Bombay High Court
Group Grampanchayat Bhadola Wadi Thr. ... vs Smt. Sindhubai Ashok Ghadge Annd Others on 12 February, 2020
Author: Manish Pitale
Bench: Manish Pitale
1/11 WP4465.16-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4465 OF 2016
PETITIONER :- Group Grampanchayat Bhadola Wadi,
Ori.Applicant through its Village Development Officer,
Bhadola, Tah. and District-Buldana.
...VERSUS...
RESPONDENTS :- 1] Smt.Sindhubai Ashok Ghadge, aged
Ori. Defendant about 36 years, occ. Agriculturist,
2] Ku.Sonali d/o. Ashok Ghadge, Aged
about 17 years, occ. Nil (Minor),
3] Amol s/o Ashok Ghadge, Aged about 15
years, occ. Nil (Minor),
Nos.2 and 3 are minors, through G.A.L.
Mother NO.1, all R/o. Borgaon Math,
Tah. Jafrabad, District - Jalna.
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Mr. D. T. Patil, counsel for the petitioner.
Mr. Akshay A. Naik, counsel for the respondents.
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CORAM : MANISH PITALE, J.
DATE : 12.02.2020
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ORAL JUDGMENT
Heard.
2. Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the parties.
3. By this writ petition, the petitioner, which is a group gram panchayat from District Buldhana, has challenged order dated 13/06/2016 passed by the Court of Joint Civil Judge, Junior Division, Buldhana (Trial Court), whereby an application for condonation of delay of 290 days in moving an application under Order IX Rule 13 of the Code of Civil Procedure (CPC), has been rejected.
4. The respondents had filed Special Civil Suit No.53 of 2012 (new number) in the year 2006 against the petitioner, seeking recovery of damages of Rs.3,00,000/-, on the ground that the husband of respondent No.1 had suffered injuries and died due to the negligence on the part of the petitioner. The said suit was decreed by the Court below and ex parte decree dated KHUNTE ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 22:06:23 ::: 3/11 WP4465.16-Judgment 03/03/2013 was passed against the petitioner, directing that the petitioner shall pay a sum of Rs.3,00,000/- with interest at the rate of 8% per annum to the respondents within a period of three months and if the said amount was not paid within the period of three months, rate of interest would be 12% per annum on the balance amount till the complete payment was made.
5. The petitioner filed an application for setting aside the ex parte decree under Order IX Rule 13 of the CPC, along with an application for condonation of delay. The said applications were filed on 10/02/2014. In the application for condonation of delay, it was stated that since summons issued in the suit were served on the clerk of the petitioner gram panchayat and the clerk was on leave, due to inadvertence, he did not bring the said notice/ summons to the notice of the Secretary of the gram apnchayat, as a result of which the Court below proceeded ex parte against the petitioner. It was further claimed that the Secretary of the petitioner at the relevant time was transferred to another place, which was also a reason for the petitioner not being able to contest the matter on merits before the Court below. It was KHUNTE ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 22:06:23 ::: 4/11 WP4465.16-Judgment claimed that as soon as the petitioner became aware about the ex parte decree passed against it, applications were moved after obtaining certified copies and immediately thereafter application for setting aside the ex parte decree along with application for condonation of delay were filed before the Court below.
6. By the impugned order dated 13/03/2016, the Court below refused to accept the reasons stated by the petitioner seeking condonation of delay. It was found that sufficient cause was not made out for condonation of delay and accordingly the application was dismissed, as a consequence of which the application seeking setting aside ex parte decree stood rejected without consideration on merits.
7. The learned counsel appearing for the petitioner submitted that the Court below ought to have taken a lenient view in the matter, particularly because the petitioner is a group gram panchayat of a small village in far flung district of Buldhana and due to lack of awareness on the part of the employees of the petitioner, the Court below had proceeded ex parte and thereafter delay had occurred in moving the application for setting aside the KHUNTE ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 22:06:23 ::: 5/11 WP4465.16-Judgment ex parte decree. It was submitted that the petitioner could have been put to appropriate conditions by the Court below for condoning delay so that the application for setting aside ex parte decree could be considered on merits. It was further submitted that the Court below ought to be decided the lis between the parties on merits, rather than on hyper technicalities.
8. On other hand, the learned counsel for the respondent submitted that the reasons given in the application for condonation of delay were not convincing and that the question of condonation of delay ought to be considered in the facts and circumstances of the individual case. According to the learned counsel appearing for the respondents, the petitioner had failed to make out a case for the Court to adopt a liberal approach. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Lanka Venkateswarlu v. State of A. P., reported in (2011) 4 SCC 363.
9. Heard learned counsel for the rival parties and perused the impugned order and record. Perusal of the impugned order shows that the Court below did not find the reasons put forth on KHUNTE ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 22:06:23 ::: 6/11 WP4465.16-Judgment behalf of the petitioner seeking condonation of delay as being sufficient and acceptable. It was found that the delay of 290 days was not satisfactorily explained on behalf of the petitioner. An observation was made in the impugned order that the entire application seeking condonation of delay was silent and there was no whisper regarding delay that was caused in preferring the application after receipt of certified copies of the judgment and decree.
10. A perusal of the material on record shows that the delay that has occurred in the present case is of 290 days. The petitioner received certified copies of the judgment and decree on 03/02/2014 and the application for setting aside ex parte decree along with the application for condonation of delay were filed on 10/02/2014. Thus, after having received the certified copies of the judgment and decree, the petitioner had indeed moved the aforesaid applications before the Court below in less than ten days. A perusal of the reasons given in the application seeking condonation of delay shows that the petitioner has attributed lack of understanding and knowledge of the seriousness of the matter KHUNTE ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 22:06:23 ::: 7/11 WP4465.16-Judgment on the part of the clerk, who was alleged to have received the summons and who went on leave thereafter. It is also stated that the then Secretary of the petitioner gram panchayat was transferred, which also contributed towards delay on the part of the petitioner in filing the application for setting aside ex parte decree. It has to be appreciated that the petitioner in the present case is a public body, wherein the awareness and urgency expected of a private individual may not be prevalent. Although the stand on the basis of which sufficiency of cause for condonation of delay cannot differ when the Court considers an application for condonation of delay filed on behalf of a public body, it goes without saying that the very nature of functioning of such bodies is different from a private individual, who might be adversely affected by a proceeding pending before the Court of law. It is in this context that the application for condonation of delay filed on behalf of the petitioner needs to be appreciated. Equally, it needs to be appreciated as to what would the petitioner have gained by deliberately delaying approaching the Court below to have the ex parte decree set aside. In fact, it would have been for the benefit of the petitioner to have immediately moved the KHUNTE ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 22:06:23 ::: 8/11 WP4465.16-Judgment Court below for setting aside the ex parte decree.
11. Viewed in this context, the statement made on behalf of the petitioner that when the said decree came to the knowledge of the petitioner, immediate steps were taken to obtain certified copies, needs to be accepted. The record also shows that immediately upon receipt of such certified copies, the petitioner did file the said applications before the Court below seeking setting aside of ex parte decree and for condonation of delay in approaching the Court.
12. Insofar as judgment in the case of Lanka Venkateswarlu v. State of A. P. (supra) is concerned, on which the learned counsel for the respondent has placed reliance, a perusal of the said judgment shows that a delay of 3703 days was sought to be condoned by the applicant therein. It is also settled law that merely because the delay is of larger number of days, it would not be a ground to refuse condonation of delay, yet, the fact that in the present case, the delay was of 290 days and the petitioner filed application before the Court below immediately within 10 days of having received of the certified copies, shows that the said KHUNTE ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 22:06:23 ::: 9/11 WP4465.16-Judgment judgment of the Hon'ble Supreme Court may not apply to the facts of the present case.
13. This Court is of the opinion that the nature of the suit filed in the present case is also relevant, because the respondents are seeking specific amount towards damages and a specific prayer i.e. Clause (c) in the prayer made before the Court below in the plaint shows that interest at the rate of 12% per annum is also sought on the amount of compensation by the respondents herein. Thus, even if the suit is to be considered again on merits, and eventually a decree is passed in favour of the respondents (original plaintiffs), the component of interest would concern a longer period of time and in that sense the respondents would be compensated for the period that elapses during the pendency of proceedings before the Court. It is made clear that this Court is not expressing any opinion on the merits of the claim of the petitioner regarding the prayers made in the application for setting aside the ex parte decree, which is yet to be considered on merits by the Court below.
14. Insofar as the question of condonation of delay is KHUNTE ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 22:06:23 ::: 10/11 WP4465.16-Judgment concerned, on the basis of the material available on record, this Court is of the opinion that the Court below ought not to have rejected the application and the same could have been allowed by imposing appropriate conditions on the petitioner.
15. In view of the above, the writ petition is allowed in the following terms.
(a) The impugned order passed by the Court below refusing to condone delay is quashed and set aside.
(b) The application for condonation of delay filed on behalf of the petitioner is allowed, subject to the petitioner depositing amount of Rs.6,00,000/- before the Executing Court within a period of eight weeks from today.
(c) Upon deposit of the said amount before the Executing Court within the stipulated period of time, the Court below shall take up the application for setting aside ex parte decree filed on behalf of the petitioner.
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(d) The said application seeking setting aside ex parte decree shall be decided expeditiously by the Court below and in any case within a period of three months from today.
(e) This Court has not expressed any opinion on the merits of the said application for setting aside the ex parte decree filed on behalf of the petitioner.
(f) The amount that shall be deposited by the petitioner before the Executing Court shall be invested in a fixed deposit in a Nationalized Bank by the Executing Court and its disbursal shall be subject to further proceedings in the matter.
16. Rule is made absolute in the above terms. No order as to costs.
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