Allahabad High Court
Neelesh Agarwal vs Ishaan Buildtech And 4 Others on 9 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1698
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR In Chamber Case :- MATTERS UNDER ARTICLE 227 No. - 5153 of 2019 Petitioner :- Neelesh Agarwal Respondent :- Ishaan Buildtech And 4 Others Counsel for Petitioner :- Ravi Anand Agarwal,Manish Goyal(Senior Adv.),Shreya Gupta,Shri Manish Goyal (Senior Advocate) Counsel for Respondent :- Ghanshyam Das Mishra,Ashutosh Srivastava Hon'ble Jayant Banerji, J.
1. This petition seeks setting aside the order dated 26.04.2019 passed by the Civil Judge (Senior Division), Bareilly in Misc. Case No.59 of 2017. By that order, the application Paper no.4C filed by the defendant-respondents under Section 5 of the Limitation Act for condoning the delay in filing an application Paper No.5C under Order 9 Rule 13 of the Code of Civil Procedure, 19081, was allowed on payment of cost of Rs.30,000/-. By the same order a subsequent date was fixed for disposal of the application paper no.5C filed for setting aside the ex-parte decree dated 22.12.2003 passed in Original Suit No.158 of 2000.
2. It appears from the petition that the petitioner filed Original Suit No.158 of 20002 for a decree of mandatory prohibitory injunction in respect of Gata Nos.324 and 325 and Plot No.14A for restraining the 21 defendants from causing any interference in the peaceful possession of the plaintiff over Gata Nos.324 and 325 (southern half), Udaipur Khas, Bareilly by forcibly entering into an unlawful possession or from raising any constructions over any part thereof, unless the defendant no.1 seeks partition by metes and bounds of his share therein. Another relief appears to have been sought in the suit, for declaration of the sale-deeds from serial nos.8 to 15 under Schedule-A to the plaint and the sale-deeds mentioned at serial nos.4 to 10 under Schedule-B in respect of Gata No.325, Udaipur Khas, Bareilly, as void. The sale-deeds pertaining to Plot No.14A in favour of the defendant-respondent nos.4 and 5 on 17.12.1999 was mentioned at serial no.4 of Schedule-B to the plaint.
3. On 17.04.2000, an ex-parte interim order was granted by the court below restraining the defendants from raising any constructions over the suit property. The defendant-respondent nos.4 and 5, who were arrayed as defendant nos.15 and 14 respectively in the suit of 2000, filed an objection against the temporary injunction.
4. On 19.09.2001, an application being paper no.205-C, signed jointly by the plaintiff-petitioner and the defendant-respondent no.5, was filed before the court below stating that after consideration of the record, the plaintiff-petitioner has found that the sale-deed in favour of Manoj Gupta, the defendant-respondent no.5, was lawful and, therefore, he is entitled to raise constructions over the property so purchased by him. It was, accordingly, prayed in that application that the ad-interim injunction against the defendant-respondent no.5 (defendant-respondent no.14 in the suit of 2000) be vacated and recalled and the plaintiff-petitioner has no objection to it. On 19.09.2001 itself, the court below modified the interim order dated 17.04.2000 as far as the defendant-respondent no.5 was concerned. It is stated in the petition that though at the stage of contest of the application for temporary injunction, a limited settlement took place to permit the defendant-respondent no.5 to continue with the constructions being raised by him but thereafter no final settlement took place between the parties and no compromise in terms of Order 23 Rule 3 of the CPC was filed nor any compromise was ever rendered by the trial court. It is further stated that the plaintiff-petitioner also never abandoned his claim against any of the defendants. It is stated that the defendant-respondents were fully conscious of the said fact and that they continued to appear in the suit even after filing of the application 205-C. It is stated that the defendant-respondent no.5 got filed a vakalatnama of another counsel on his behalf on 03.07.2002. The suit was finally decreed vide judgment and order dated 22.12.2003 injuncting all the defendants permanently from raising any constructions over the suit property as well as interfering in the possession of the plaintiff-petitioner over the suit property.
5. It is stated that thereafter, the respondent nos.1, 2 and 3 alongwith the defendant-respondent nos.4 and 5 filed a Original Suit No.153 of 20163 seeking permanent injunction against the plaintiff-petitioner (of suit of 2000) from interfering in the constructions raised subsequent to the passing of the order dated 19.09.2001 in the suit of 2000. The issue no.3 framed by the trail court in the suit of 2016 was that 'whether in the facts and circumstances, the plaint was liable to be rejected under Order 7 Rule 11 CPC'. This issue was decided in favour of the plaintiff-petitioner and the plaint was rejected by means of the order dated 29.08.2017. This was challenged in First Appeal No.667 of 2017 before this Court, which was dismissed on 04.10.2017 with the observation that the remedy against the ex-parte decree passed in the suit of 2000 is by way of appeal/application. It is stated that then the defendant-respondents moved an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the ex-parte decree dated 22.12.2003 passed in the suit of 2000. This application was accompanied with a delay condonation application under Section 5 read with Section 14 of the of the Limitation Act. Both these applications were dated 28.10.2017 which came to be registered as Misc. Case No.59 of 2017. By the order impugned, the delay condonation application under Section 5 of the Limitation Act has been allowed.
6. An amendment application was filed in the present petition which was allowed. It has been stated therein that the power of attorney executed in favour of the respondent no.3 on 02.09.2014 by the defendant-respondent nos.4 and 5 stood exhausted inasmuch as the plot no.14A came in the ownership of respondent nos.1 and 2 through two distinct sale-deeds and the respondent no.3 happens to be one of the partners in each of the firms, namely, the respondent nos.1 and 2. The respondent nos.1, 2 and 3 were complete strangers to the suit proceedings and application under Section 5 of the Limitation Act alongwith the application under Order 9 Rule 13 CPC could not have been filed at their behest. It is stated that the court below has acted erroneously in excess of jurisdiction by carving out a case not pleaded by the parties while allowing the delay condonation application under Section 5 of the Limitation Act. It is stated that the paper no.205-C filed before the court below was not signed by Sunita Maheshwari, the defendant-respondent no.4, who was the joint holder of plot no.14A alongwith Manoj Kumar Gupta and there is no independent authority given by Sunita Maheshwari in favour of Manoj Kumar Gupta. It is also stated that the modification of the interim order dated 17.04.2000 is of no consequence as the recital in the paper no.205-C is with respect to holding of Manoj Kumar Gupta alone. Hence, there is no concealment and modification of the interim order or an order passed on paper no.205-C is of no consequence as it cannot have the consequence of altering the rights in favour of the petitioner in terms of the decree dated 22.12.2003.
It is stated that a Special Leave Petition was filed by the respondent nos.1, 2 and 3 before the Supreme Court against the judgment and order dated 04.10.2017 passed by this Court in First Appeal No.667 of 2017 which is pending before the Supreme Court. It is stated that once the matter is engaging the attention of the Supreme Court, the respondents cannot be allowed to approbate and reprobate and avail two remedies for the same cause of action and the same is an abuse of the process of the Court.
7. A counter affidavit has been filed by the defendant-respondent no.3 in which it has been stated that the plaintiff and the defendant No.1 of the suit of 2000 had a common ancestor who was recorded bhumidhar over the land bearing Gata No. 324 and 325 which is now within the municipal limits of Bareilly. He was survived by Sahu Shanti Kumar, Sahu Ram Kumar. Sahu Ram Kumar was survived by Satya Prakash and Om Prakash. Thereafter, Om Prakash was survived by Neelesh Agarwal (the plaintiff-petitioner) and names of Satya Prakash and Neelesh Agarwal were recorded as co-tenure holders in the revenue records relating to said lands. The suit of 2000 was filed by the plaintiff on 17.4.2000 and by an exparte ad-interim injunction order of the same date, the defendants were restrained from raising construction over the respective plots and summons/notices were issued. It is stated in paragraph no.6 of the counter affidavit that the defendant nos. 8, 9 and 12 appeared in the suit of 2000 and the plaintiff entered into a compromise with them while admitting the sale deeds executed by defendant No.1 in their favour and moved a joint application before the court below and got the exparte interim order dated 17.4.2000 vacated against them and also permitted them to raise construction over the plot under those sale deeds which application was allowed by the court below. It is stated in paragraph no.7 of the counter affidavit that thereafter, the defendant Nos. 10 and 11 also appeared in the suit of 2000 and similar compromise was entered into between them and the plaintiff and pursuant thereto, the exparte interim injunction order dated 17.4.2000 was vacated against them and they also were permitted to raise constructions over the plots under those sale deeds. Thereafter, the defendant nos. 14 and 15 of the suit of 2000 (respondent no. 5 and 4 respectively to this application) appeared in the suit of 2000 and a compromise was entered into between the plaintiff Neelesh Agrawal and Manoj Gupta (respondent No.5) and they filed a joint application for compromise ( paper No. 205-C) admitting that plaintiff Neelesh Agarwal was satisfied that the sale deed executed by his uncle Satya Prakash in favour of Manoj Gupta is lawful and Manoj Gupta is entitled to raise constructions over the property purchased by him and prayed for vacation of the injunction order dated 17.4.2000 against Manoj Gupta. The court below by its order dated 19.9.2001 accepted the said application for compromise and vacated the exparte ad interim injunction order dated 17.4.2000 to the extent of defendant No. 14 (Respondent No. 5). It is further stated in paragraph no.13 of the counter affidavit that an Original Suit no.151 of 2014 (Rajan Kumar v. Neelesh Agarwal) was filed in which an application for compromise was filed admitting the plaintiff therein is owner of plot no.14-B vide sale-deed dated 17.12.1999 and the suit was decided accordingly.
8. It is stated in the counter affidavit that since the plaintiff of suit of 2000 admitted the sale deed executed in favour of defendant-respondent and abandoned his claim against them, as such the defendant-respondents were advised by their counsel that they were not required to take part in further proceedings in suit of 2000. It is stated that the defendant No. 14 also got the order passed by the court below on his application (paper No. 205C) confirmed through an advocate Mrs. Abha Agarwal who filed her vakalatnama in the suit of 2000 and after perusing the order dated 19.9.2001 she also advised the defendant No. 14 that now there is no claim against him and he is not required to take part in further proceedings in suit as such, the defendant No. 14 did not take part in further proceedings in suit of 2000. It is stated that thereafter, the plaintiff moved an application for amendment in suit of 2000 to declare the sale deed executed by his uncle Satya Prakash null and void but the copy thereof was not supplied to the counsel for the defendant Nos. 14 and 15 as such, that application was not within the knowledge of defendant nos. 14 and 15. The amendment application was allowed by the court below and the suit was decreed exparte by the court below by its judgment and decree dated 22.12.2003 without going through the records regarding the admission of Neelesh Agarwal (plaintiff) with regard to sale deed executed in favour of several persons including defendant Nos. 14 and 15.
9. It is stated that the defendant nos. 14 and 15 executed a power of attorney on 2.9.2014 in respect of said plot in favour of respondent No.3, Sunil Verma who in turn executed sale deed dated 4.9.2014 and 10.10.2014 in favour of Ishan Buildtech and P.N. Infratech respectively and their names have been recorded in the revenue records relating to the said lands. Ishan Buildtech and others filed the suit of 2016 which was rejected under order 7 Rule 11 CPC. The First Appeal filed against rejection of plaint before this court was dismissed on 4.10.2017 with the direction that "if any remedy is available is to file an appeal/application against exparte decree in suit No. 158 of 2000, the applicant is free to avail the same".
Accordingly, an application under Order 9 Rule 13 C.P.C was moved by the respondent alongwith an application under Section 5 of the Limitation Act for setting aside the exparte decree passed in the suit of 2000.
10. In the rejoinder affidavit filed on behalf of the plaintiff-petitioner, it has been denied that he had abandoned his claim at any stage though at the state of contest of temporary injunction application, the injunction order was modified so as to permit the defendant-respondent No.5 to continue with the construction being raised by him. It has been stated that mutation in the revenue records pertaining to the sale deed executed in favour of Ishan Buildtech and P.N. Infratech by respondent no.3 was challenged by the plaintiff-petitioner before the Additional Commissioner (Judicial) and the effect and operation of the order passed by the Tehsildar was stayed and the proceedings are still pending before the Additional Commissioner. It has been stated that the court below while condoning the delay of more than 15 years, has failed to strike a balance. There was also no assertion in the entire delay condonation application that the defendant-respondents had no knowledge of the decree rendering the application defective for want of relevant pleadings. The contents of paragraph nos. 6, 7 and 13 of the counter affidavit have not been denied.
Submissions of the learned counsel
11. Shri Manish Goyal, learned Senior Advocate appearing for the petitioner has submitted, while referring to the plaint of suit of 2000, that the dispute with regard to defendant-respondent nos.4 and 5 pertains to Plot No.14-A in respect of which the sale deed was executed on 17.12.1999. It is stated that the joint application being paper no.205-C has not been filed by Sunita Maheshwari but only between the plaintiff-petitioner and the defendant-respondent no.5. However, the ex-parte judgment and order dated 22.12.2003 operates against both the defendant-respondent nos.4 and 5. The decree has attained finality. It is contended that after the order dated 19.09.2001 passed by the court below modifying the injunction order dated 17.04.2000, a vakalatnama was filed by one Smt. Abha Agarwal, on behalf of Manoj Kumar Agarwal, the defendant-respondent no.5. It is stated that it cannot be said that the defendant-respondents had no knowledge of the ex-parte decree. It is stated that on the date of institution of the suit of 2016, the applicants had knowledge of the ex-parte decree dated 22.12.2003. It is further contended that the defendant-respondents misrepresented before the court below that in the First Appeal, the High Court had directed decision of the suit of 2000 on its merits. Learned Senior Advocate contended that the affidavit in support of the application under Section 5 of the Limitation Act and the application Order 9 Rule 13 CPC was filed by the defendant-respondent no.3 claiming himself to be a power of attorney holder of the defendant-respondent nos.4 and 5 and the partner of the defendant-respondent nos.1 and 2 and has testified the contents of the affidavit as true on the basis of his personal knowledge. It is stated that the power of attorney was not filed alongwith the two applications and the affidavit and, therefore, it cannot be taken to be an affidavit on behalf of the defendant-respondent nos.4 and 5 who were actually the defendants in the suit of 2000. Learned Senior Advocate has relied upon a decision of the Full Bench of this Court in the case of Syed Wasif Husain Rizvi Vs. Hasan Raza Khan and others4 to contend that the power of attorney holder did not have the authority to file the application and the affidavit because he did not satisfy the conditions laid down by this Court in the said decision. It is contended that on one hand, in the Special Leave Petition before the Supreme Court, the defendant-respondents have challenged and questioned the observations made by the High Court in its judgment dated 4.10.2017 passed in the First Appeal directing the petitioner to avail the remedies to move an application for setting aside the ex-parte decree dated 22.12.2003 and, on the other hand, they have filed the applications under Order 9 Rule 13 CPC and under Section 5 of the Limitation act on the basis of the observations made in the judgment of the High Court dated 4.10.2017. It is contended that in the Special Leave Petition, the Supreme Court by its order dated 9.2.2018 had issued notices only to the limited extent to explore the possibility of settlement between the parties.
In support of his contention, learned counsel for the plaintiff-petitioner has cited the following judgements:-
1Baljeet Singh & Others Vs. State of U.P. and others (2019) 15 SCC 33 2 Balwant Singh Vs. Jagdish Singh and others (2010) 8 SCC 685 3 Jebasundari and others Vs. S. Tharmar (2018) 6 MLJ 523 4 Popat Bahiru Govardhane Vs. Special Land Acquisition Officer and others 2013(10) SCC 765 5 P.K. Ramachandran Vs. State of Kerala AIR 1998 SC 2276 6 M/s Auto Oil Company Vs. Indian Oil Corporation 2011 (5) ADJ 800 7 Rajendra Prasad Gupta Vs. Prakash Chandra Mishra & ors AIR 2011 SC 1137 8 Syed Wasif Husain Rizvi Vs. Hasan Raza Khan and others 2016(2) ADJ 571 9 Vidhyadhar Vs. Manikrao 1999(3) SCC 573 10 S. Kesari Hanuman Goud Vs. Anjum Jehan and others 2013(12) SCC 64 11 Sneh Gupta Vs. Devi Sarup and others (2009) 6 SCC 194
12. On the other hand, Shri Shashi Nandan, learned Senior Advocate for the defendant-respondents has contended that by means of the impugned order, the delay condonation application filed under Section 5 of the Limitation Act has been allowed on payment of cost but the application under Order 9 Rule 13 CPC is yet to be considered. It is contended that relief (b) in the suit of 2000 was incorporated by way of amendment. The validity of the sale deed executed in favour of the defendant-respondent nos.4 and 5 is not in issue. He contended that by means of the order dated 17.04.2000 granting temporary injunction, the court below directed maintenance of status quo with regard to the southern half part of the disputed plot, Khasra No.325. It is contended that on perusal of the joint application (paper no.205-C) dated 19.09.2001 filed both by the plaintiff-petitioner and the defendant-respondent no.5 enclosed as Annexure-5 to the petition, three things appear. Firstly, it is an indication of a prior settlement. Secondly, the plaintiff had abandoned his claim with regard to the sale deed in favour of the defendant no.14 (defendant-respondent no.5). Thirdly, the application was moved by the parties and was given effect to by the court below by means of an order dated 19.09.2001 recalling the order dated 17.04.2000 insofar as the defendant-respondent no.5 is concerned. It is, therefore, contended that it was the duty of the plaintiff-petitioner to have placed this document and the order passed by the court thereon before the court below prior to passing of the ex-parte judgment and decree dated 22.12.2003. Hence, the court below was justified in holding that it was a case of fraud on part of the plaintiff-petitioner and that is a ground for condonation of delay. It is stated that in the ex-parte judgment and decree dated 22.12.2003, there is no decree for cancellation of the sale deed. It is, therefore, contended that the plaintiff-petitioner is not entitled to resist the sale deed executed in favour of the defendant-respondent no.5, which is admitted to be valid. It is further contended that in the suit of 2016, the plaintiff nos.4 and 5 were partners. Learned Senior Advocate contends that the defendant-respondents had only to show the admission of the plaintiff-petitioner made in the application, paper no.205-C, and that under such circumstances, non-attendance of the defendant-respondent nos.4 and 5 in the suit of 2000 after recall of the temporary injunction order dated 17.04.2000 in their favour, was quite justifiable and would be sufficient cause for not filing the application under Order 9 Rule 13 CPC within time.
Learned counsel for the respondents has relied upon the following judgements:-
1Bhagmal and others Vs. Kunwar Lal and others (2010) 12 SCC 159 2 Ram Prakash Agarwal and another Vs. Gopi Krishan (dead through Lrs) and others (2013) 11 SCC 296 3 N. Balkrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 4 Raisa Sultana Begam and others Vs. Abdul Qadir and others AIR 1966 All. 318 5 M.K. Prasad Vs. P. Arumugam 2001(6) SCC 176 6 Santi Prasad Gupta Vs. D.D.C. Camp at Meerut and others 1981( Supp) SCC 73 7 Bhagmal Vs. M.P. Cooperative Marketing & Consumer Federation Ltd and others 2003(11) SCC 727 8 Mohammad Shafeeq Vs. Mirza Mohammad Husain and others 2002 (9) SCC 460
13. In rejoinder, Shri Manish Goyal, learned Senior Advocate for the plaintiff-petitioner has contended that there is no application for abandoning the claim or withdrawal of suit against the defendant-respondent no.4. He contended that under the circumstances, the case would not fall within the category of abandonment of suit. It is stated that no specific date has been mentioned in the application under Section 5 of the Limitation Act regarding the date on which the defendant-respondents had knowledge of the ex-parte decree dated 22.12.2003. It is contended that after the order dated 19.09.2001 was passed by the court below pursuant to the joint application, paper no.205-C, the defendant-respondent nos.4 and 5 had engaged another lawyer in the proceedings and did not withdraw their right to contest the proceedings. It is contended that there is no case of fraud as the defendant-respondent nos.4 and 5 have displayed positive conduct by engaging another counsel after 19.09.2001. With reference to the ex-parte judgment and decree dated 22.12.2003, it is contended that the entire suit was decreed which included the sale deed, that is, both the reliefs were granted. It is contended that there is no question of any admission being made by the plaintiff-petitioner and the admission made, if any, is saved by Section 52 of the Transfer of Property Act.
Discussion & analysis
14. In the suit of 2000, the application paper No. 4C was filed alongwith another application (paper No. 5C) under Order 9 Rule 13 CPC supported by an affidavit (paper No. 6C). In the application paper No. 4C, condonation of delay was sought on the basis of the averments in the accompanying application Paper no.5C and the affidavit.
15. In paper No. 5C, it was stated that when the plaintiff sought to enforce the exparte decree, the suit of 2016 was filed which was dismissed under the provisions of Order 7 Rule 11 CPC on 29.08.2017 of the ground of existence of the exparte decree. It was stated that the First Appeal of 2017 was filed in the High Court which was disposed of with observation that remedy of applicants is by way of seeking setting aside the exparte decree and not by a separate suit and the High Court allowed the remedy to the applicants for setting aside the decree. It was stated that the applicants had no occasion to doubt the bonafides of the O.P. Earlier to the date of institution of the suit of 2016, time consumed was under bonafide legal advise. That due to oversight, the applicants had moved the application on 18.10.2017 in the court of the Civil Judge (Sr. Division) Bareilly, but on detecting the mistake the present application was being filed and an application has been moved in the court of the Civil Judge (Sr. Division) for withdrawal of the application mistakenly filed.
16. In the affidavit paper No. 6C the reasons for delay have been stated in paragraph nos. 5 to 7 as follows:
"5) That pursuant to disturbance at the instance of O.P. and upon his threat to execute the exparte decree dt. 22.12.2003 passed in O.S. No. 158/2000- Neelesh Agarwal Vs. Satya Prakash and others, the applicants filed suit No. 153/2016- Ishaan Buildtech and others Vs. Neelesh Agarwal in the court of Cl. J(Sr. Dn) Bareilly, which was unfortunately dismissed under the provisions of O. VII, rule 11 CPC and the appeal preferred against order dt. 29.8.2017 passed in O.S. No. 153/2016, their Lordship of Hon'ble High Court of Judicature at Allahabad in Ist Appeal No. 667/2017 observed that remedy of the applicants lie in moving the restoration application in the case ( O.S. No. 158/2000) and not by a separate suit and with these observations the said Ist appeal was disposed off, vide order dt. 04.10.2017. The certified copy of the said order could be made available to the deponent on 17.10.2017.
6) That applicants had no occasion to doubt the bonafide of O.P and immediately upon his threat to enforce the exparte decree, the applicants had filed O.S. No. 153/2016- Ishaan Buildtech & others Vs. Neelesh Agarwal, bonafide believing that exparte decree had been obtained by concealment of matrial facts and by suppression of order passed on application 205/C. The time consumed therein was most bonafide and under legal advise.
7) That there was no negligence or want of due diligence on the part of the applicants and the delay in not moving the restoration application earlier was due to facts and circumstances as stated above and in the accompanying restoration application were most bonafide. For the ends of justice delay deserves to be condoned under the provisions of Sec. 5 read with Sec. 14 Limitation Act and u/s 151 C.P.C.".
17. The court below while considering the application 4C held that under the circumstances, provisions of Section 14 of the Limitation Act are not attracted. Then the court below considered the application on the basis of section 5 of the Limitation Act. The joint application filed in the suit of 2000 bearing paper No. 205C was considered. The court below observed that the order dated 19.9.2001 was passed on that application on the ground that after going through all the record, the plaintiff was satisfied that the sale deed executed in favour of defendant No.14 is correct and that he can made his construction thereon and, therefore, the interim injunction order granted against him be recalled. The interim injunction granted on 17.4.2000 was accordingly modified to the extent that it will not affect the defendant No. 14. The court below observed that in the suit of 2000, though, cancellation of sale deeds were also sought, but the court only passed exparte prohibitory injunction on 22.12.2003. The court below held that on perusal of the aforesaid order dated 19.9.2001 as well as paper No. 205C, it is clear that the plaintiff had admitted the right and possession of applicant No.1( defendant No. 14) in respect of plot No. 14A, but while passing of exparte decree, the plaintiff did not draw the attention of the court to the order dated 19.9.2001. The court below observed that though it is expected of the court that it will peruse the previous orders passed by it, but in the present case, the exparte decree was passed by his predecessor in office by mistake and due to concealment of fact by the plaintiff. The court below further observed that the plaintiff had greater responsibility after passing of the order dated 19.9.2001 by the court that he ought to have placed the correct facts before the court and this demonstrated that the plaintiff had deliberately concealed the fact from the court and fraudulently got the decree dated 22.12.2003 passed. The court below was of the view that under the circumstances, only on the ground of delay, the doors for hearing of the case should not be closed and that on the ground of delay no person can be denied justice. The court below observed that though the applicant nos. 1 and 2 (defendant nos. 14 and 15) were required to be aware of their defense in which they have defaulted, but that can be compensated by damages. While referring to the fact that all the defendants were not parties, the court below referred to the proviso to Order 9 Rule 13 CPC and held that the application would be maintainable. As far as question with regard to applicant nos. 3 to 5 being strangers to the suit, the court observed that the applicant nos. 1 and 2 were parties in the original suit and as such the application is maintainable, and the applicant nos. 3 to 5 have the option that in case the exparte decree is set aside, they can move an application for being impleaded as party in the original suit under the provisions of order 22 Rule 10 C.P.C. With regard to the power of attorney executed in favour of applicant no. 5 (defendant no. 3), the court below was of the opinion that since the applicant nos. 1 and 2 are parties in the original suit and as such, the application shall not be rendered not maintainable on that ground. Accordingly, the application ( paper No. 4C) was allowed with cost of Rs. 30,000/. It was specified that for disposal of application 5C, the case be put up on 8.5.2019. It was also specified that if by the specified date, the cost is not deposited, the order impugned would lose its effect.
18. The only point required to be considered by this Court at this stage is whether the court below has correctly decided that there was sufficient cause for condoning the delay in filing the application under Order 9 Rule 13 CPC.
19. A perusal of the plaint enclosed reveals that the suit of 2000 was filed for the following relief:
(a) that by a decree of mandatory prohibitory injunction the defendants be restrained from causing any interference in the peaceful possession of the plaintiff over Gata Nos. 324, 325 (southern half) Udaipur Khas, Bareilly by forcibly entering into its unlawful possession or from raising any constructions over any part thereof in any manner either by themselves or through their agents, servants etc. unless defendant no. 1 seeks partition by meets and bound of this share therein;
(b) that by the adjudged & declared that the sale deeds mentioned of sl. no. 8 to 15 under schedule and sale deeds mentioned at sl. no. 4 to 10 under schedule B in respect of Gata No. 325 Ujdaipur Khas Bly are void, ineffective & in operative & copy of the order of the Hon'ble Court may be sent to the office of SR Bareilly for proper noting in their records.
(c) Costs of the suit be awarded to the plaintiff against the defendants".
Schedule A and B to the plaint are as follows:
"Details of sale-deeds executed by defendant no.2 under POA dt. 11.11.94 for 2000 Sq.M. Plotted area comes to 1384.97 Sq.M. Schedule-A Sl.
Plot No. Area (Sq.M.) Date of execution Vendee 1 255.41 04.02.95 Kiran Pal Singh 2 Plot no.11 141.55 16.10.95 Surendra Khera 3 Plot No.5 167.22 26.10.95 Shanti Devi, Jagdish 4 Plot No.7 203.53 30.10.95 Radhey Shyam Gupta 5 Plot No.23 120.00 30.10.95 Manty Gupta 6 Plot No.18 171.00 4.11.95 Urmila Agr, Renu Agr.
7 Plot No.13 181.69 4.12.95 Krishna Babu, Usha Agr.
8 Plot No.12-B 177.63 4.12.95 Sunil Bhasin 9 Plot No.S-B 84.45 6.5.96 Ajai Gupta, Pritam 10 Plot No.23 120.00 29.3.97 Vijai Johri 11 Plot No.3 272.56 1.5.97 Vivendri Devi 12 Plot No.22 165.00 17.7.97 Asha Rani Khandiya 13 Plot No.45 88.00 14.8.97 Ajai Johri 14 Plot No.38, 30, 40, Plot No.11-B 93.79 24.8.97 Jogindra Kaur 15 Plot No.46 82.50 24.8.97 Vinod Chand 2799.33 As against permissible limit of 1384.57 Sq.M. It is again worth to mention here that both the power of attorney dt. 22.7.94 and 11.11.94 relate to Gata Nos.324 and 325 while all the sale-deed(s) so executed under both the attorneys relate back to gata No. 325 alone which again vendees the extent of authority of deftt. Nos. 2 and 4. Similarly defendant no.2 and 4 have collusively jointly executed saledeeds of plotted area of 2344, 19 Sq. M as against the permissible limit of 2077.46 sq.M. under POA of 3000 Sq. M. SCHEDULE-B Details of sale-deeds jointly executed by defendant no.1, 2 and 4 Sl.
Plot No. Area (Sq.M.) Date of execution Vendee 1 12 279.00 19.11.94 Sunil Bhasin Daizy 2 6 232.84 19.11.94 Dr. Ajay Gupta, Pratima 3 4 293.38 19.11.94 Manoj Gupta, Sushila 4 14-A 175.55 17.12.99 Manoj Gupta, Sunita 5 14-B 92.60 17.12.99 Rajendra Kumar, Ramesh Kumar 6 34, 35-B 285.91 17.12.99 Vinay Pradhan 7 15 279.00 17.12.99 Sharad Kumar 8 16 216.00 17.12.99 Nathoo Lal Gangaur 9 35-A, 36 285.91 17.12.99 Kaushal Pradhan 10 41 204.00 17.12.99 Atul Pradhan 234419.00 It is worth to mention here that seven forged sale-deed mentioned at Sl. No.4 to 10 above have been brought in existence by calling the SR Bareilly at the house defendant and by impersonation of defendant no.4 as he is absconding sine long. All these seven sale-deeds are altogether fake collusive & without consideration."
20. While passing the interim injunction order dated 17.4.2000, the court below directed as follows:
vr% izfroknhx.k dks uksfVl fnuakd 01-05-2000 ds fy;s fu;r dj tkjh gks। bl chp i{kdkj fookfnr IykV [kljk la 325 ds nf{k.kh vk/ks Hkkx ds lEcU/k esa ;FkkfZLFkfr dks cuk;s j[ksa pwfd vfoHkkftr lEifRr ds lEcU/k esa fdlh fof'k"B Hkkx ij fuekZ.k gksus ls ;g Hkkxhnkj mlds miHkksx ls oafpr gks ldrk gS। ekSds dh okLrfod fLFkfr ds lEcU/k esa oknh rqjUr deh'ku tkjh djkos। oknh vkns'k 39 fu;e 3 dk dk;Zikyu lqfuf'pr djssa।
"Therefore, let notices be issued to the defendants fixing 01.05.2000. In the meanwhile the parties shall maintain status quo with respect to the southern half part of the disputed plot khasra No.325 because with regard to the undivided property, if constructions are made on a specific part thereof, the co-sharer may be deprived of using the same. For ascertaining the factual situation at the site, the plaintiff shall take immediate steps for issuing a commission. The plaintiff shall ensure compliance of Order 39 Rule 3.
(English translation by Court)
21. The application bearing paper No. 205C which is a joint application filed by the defendant nos. 14 (defendant-respondent no.5) and the plaintiff reads as follows:-
"Sir, It is respectfully submitted that an ad-interim injunction order, restraining the defendants from raising any constructions over the property in suit has been passed in the above case. Now after going through the various documents, the plaintiff is fully satisfied that the sale deed in favour of defendant no. 14 is lawful and he is entitled to raise constructions over property so purchased by him. It is, therefore, prayed that the operation of ad-interim injunction against defendant no. 14 may kindly be vacated and recalled. The plaintiff has no objection to it".
(Manoj Gupta) (Neelesh Agarwal) Defendant no. 14 Plantiff. 19.9.2001.
On that application, the court below passed an order on 19.9.2001 which is as follows:-
19-9-2001 vkt oknh vf/koDrk dh vksj ls 205x izkFkZuk i= izkIr gksdj izLrqr fd;k x;k। e; 206x (illegible) o 207x odkyrukek ds izLrqar fd;k x;k। is'k gksdj vkns'k gqvk fd-
205x वादी dh vksj ls bl vk/kkj ij fn;k fd lHkh izi= /;kuiwoZd ns[kus ls oknh lUrq'V gS fd izfroknh ua0 14 ds i{k esa dh x;h fodz; lgha gS og viuk fuekZ.k dj ldrk gS । vr% mlds fo:} ikfjr vLFkk;h fu"ks/kkKk vkns'k okfil ys fy;k tk,।
lquk। izkFkZuk i= ds izdk'k esa izfroknh u0a 14 ds fo:} ikfjr vkns'k fnukad 17-4-2000 okil fy;k tkrk gS । 6x ij ikfjr vkns'k bl lhek rd la'kksf/kr fd;k tkrk gS fd mldk izHkko izfroknh ua0 14 ij ugha gksxk। i=koyh fu;r frfFk dks is'k gks।
19.09.2001 - Today an application 205C was filed and presented on behalf of the counsel for the plaintiff alongwith 206C (illegible) and 207 C vakalatnama. It is ordered that:
205C has been filed on behalf of the plaintiff on the ground that the plaintiff is satisfied, after perusing all documents carefully, that the sale in favour of the defendant no.14 is correct and he can make his constructions. Therefore, the temporary injunction granted against him be recalled. Heard. In the light of the application, the order dated 17.04.2000 passed against the defendant no.14 is recalled. The order passed on 6C is amended to the extent that it would not have effect against the defendant no.14. Put up the record on the date fixed. (English translation by Court)
22. A photocopy of the exparte judgement and order dated 22.12.2003 has been filed as Annexure no. 9 to the petition. The judgement opens with the sentence that the present civil suit has been lodged by the plaintiff against the defendants for permanent injunction. After stating the contents of the plaint and the cause of action appearing therefrom, it is noted by the trial court that though objections to the injunction application were filed by the defendant nos. 1 to 19 but no written statements were filed by any of the defendants. The documents filed by the plaintiff and the defendants were then mentioned which reveals that merely photocopies of copies of sale-deeds were filed by the plaintiff. As far as the photocopies of documents filed by the plaintiff were concerned, the court below noted that they could not be read as evidence and that oral evidence was filed by means of an affidavit. As far as the documents filed by the defendants were concerned, the court below observed that neither any written statements were filed, nor have the documents been proved, as such they cannot be read as evidence. The court below then noted that it is clear from perusal of the khatauni filed on behalf of the plaintiff, that the plaintiff is the co-sharer along with the defendant of the property in dispute and joint bhumidhar and joint owner, and the contents of the plaint are proved by the documentary evidence and affidavit filed by him.
The operative part of the judgement dated 22.12.2003 states that the suit is decreed exparte against the defendants and the defendants are permanently injuncted from creating any hindrance in the peaceful possession of the plaintiff over the half part on the south side of gata plot no.324, 325.
23. A copy of the decree passed in the suit of 2000 has not been filed. On perusal of the judgement dated 22.12.2003, it is evident that the court held that the photocopies of documents filed by the plaintiff (which included photocopies of the copies of sale-deeds under challenge) were inadmissible in evidence. Relying solely on the khatauni, which has not been filed in the instant petition, the court below has held that the plaintiff and the defendant (sic) are the co-sharer, co-bhumidhar and co-owner of the property in dispute. The operative part of the judgement dated 22.12.2003 relates to only a part of the relief (a) sought in the plaint, and, does not at all refer to the relief (b) by which declaration of the sale-deeds as void was sought.
24. As far as the present petition is concerned, admittedly, the sale-deed dated 17.12.1999 pertaining to plot no.14-A that appears at serial no.4 in the table appearing in Schedule-B of the plaint, is relevant. Admittedly, Schedule-B shows the names of Manoj Gupta and Sunita (defendant-respondent nos. 5 and 4 respectively, who are apparently husband and wife) as the vendees of the sale-deed in respect of plot no. 14-A. Paper no.205C, which is a joint application dated 19.09.2001 by the aforesaid Manoj Gupta and the plaintiff-petitioner, refers to that very sale-deed. Pursuant to this joint application, the temporary injunction granted by the court below on 17.04.2000 was modified on 19.09.2001 and it was ordered that the order (dated 17.04.2000) passed on application 6C would have no effect on the defendant No.14 (defendant-respondent no.5 herein).
25. It is contended by the learned counsel for the respondent that the joint application (paper no.205-C) dated 19.09.2001 filed by the plaintiff-petitioner and the defendant-respondent no.5 is an indication of a prior settlement, and that the plaintiff had abandoned his claim with regard to the sale deed in favour of the defendant no.14 (defendant-respondent no.5).
26. While disposing of the application Paper No.4C, the court below has observed that the plaintiff had admitted the right and possession of applicant No.1( defendant No. 14) in respect of plot No. 14A, but while passing the decree, plaintiff did not draw attention of the court to the order dated 19.9.2001. The court below further observed that the plaintiff had greater responsibility after passing of the order dated 19.9.2001 and he ought to have placed the correct facts before the court. The court below was of the view that under the circumstances, only on the ground of delay, the doors for hearing of the case should not be closed and that on the ground of delay no person can be denied justice.
27. The word 'admission' is defined under Section 17 of the Indian Evidence Act, 1972 which is as follows:-
"17. An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned".
Sections 31 and 58 of the Indian Evidence Act read as follows:
"31. Admissions not conclusive proof, but may estop.- Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained."
"58. Facts admitted need not be proved.- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
28. Prima facie, there appears to have been some understanding or settlement between the plaintiff-petitioner and the defendant no.14 (defendant-respondent no.5) pursuant to which the application paper no.205C was filed. This is a document admitted by the parties. In the present petition, it is admitted that a limited settlement took place. With the temporary injunction being lifted against the defendant no.14, it can be presumed that he would have made and completed the constructions over the land sold by the said sale-deed. Therefore, the situation arising out of the exparte decree dated 22.12.2003 would be, that on the one hand the permanent injunction would operate, and, on the other hand, the sale deed in favour of the defendant no.14, has not been declared void. This is a paradoxical situation.
29. Moreover, it is the contention of the learned counsel for the defendant-respondents that the plaintiff-petitioner had allegedly abandoned his claim with regard to the sale-deed executed in favour of the defendant no.14. Order 23 Rules 1 and 4 CPC pertain to, inter alia, abandonment of suit or a part of his claim by the plaintiff. The concept and scope of abandonment have been elaborately dealt with in two judgements of Kanhiya & others v. Mohabata & others5 and Annammal and others v. Chellakutti6. However, this aspect of the matter can only be considered should such a plea be raised before the court below.
30. Admittedly, no written statements have been filed by the defendants. Since substantive rights of the defendant-respondents are at stake, findings on the alleged admissions made by the plaintiff and the alleged abandonment of part of the claim by him, would be required from the court below in the interest of substantial justice, in the event such pleadings are raised by the defendants. As observed above, the contents of paragraph nos. 6, 7 and 13 of the counter affidavit, that speak of settlements with other defendants in the suit of 2000 as well as in a separate suit with regard to the the suit property, have not been denied in the rejoinder affidavit. No such settlement finds any mention in the judgement and order dated 22.12.2003 passed in the suit of 2000. The reply to paragraph nos. 6, 7 and 13 of the counter affidavit appears in paragraph no. 5 of the rejoinder affidavit which is as follows:-
"That in reply to the contents of paragraph nos. 6, 7 and 13 of the counter affidavit it is submitted that ex-parte ad-interim injunctions vacated by the Learned Court below with respect to certain other defendants of O.S. No. 158 of 2000 do not have any material bearing to the controversy involved herein. Interim injunction order vacated against each of the defendants was dependent on the peculiar facts and circumstances that existed qua the plaintiff and the respective defendant. Moreover, it is pertinent to note that even though ad-interim injunction orders were vacated as regards several defendants, yet the final decree passed by the Court below operated against all such defendants also."
31. The settlements entered into between the plaintiff-petitioner and several other defendants as mentioned in paragraph nos. 6, 7 and 13 of the counter affidavit are neither specifically nor impliedly denied, but, the contention of the plaintiff-petitioner is that the final decree operated against them also. It is noteworthy that the averment in paragraph no.13 of the counter affidavit pertains to Suit No.151 of 2014 (Rajan Kumar v. Neelesh Agarwal) in which it was stated that the plaintiff of Suit No.151 of 2014 is the owner of plot no.14-B and the suit was decided in terms of the compromise. Plot no.14-B appears at serial no.5 of Schedule-B of the plaint of the suit of 2000, in respect of the sale deed of which declaration of voidance is being sought. The decision in the above Suit No.151 of 2014, which is based on a compromise, is apparently in stark opposition to the judgement and order dated 22.12.2003 passed in the suit of 2000. There is no material on record to show what were the reliefs sought in Suit No.151 of 2014, that is to say, whether the decree of the suit of 2000 was challenged and whether fraud was pleaded. Even though the decision of the Suit No.151 of 2014 may not have a material bearing for purpose of the present petition, however, it does go to show the intent and conduct of the plaintiff-petitioner.
Judgements relied upon by the petitioner
32. The learned counsel for the petitioner has cited aforementioned cases of Baljeet Singh, Balwant Singh and Jebasundari in support of his contention that unless sufficient cause is shown, or when the delay is inordinate and vested rights have devolved on the decree holder, the application under Section 5 of the Limitation Act should be rejected. In the case of Baljeet Singh (supra), the Supreme Court was considering the inordinate delay of approximately 21 years in preferring the special leave petitions before the Supreme Court. The Supreme Court noticed that in the reference under Section 18 of the Land Acquisition Act, the reference court enhanced the compensation to Rs.30/- per square yard, but in the First Appeal, the High Court reduced the amount of compensation to Rs.22.20/- per square yard. Thereafter, after a period of approximately 21 years, the petitioners preferred those petitions claiming compensation at par with the compensation awarded to the land owners of village Kasna for which notification under Section 4 of the Land Acquisition Act was issued after a gap of four years from the issuance of notification under Section 4 of the Land Acquisition Act in respect of the land in the village of the petitioners. The only explanation given by the petitioners before the Supreme Court was that in December 2006, the claimants of village Kasna got compensation from the Supreme Court which came to be known to the petitioners concerned in the month of January 2017 causing a lot of heartburn but miseries overtook them. It took not only lots of courage in mustering support from the number of affected families but also it took time for the petitioners to collectively file the special leave petition. The Supreme Court observed that there is no explanation whatsoever to explain the huge delay of 21 years. The Supreme Court held that the petitioners had accepted the compensation and no grievance was made by them with regard to inadequacy of the compensation determined by the High Court. Therefore, on the ground of acquiescence, the petitioners would lose their right to complain. The Supreme Court observed to make out a case for condonation of delay, the applicant has to be make out a sufficient cause/reason which prevented him in initiating the proceedings within the period of limitation. Otherwise, he will be accused of gross negligence. The Supreme Court also considered the adverse impact/affect on the State/acquiring body, after the inordinate delay/laches, if they are directed to pay the enhanced amount of compensation. The Supreme Court observed that after the acquisition, the land was developed, infrastructure and amenities were laid and the developed land was allotted approximately 30 years earlier. Therefore, if the cost of acquisition was increased and the State/acquiring body directed to pay the enhanced compensation, it would be very difficult to recover the difference of amount of compensation from the allottees after decades of allotment.
In the case of Balwant Singh (supra), the Supreme Court was considering the delay in filing an application to bring on record the legal representatives of the deceased appellant. There was a delay of 778 days. In that case, the applicants had filed a one page application stating that they were not aware of the pendency of the appeal before the Court and came to know only in March 2010 from their counsel that the case would be listed for final disposal during the vacations in May 2010. Thereafter, the applications were filed on 15.04.2010. The Supreme Court held that even if the term 'sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The Supreme Court referred to the principles laid down by it in the case of Perumon Bhagvathy Devaswom v. Bhargavi Amma7 and held that they would control the exercise of judicial jurisdiction vested in the Court under the provisions.
In the case of Jebasundari (supra), the Madras High Court was considering a revision directed against an order of the District Munsif Court, dismissing the petition filed by the petitioners under Section 5 of the Limitation Act to condone the delay of 2170 days in filing the petition to restore the suit, which was dismissed for default on 12.03.2003. The Madras High Court held that length of delay is no matter and acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. While considering the judgment in Esha Bhattacharjee (infra), the principles for condoning the delay were stated and some further guidelines were added. Under the facts of that case, the Madras High Court dismissed the revision holding that the petitioners had failed to explain each and every days' delay and the trial court was absolutely right in dismissing the petition.
All the three aforesaid cases are distinguishable in view of the peculiar facts of the present case.
33. The learned counsel for the petitioner has then referred to the cases of Popat Bahiru Govardhane and P.K. Ramachandran, in support of his contention that the law of limitation has to be strictly applied and the court has no power to extend the statutory period of limitation on equitable grounds. In the case of Popat Bahiru Govardhane (supra), the challenge before the Supreme Court was of the judgment of the High Court which had upheld the judgment of the Land Acquisition Collector rejecting the application under Section 28A of the Land Acquisition Act on the ground of limitation. The Supreme Court held that the Court had no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.
In the case of P.K. Ramachandran (supra), the Supreme Court noted that the High Court had condoned the delay of 565 days in filing an appeal against the judgment and decree of a Sub Court in an arbitration application without recording any satisfaction that the explanation for delay was either reasonable or satisfactory. It was held that the law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds.
The aforesaid two judgements also are of no help to the petitioner as the facts of the present case are different.
34. Learned counsel for the petitioner has referred to a judgment in the case of Auto Oil Company (supra) to demonstrate that the case of Smt. Raisa Sultana Begam (supra), which has been referred to by the learned counsel for the respondents during the course of his arguments, has been noticed in this judgment as having been overruled by a Special Full Bench of this Court in the case of Sunni Central Board Vs. Sri Gopal Singh Visharad8. In the case of Rajendra Prasad Gupta (supra), which was referred to for the same reason as Auto Oil Company (supra), the Supreme Court held that the rules of procedure are handmaids of justice. It was held that there is no express bar in filing an application for withdrawal of the withdrawal application. However, in the present petition, since the learned counsel for the respondents argued that the petitioner had abandoned the claim against the defendant-respondents, reference to these judgments is of no avail.
35. As far as the reliance placed by the learned counsel for the petitioner on the judgement passed in the matter of Syed Wasif Husain Rizvi Vs. Hasan Raza Khan and others (supra) is concerned, the issue which was referred for adjudication to the Full Bench was that "whether a writ petition under Article 226 of the Constitution can be filed by a power of attorney holder." It was held by the Court as follows:-
"24. When a writ petition under Article 226 of the Constitution is instituted through a power of attorney holder, the holder of the power of attorney does not espouse a right or claim personal to him but acts as an agent of the donor of the instrument. The petition which is instituted, is always instituted in the name of the principal who is the donor of the power of attorney and through whom the donee acts as his agent. In other words, the petition which is instituted under Article 226 of the Constitution is not by the power of attorney holder independently for himself but as an agent acting for and on behalf of the principal in whose name the writ proceedings are instituted before the Court.
25. Having held so, we must, at the same time, emphasize the necessity of observing adequate safeguards where a writ petition is filed through the holder of a power of attorney. These safeguards should necessarily include the following:
(1) The power of attorney by which the donor authorises the donee, must be brought on the record and must be filed together with the petition/application;
(2) The affidavit which is executed by the holder of a power of attorney must contain a statement that the donor is alive and specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and (3) The donee must be confined to those acts which he is authorised by the power of attorney to discharge.
26. For these reasons, we hold and have come to the conclusion that the question referred for adjudication before the Full Bench must be answered in the affirmative and is accordingly answered, subject to due observance of the safeguards which we have indicated above.
The aforesaid judgement in Syed Wasif Husain Rizvi was rendered in respect of the question referred and, anyway, it would not inure to the benefit the petitioner. In the suit of 2000, admittedly, the defendant-respondent nos. 4 and 5 were arrayed as defendant nos. 15 and 14 respectively. Names of both these defendants are mentioned in the array of parties in the applications under Section 5 of the Limitation Act and under Order 9 Rule 13 read with Section 151 of the CPC. The applications would, therefore, not be rendered not maintainable. As observed by the court below, the applicant nos. 3 to 5 (arrayed as defendant-respondent nos.1, 2 and 3 in the present petition) have the option that in case the exparte decree is set aside, they can move an application for being impleaded as party in the original suit under the provisions of order 22 Rule 10 C.P.C.
36. In the case of Vidhyadhar (supra), the learned counsel has referred to paragraph nos.19 and 20 to contend that a power of attorney holder cannot depose for the principal in respect of a matter for which only the principal and personal knowledge. However, these paragraphs do not reflect any finding by the Supreme Court pertaining to a power of attorney holder. In the next case cited in support of the same proposition, of S. Kesari Hanuman Goud (supra), the Supreme Court held that the power of attorney holder cannot depose in place of the principal. The Supreme Court explained that if the power of attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. This case would not be of assistance to the petitioner given the facts of the instant case.
37. Thereafter, the learned counsel has relied upon a judgment of the Supreme Court in the case of Sneh Gupta (supra) to demonstrate that the ingredients of compromise/withdrawal/abandonment of suit are not made out in the present case, and, mere modification of injunction order does not result in compromise/withdrawal/abandonment of suit. In that case the challenge before the Supreme Court was of a judgment and order passed by the High Court setting aside an order passed by the Additional District Judge by means of which a compromise entered into between some of the parties were declared illegal as also null and void. The Supreme Court observed that a compromise decree is not binding on such defendants who are not party thereto. This case is based on its own facts and, moreover, the issue of abandonment, which has anyway not been considered in the judgement of the Supreme Court, would arise only when an issue is framed by the court below on the basis of pleadings.
Judgements relied upon by the respondents
38. Learned counsel for the defendant-respondents has relied upon the judgment of the Supreme Court in Bhagmal vs. Kunwar Lal (supra). In that case before the Supreme Court, the the appellant-defendants allegedly came to know about the decree when the execution proceeding started and moved an application under Order 9 Rule 13 read with Section 151 of the CPC for setting aside the ex-parte decree. The application was dismissed by the trial court being barred by time. In the Misc. Civil Appeal filed before the District Judge, the appellate Court held that the application deserved to be allowed and, accordingly, allowed the same while directing the trial court to decide the case on merits after hearing the parties. However, in the Civil Revision, the High Court held that the application under Order 9 Rule 13 CPC was barred by time and the appellate court had not recorded any finding on the question as to whether the filing of the application under Section 5 of the Limitation Act was necessary or not. The Supreme Court found that the appellate court's decision was well considered and held that the High Court was not justified in taking a hypertechnical view. The Supreme Court observed that the question of delay was completely interlinked with the merits of the matter. The appellant-defendants had pleaded that they did not earlier come to the Court on account of the fact that they did not know about the order passed by the Court proceeding ex-parte and also the ex-parte decree which was passed. The Supreme Court held that the averment was a justification for making the application under Order 9 Rule 13 CPC at the time when it was actually made and that was also a valid explanation of the delay. The Supreme Court held that the application under Order 9 Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is the handmaid of justice. The appellant-defendants believing the assurance given in the compromise panchnama that the respondent No. 1/plaintiff would get his suit withdrawn or dismissed. Under such circumstances, the non-attendance of the appellant-defendants was quite justifiable. The Supreme Court held that it was sufficient when the appellant-defendants ultimately came to know about the decree and moved the application within 30 days.
39. In the case of Ram Prakash Agarwal (supra), the Supreme Court was considering the right of a stranger to file an application under Order 9 Rule 13 CPC. The Supreme Court was of the opinion that in exceptional circumstances, the Court may exercise its inherent powers under Section 151 CPC, apart from Order 9 Rule 13 CPC, to set aside an ex-parte decree. The Supreme Court held as follows:
"15. In exceptional circumstances, the Court may exercise its inherent powers, apart from Order 9 CPC to set aside an ex-parte decree. An ex parte decree passed due to the non-appearance of the counsel of a party, owing to the fact that the party was not at fault, can be set aside in an appeal preferred against it. So is the case, where the absence of a defendant is caused on account of mistake of the court. An application under Section 151 CPC will be maintainable, in the event that an ex parte order has been obtained by fraud upon the court or by collusion. The provisions of Order 9 CPC may not be attracted, and in such a case the court may either restore the case, or set aside the ex parte order in the exercise of its inherent powers. There may be an order of dismissal of a suit for default of appearance of the plaintiff, who was in fact dead at the time that the order was passed. Thus, where a court employs a procedure to do something that it never intended to do, and there is miscarriage of justice, or an abuse of the process of court, the injustice so done must be remedied, in accordance with the principles of actus curiae neminem gravabit - an act of the court shall prejudice no person."
As observed in the present case, the application under Order 9 Rule 13 read with Section 151 CPC has also been filed by parties who are defendants in the suit of 2000.
40. In the case of N. Balakrishnan (supra), the Supreme Court held as follows:-
"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 want of acceptable explanation whereas in certain other cases, delay of 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 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 untrammelled by the conclusion of the lower court.
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
.....................
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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. While condoning delay, the Could should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
41. In the case of M.K. Prasad (supra), the Supreme Court held as follows:-
"10..................Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. ........................."
42. In the case of Shanti Prasad Gupta (supra), the Supreme Court has held that whether or not there is sufficient cause for condonation of delay, is a question of fact dependent upon the facts and circumstances of a particular case, and the proposition is well-settled that when order has been made under Section 5 of the Limitation Act by the lower court in the exercise of its discretion allowing or refusing an application to extend time, it cannot be interfered with in revision, unless the lower court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence.
43. In the case of Bhagmal vs. M.P. Cooperative Marketing (supra), the proposition of law enunciated by the Supreme Court in the case of Shanti Prasad Gupta (supra) has been restated with respect to exercise of extraordinary jurisdiction under Article 226 or 227 of the Constitution of India.
44. In the case of Mohammad Shafeeq (supra), the Supreme Court held as follows:-
"3. In our opinion, the High Court has taken too technical a view of the error committed by the appellant in pursing the remedy available to him under the law. The appellant had been prosecuting his remedy diligently and there is nothing to doubt his bona fides. These aspects were taken into consideration by the learned Additional District Judge while condoning the delay in filing the revision. In our opinion, the High Court ought not to have interfered with the order of the Additional District Judge, condoning the delay in filing the revision, being an order passed in exercise of discretion vested in the learned Additional District Judge and for that reason, was not open to interference by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution."
45. Having considered the facts and circumstance of the present case, it would be pertinent, at this stage to refer to the judgment of the Supreme Court in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & others9 which has referred to certain principles applicable to an application for condonation of delay which, inter alia, are that:
(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
46. It needs notice that just because the defendant-respondent nos. 4 and 5 (defendant nos. 15 and 14 respectively in the suit of 2000) had engaged an advocate subsequent to the modification of the order of temporary injunction, it is not an unrebuttable proof of lack of bonafide on their behalf. It is stated in the counter affidavit that the defendant No. 14 also got the order passed by the court below on his application (paper No. 205C) confirmed through an advocate, Mrs. Abha Agarwal, who filed her vakalatnama in the suit of 2000 and after perusing the order dated 19.9.2001 she also advised the defendant No. 14 that now there is no claim against him and he is not required to take part in further proceedings in suit as such, the defendant No. 14 did not take part in further proceedings in suit of 2000. At this stage, this court is averse to recording any categorical observation regarding the consequence of the joint application Paper no.205C. However, the conduct of the defendant-respondents, in not contesting the suit of 2000, post the order on the application Paper no.205C, appears to be bonafide. Moreover, though the delay in filing the application under Order 9 Rule 13 CPC, after coming to know of the decree which led to the filing of the suit of 2016, has not been specifically explained, it needs mention that heavy cost of Rs.30,000/- has been imposed on the defendant-respondents while allowing the application 4C by means of the impugned order. The impugned order of the court below cannot be faulted.
47. This petition is accordingly, dismissed. It is made clear that the observations made in this judgement are only for purpose of decision of this petition under Article 227 of the Constitution of India and shall not be taken by the court below as opinion on the merits of the case.
Date : 09.06.2020 SK/sfa (Jayant Banerji, J)