselves.
FAO(OS)No.282/2008 Page 33 of 36
70. The very fact that the appellants filed the written statement on 8th February, 2007 also substantiates the bonafides pleaded by the appellants.
71. We find that the learned Single Judge was of the view that the appellants had failed to explain the entire period up to the date of filing of the application. However, as noticed above, the appellants continued to appear in the case either in person or through counsel. Consequently, the period which lapsed after they were proceeded ex-parte till the date of filing of the application is explained by the record of the case and their submission that they had acted diligently and as per legal advice.
72. The plaintiff who is arrayed as respondent No.3 has clearly stated that she has no objection to the condonation of delay in filing of the appeal as well as allowing I.A.Nos.13126/2007 and 13127/2007, and setting aside of the ex-parte proceedings.
73. The position in the present case appears as follows :-
(i) The suit is still at the initial stage and, therefore, it would be in the interest of justice that all the parties are heard before deciding the matter.FAO(OS)No.282/2008 Page 34 of 36
(ii) In partition suits, the decree passed enures not merely for the benefit of the plaintiff but for the benefit of the defendants as well. It is because of this that in a partition suit, everybody including the defendants are in the position of the plaintiff.
(iii) The expression "good cause" in Order IX Rule 7 of the Code of Civil Procedure and "sufficient cause"
in Section 5 have to be given liberal construction so as to advance substantial justice.
(iv) The primary function of the court is to advance substantial justice which in this case would be served by setting aside the ex-parte order dated 13th November, 2006 and by condoning the delay.
(v) Refusing to set aside the ex-parte order and to condone the delay would result in the appellants not being heard and the cause of justice may be defeated.
74. For all the aforesaid reasons, the appeal is allowed. The delay in filing of this appeal as well as the delay in filing of the application for setting aside of the ex-parte order by the appellants is condoned. The order dated 13th November, 2006 directing ex-parte proceedings against the appellants is FAO(OS)No.282/2008 Page 35 of 36 set aside. The respondent No.1 shall remain bound by the undertaking recorded in the order dated 21st December, 2010.
J.R. MIDHA, J GITA MITTAL, J JUNE 3, 2011 FAO(OS)No.282/2008 Page 36 of 36