Chattisgarh High Court
Laxmi Prasad vs Gulam Ali on 21 November, 2007
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
CR No 768 of 1999
Laxmi Prasad
...Petitioner
VERSUS
1 Gulam Ali
2 Upkar Ali
3 Mehmooda Begum
4 Kurban Ali
5 Usman Ali
6 Hamid Ali
7 Qasim Ali
8 Rashida Begum
9 Jamila Begum
10 Munni Begum
11 Kasida Begum
12 S M Mendheker Advocate
...Respondents
! 1 Applicant by Shri Avinash K Mishra learned counsel
The applicant is also present in person
^ 1 Non Applicants No 1 and 4 to 9 and 11 by
Shri Shree Kumar Agrawal learned Senior Advocate
2 Shri Gautam Khetrapal learned counsel
3 None appears for other non applicants
Honble Shri Dilip Raosaheb Deshmukh J
Dated: 21/11/2007
: Order
Civil Revision under Section 115 of the Code of
Civil Procedure
ORDER
(Passed on 21st of November, 2007) This revision is preferred by one of the defendants against the order by which the defendants' appeal under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as `the Code') has been dismissed by order dated 22-01-1999 passed by Smt. Nirmala Singh, Vth Additional District Judge, Bilaspur (hereinafter referred to as `the lower appellate Court') in Miscellaneous Civil Appeal No.47/98. In this appeal, the defendants had challenged the order dated 17-10-1997 passed by Shri G.S.Netam, IIIrd Civil Judge Class-II, Bilaspur (hereinafter referred to as `the trial Court') in Miscellaneous Civil Case No.17/97 by which their application under Order 9 Rule 13 of the Code for setting aside the ex parte judgment and decree dated 23- 07-1990 passed in Civil Suit No.117-A/88 by the trial Court was rejected.
(2) This case demonstrates how a pedantic and hyper- technical view taken by the Court while considering an application under Section 5 of the Limitation Act, 1963 (hereinafter referred to as `the Act') for condoning the delay in filing an application under Order 9 Rule 13 of the Code for setting aside the ex parte judgment and decree by the trial Court has resulted in complete failure of justice. It is, therefore, necessary to unfold a brief history of the litigation, which the defendants are contesting since 1967. The defendants Laxmi Prasad (revisioner), Badri Prasad and Rampyari are the two sons and the widow of Shiv Shankar Prasad respectively. In 1963, Laxmi Prasad and Badri Prasad had purchased the suit property, i.e., 7.56 acres of land situated in Village Chandipara, Tahsil Janjgir, District Bilaspur (now District Janjgir) from one Abdul Newaz through a registered sale-deed and obtained possession. The names of Laxmi Prasad and Badri Prasad were mutated over the suit lands in the revenue records. In November, 1966, Abdul Newaz died. His grand daughter Ramjan Bi fraudulently got her name mutated over the suit lands. Proceedings under Section 145 of the Code of Criminal Procedure were initiated in which the S.D.O. declared Ramjan Bi in possession. Since the criminal revision preferred against the order passed by the S.D.O. also failed, Laxmi Prasad and his brother Badri Prasad filed Civil Suit No.4-A/70 against Ramjan Bi before the Ist Civil Judge Class-II, Janjgir for obtaining possession of the suit lands, which was decreed in their favour and against Ramjan Bi on 05-05- 1971. First Appeal No.24-A/72 before the IIIrd Additional District Judge, Bilaspur preferred by Ramjan Bi was also dismissed on 23-10-1972. Ramjan Bi preferred Second Appeal No.985/72 in the High Court of Madhya Pradesh, which was also dismissed on 23-07-1979. Even after such prolonged litigation, Laxmi Prasad and Badri Prasad had no respite because one Raj Bi had filed Civil Suit No.4-A/72 before the Ist Civil Judge Class-I, Bilaspur claiming permanent injunction against defendants Laxmi Prasad, Badri Prasad and Shiv Shankar Prasad and also impleading Ramjan Bi as defendant. This civil suit was registered as Civil Suit No.110- A/88 before the Civil Judge Class-II, Bilaspur. The defendant Ramjan Bi died during the pendency of Civil Suit No.4-A/72 and the proceedings continued for bringing her legal representatives on record. On 16-03- 1990, the civil suit was fixed for reply on the application under Order 22 Rule 4 of the Code. Instead of filing reply, Shri S.M.Mendheker, counsel for the defendants pleaded no instructions. Neither the counsel informed the defendants about such a step nor any notice was given by the Court to the defendants that their counsel had pleaded no instructions. Shockingly, the Court proceeded ex parte against the defendants on 16-03-1990 and passed an ex parte judgment and decree on 23-07-1990.
(3) On the date of the ex parte judgment and decree, the revisioner/defendant Laxmi Prasad was away from Bilaspur in Government Service as Tahsildar while brother Badri Prasad used to look after the agriculture. The litigation was looked after only by father Shiv Shankar Prasad, who was seriously ill due to old age and cataract in both eyes about two years prior to the ex parte proceeding and was not attending the hearing of the case. However, he did inform his counsel Shri S.M.Mendheker that whenever the counsel will call him, he would somehow manage to come to the Court.
(4) The revisioner took retirement from service and started practising as an Advocate from September, 1990 at Bilaspur and enquired several times from Shri S.M.Mendheker about the case, who, at a very late stage, told him that since he had pleaded no instructions on 16-03-1990 and did not appear thereafter in the Court he did not know as to what had happened to the case. It was also pointed out by the revisioner before me that in the cause-title of Civil Suit No.117-A/88, the name of defendant Shiv Shankar Prasad and the father's name of defendants Laxmi Prasad and Badri Prasad was mentioned as Sukhdev Prasad. This is borne out from the cause-title of Civil Suit No.4- A/72. This was corrected sometimes in March, 1991 after the ex parte decree was passed against the defendants on 23-07-1990. The defendants made an application on 26-11-1990 under Order 9 Rule 13 of the Code, which was dismissed by the VIIth Civil Judge Class-II, Bilaspur by order dated 14-11-1992 passed in Miscellaneous Civil Suit No.16/92 as barred by time. This order was challenged before the VIIth Additional Judge to the Court of District Judge, Bilaspur in Miscellaneous Civil Appeal No.36/92. The appellate Court set aside the order of the trial Court and allowed the appeal. Gulam Ali, non-applicant No.1 herein preferred Civil Revision No.1041/96 before the High Court of Madhya Pradesh. This revision was allowed on the ground that the lower appellate Court had acted illegally with material irregularity in computing the period of limitation from the date of knowledge of the decree. The matter was remanded with a direction to the trial Court to decide the matter afresh taking the factor in relation to the sufficiency of cause for condonation of delay into action for deciding the application under Order 9 Rule 13 of the Code.
(5) The application under Order 9 Rule 13 of the Code was next considered by the trial Court. Parties did not lead any additional evidence since evidence had already been adduced. The trial Court, while adopting the tendency of finding fault with the cause shown and rejecting the petition by a slipshod order, took a pedantic and hyper-technical view that since the defendant Laxmi Prasad had knowledge of the ex parte decree in September, 1990, there was no sufficient cause for condonation of delay in filing the application under Order 9 Rule 13 of the Code on 26-11-1990 although it recorded a finding in paragraph 22 of the order that the applicant had sufficient and bona fide cause for non-appearance on 16-03-1990. In Miscellaneous Civil Appeal No.47/98, the lower appellate Court also agreed with the reasoning of the trial Court and dismissed the appeal on the ground that before September, 1990, no efforts were made by Laxmi Prasad to find out the status of the civil suit. Aggrieved by this order passed in Miscellaneous Civil Appeal No.47/98, the revisioner Laxmi Prasad has preferred this civil revision.
(6) The revisioner Laxmi Prasad, now a practising lawyer, who argued the case, was thoroughly ready both on facts as well as law, found out all relevant decisions on the issue and placing the same with all fairness submitted, that the trial Court acted illegally in proceeding ex parte against the defendants on 16-03-1990 when the counsel Shri S.M.Mendheker pleaded no instructions because before pleading no instructions the counsel did not inform the defendants and notice was also not sent by the trial Court to the defendants that their counsel had reported no instructions. Reliance was placed on Tahil Ram Issardas Sadarangani and others vs. Ramchand Issardas Sadarangani and another, AIR 1993 SC 1182 and Malkiat Singh vs. Joginder Singh, 1998 (1) MPWN SN 61 (SC). It was urged that the ex parte decree passed by the trial court was thus perverse. Reliance was also placed on N. Balakrishnan vs. M. Krishnamurthy, (1998) 7 SCC 123, M.K. Prasad vs. P. Arumugam, AIR 2001 SC 2497, Ram Nath Sao alias Ram Nath Sahu and others vs. Gobardhan Sao and others, AIR 2002 SC 1201 and Smt. Devki Bai vs. Balram Singh Gond and others, 2007(2) CGLJ 110, while contending that the refusal to exercise discretion under Section 5 of the Act by both the Courts below was on wholly untenable grounds, arbitrary and perverse and, therefore, in exercise of the revisional jurisdiction, this Court should show interference. It was also submitted that perversity was writ large since both the Courts below had failed to notice that Sheikh Gulam Ali, witness for the non-applicants - decree holder admitted that Shiv Shankar Prasad, aged about 85 years, was not attending the Court due to ill health and old age since a year prior to 1990 and Shri S.M.Mendheker, Advocate was appearing for the defendants in the case. It was also admitted that Laxmi Prasad was posted away from Bilaspur as Tahsildar and never attended the Court hearing. It was also admitted that Laxmi Prasad had retired in June, 1990 and had, after many months thereafter started practising as an Advocate at Bilaspur. The Courts below also ignored the evidence of Dr. B.L.Mishra that Shiv Shankar Prasad, aged about 80 years, was suffering from cataract of both eyes and was unable to walk without support. The clinching evidence led by the defendants also revealed that Badri Prasad was looking after the agriculture in the village and never visited the Court. On these premises, it was urged that the view taken by both the Courts below was pedantic and hyper-technical and had resulted in failure of justice. It was also argued that both the Courts below failed to notice the stakes involved in the litigation and the serious questions of law raised by the defendants in their written statement. Both the Courts below also over looked the spate of litigation in the suit filed by Ramjan Bi which the defendants had fought from 1970 and won upto the stage of second appeal in 1979 and the vexatious nature of the suit filed by Raj Bi. It was urged that in the absence of anything to show that the delay was mala fide, intentional or any dilatory tactics was adopted, the same should have been condoned and the ex parte judgment and decree should have been set aside as the expression "sufficient cause"
appearing in Section 5 of the Act as also in Order 9 Rule 13 of the Code ought to have received a liberal construction so as to advance substantial justice.
(7) On the other hand, Shri Shree Kumar Agrawal, learned Senior Advocate appearing for non-Applicants No.1 and 4 to 9 and 11 submitted with vehemence that a concurrent finding of fact recorded by both the Courts below that there were no sufficient cause for condonation of delay under Section 5 of the Act is the result of positive exercise of discretion and ought not to be disturbed by this Court much less in revisional jurisdiction unless perversity was writ large.
Reliance was placed on Masjid Kacha Tank, Nahan vs. Tuffail Mohammed, AIR 1991 SC 455 and an order passed by this Court in Civil Revision No.272/2002 (Sunil Kumar Pathak vs. State of Chhattisgarh and others) on 25-07-2007. It was further argued that rejection of an application under Section 5 of the Act is not a decree, but an incidental order against which no appeal under Order 43 Rule 1(d) of the Code could be preferred. Reliance was placed on a Full Bench decision in Mamuda Khateen and others vs. Beniyan Bibi and others, AIR 1976 Calcutta 415 (FB). It was, thus, contended that the appeal preferred by the defendants before the lower appellate Court was not maintainable. Learned Senior Advocate next argued that the High Court of Madhya Pradesh had in its order dated 22-04-1997 passed in Civil Revision No.1041/1996 held that both the Courts below had acted illegally with material irregularity in computing the period of limitation from the date of knowledge of the decree. Since it was not disputed that notice of suit was duly served, the limitation of 30 days for filing an application under Order 9 Rule 13 of the Code commenced from the date of the decree under Article 123 of the Act, therefore, aid of Section 5 of the Act could not be taken to circumvent the period of limitation provided in Article 123 of the Act because the question of limitation commencing from the date of knowledge of the decree would arise under Article 123 of the Act only where the summons or notice was not duly served on the defendants. On these premises, it was urged that no interference with the impugned order is called for in exercise of the revisional jurisdiction by this Court.
(8) Having considered the rival submissions with utmost circumspection, I have perused the record. Order 9 Rule 13 of the Code reads as under:
"Order IX Rule 13. Setting aside decree ex parte against defendants.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree."
(9) In G.P.Srivastava vs. R.K.Raizada and others, (2000) 3 SCC 54, the Apex Court, while considering the scope of Order 9 Rule 13 of the Code and the manner in which the discretion should be exercised by the Court while deciding whether the defendants were prevented by any sufficient cause from appearing when the suit was called for hearing, observed as under:
"7. Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non- appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction in imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier."
(10) Article 123 of the Act reads as under:
"Description Period Time from which of suit of period begins to limitat run ion Article 123.- Thirty The date of the To set aside Days. decree or where the a decree summons or notice passed ex was not duly parte or to served, when the re-hear an applicant had appeal knowledge of the decreed or decree."
heard ex
parte.
Explanation.-
For the
purpose of
this Article,
substituted
service under
Rule 20 of
Order V of
the Code of
Civil
Procedure,
1908 (5 of
1908), shall
not be deemed
to be due
service.
(11) Section 5 of the Act reads as under:
"5. Extension of prescribed period in certain cases.- 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.
Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."
(12) The expression "sufficient cause" finds place not only in Order 9 Rule 13 of the Code but also in Section 5 of the Act and has been the subject matter of consideration by the Apex Court on numerous occasions. In the case of The State of West Bengal vs. The Administrator, Howrah Municipality and others, (1972) 1 SCC 366, the Apex Court laid down that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In Sital Prasad Saxena (dead) by LRs. vs. Union of India and others, AIR 1985 SC 1, the Apex Court observed that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties. (13) In N. Balakrishnan vs. M. Krishnamurthy (supra), there was a delay of 883 days in filing application for setting aside ex parte decree for which application for condonation of delay was filed. The trial Court having found that sufficient cause was made out for condonation of delay, condoned the delay, but when the matter was taken to the High Court in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial Court was not justified in condoning the delay resulting into reversal of its order. The Apex Court, while setting aside the order passed by the High Court succinctly laid down the law in paragraphs 9 to 13 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 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."
"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. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
"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 vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575: (1969)1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality, (1972) 1 SCC 366: AIR 1972 SC 749."
"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 the delay, the Court 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."
(14) Applying the touchtone of N. Balakrishnan vs. M. Krishnamurthy (supra) to the present case perversity is writ large in the order passed by both the Courts below for more than one reason.
(15) At the very outset, it is noticed that on 16-03- 1990 the civil suit was fixed for filing of reply on the application under Order 22 Rule 4 of the Code. On this date, the counsel Shri S.M.Mendheker pleaded no instructions. The testimony of Laxmi Prasad that the counsel did not inform him that he would or had pleaded no instructions is wholly unrebutted in cross- examination. It is also not disputed that the trial Court did not order for issuance of notice to the defendants on 16-03-1990 when their counsel pleaded no instructions. Both the Courts below failed to notice that the ex parte judgment and decree was liable to be set aside on this ground alone. In Tahil Ram Issardas Sadarangani and others vs. Ramchand Issardas Sadarangani and another (supra), it was held by the Apex Court that where the defendants were not present in person on the date of hearing and the counsel appearing for them had pleaded no instructions, interest of justice required that a fresh notice with actual date of appearance should have been sent to the parties because the party was not at fault and should not be made to suffer for the lapse on the part of counsel. On this premises, the Apex Court allowed the appeal and set aside the order of a Division Bench of the High Court of Bombay, whereby the dismissal of the application for setting aside the ex parte decree by the trial Court was upheld. In Malkiat Singh vs. Joginder Singh (supra), placing reliance on Tahil Ram Issardas Sadarangani and others vs. Ramchand Issardas Sadarangani and another (supra), the Apex Court, in a similar situation, set aside the order of the trial Court and the ex parte decree as also the order of the District Judge in appeal and that of the High Court in civil revision. It was held that the appellants were neither careless nor negligent in defending the suit. They had engaged a counsel and were following the proceedings. In this fact situation, the trial Court, which had admittedly not issued any notice to the appellants after their counsel had reported no instructions, should have, in the interest of justice, after condoning the delay allowed the application for setting aside the ex parte judgment and decree and proceeded in the case from the stage when the counsel reported no instructions. The appellants' counsel, in the facts and circumstances of the case, was at fault and not the appellants, who could not be made to suffer.
(16) Both the Courts below also failed to take a note of the nature of the litigation which the defendants were contesting. The defendants despite purchasing the property from Abdul Newaz though a registered sale-deed and the mutation of their names in the revenue records had to face rough weather from 1966 when proceedings under Section 145 of the Code of Criminal Procedure were started and thereafter due to dismissal of the criminal revision the defendants were constrained to file Civil Suit No.4-A/70 before the Ist Civil Judge Class-II, Janjgir. Despite success in the trial Court, the lis continued because Ramjan Bi preferred First Appeal No.24-A/72 before the District Judge and Second Appeal No.985/72 before the High Court in which she failed. Both the Courts below also failed to notice that Ramjan Bi was also impleaded as a party by Raj Bi in Civil Suit No.4-A/72 and important and intricate questions of law were raised by the defendants in the suit. In M.K. Prasad vs. P. Arumugam (supra), the Apex Court observed as under:
"9. ....... 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. .........."
(17) In N. Balakrishnan vs. M. Krishnamurthy (supra), the Apex Court observed as under:
"8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences."
(18) Thus, both the Courts below erred in not noticing that the defendants had high stakes in the matter and were litigating upto the High Court in the suit previously instituted by them and serious questions of law were raised by them in the suit instituted by Raj Bi. Thus, the defendants would not have gained by deliberately abstaining from the litigation when they had engaged Shri S.M.Mendheker, a senior counsel of repute in civil law. Both the Courts below completely failed to take into consideration that Gulam Ali, witness for the plaintiff had made the following admissions in his testimony before the trial Court:
(A) that Laxmi Prasad, the revisioner was posted outside Bilaspur as Tahsildar and never attended the hearing in Court, (B) that Laxmi Prasad had retired in June, 1990 and had started practising as an Advocate at Bilaspur many months thereafter, (C) that Shri S.M.Mendheker, Advocate was representing the defendants in the trial Court, (D) that Shiv Shankar Prasad was aged about 85 years and was not attending the hearing before the trial Court since about a year prior to 1990, (E) that name of Shiv Shankar Prasad was wrongly mentioned as Sukhdev Prasad and father's name of Laxmi Prasad and Badri Prasad was also wrongly mentioned as Sukhdev Prasad in the cause-title of the plaint, (F) the testimony of Dr. B.L.Mishra, A.W.-1 was wholly unrebutted that Shiv Shankar Prasad was about 80 years and was suffering from cataract of both eyes and was unable to walk without support, and (G) that the testimony of the revisioner Laxmi Prasad that on contacting Shri S.M.Mendheker, Advocate several times, he could not inform the progress of the case after 16-03-1990 and had only told him that he had pleaded no instructions on 16-03-1990 was wholly unrebutted.
(19) The abovementioned circumstances clearly go to show that delay if any in making the application for setting aside the ex parte decree was not deliberate, mala fide or to gain time. On the other hand, sufficient cause was shown for the delay in making the application for setting aside the ex parte decree.
There is, thus, no room for any doubt that the approach of the two Courts below was not only contrary to law, but was definitely perverse. In N. Balakrishnan vs. M. Krishnamurthy (supra), the Apex Court has observed that in such a situation, interference by this Court in exercise of the revisional jurisdiction could be shown. In this view of the matter, the argument of the learned Senior Advocate for non-applicants No.1 and 4 to 9 and 11, that interference in the revision is uncalled for in view of the concurrent finding of fact recorded by both the Courts below, fails.
(20) In Ram Nath Sao alias Ram Nath Sahu and others vs. Gobardhan Sao and others (supra), the Apex Court has held as under:
"The expression `sufficient cause' within the meaning of S. 5 of the Act or O. 22 R. 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 fide is imputable to party. In a particular case whether explanation furnished would constitute `sufficient cause' or not will be dependant upon facts of each case. There can not be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the Court 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 fide 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 hyper- technical 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."
(21) The argument advanced by Shri Shree Kumar Agrawal, learned Senior Advocate appearing for non-applicants No.1 and 4 to 9 and 11, that under Article 123 of the Act where the summons are duly served limitation commences from the date of the decree and not from the date of knowledge of the decree and, therefore, Section 5 of the Act could not be brought into service for condonation of delay on the ground that the applicant had knowledge of the decree after the expiry of the period of limitation of 30 days under Article 123 of the Act, cannot be countenanced and is liable to be rejected. Under Section 5 of the Act, any application may be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not making the application within such period. Therefore, an application under Section 5 of the Act for condonation of delay in making an application for setting aside an ex parte decree cannot be rejected on the ground that such delay could not be condoned because the summons was served on the defendants and that the applicant had knowledge of the ex parte decree after the expiry of the prescribed period of limitation.
(22) It was also argued by Shri Shree Kumar Agrawal, learned Senior Advocate for non-applicants No.1 and 4 to 9 and 11 that the appeal before the lower appellate Court under Order 43 Rule 1(d) of the Code was not maintainable because an order of dismissal of an application under Order 9 Rule 13 of the Code following the rejection of an application under Section 5 of the Act for condonation of delay in filing the appeal is not a decree, but an incidental order, against which a revision under Section 115 of the Code lies, but no appeal under Order 43 Rule 1(d) of the Code can be preferred. Reliance was placed on a Full Bench decision of the Calcutta High Court in Mamuda Khateen and others vs. Beniyan Bibi and others (supra). The order of rejection of an application under Section 5 of the Act merges with the order of dismissal of the application as barred by limitation under Order 9 Rule 13 of the Code and, therefore, in my considered opinion, an appeal against an order of dismissal of an application for setting aside an ex parte decree is maintainable under Order 43 Rule 1(d) of the Code. The view taken by the Full Bench of High Court of Calcutta in Mamuda Khateen and others vs. Beniyan Bibi and others (supra) is clearly distinguishable because the Full Bench of the Calcutta High Court was considering an order rejecting the memorandum of appeal following the rejection of an application under Section 5 of the Act for condonation of delay in filing the appeal and, therefore, it was held that since such an order was not a decree, no appeal lies. However, in the present case, the scenario is different. It cannot be disputed that the judgment and decree, which was sought to be set aside on an application under Order 9 Rule 13 of the Code, was a decree and, therefore, the rejection of the application under Order 9 Rule 13 of the Code following the rejection of an application under Section 5 of the Act would be squarely covered under Order 43 Rule 1(d) of the Code. The situation would be different as in the case law cited if the lower appellate Court had dismissed the miscellaneous civil appeal as barred by limitation after rejecting the application for condonation of delay, then a fresh appeal would not lie and such an order would only be subject to a revision under Section 115 of the Code. Thus, this argument advanced by Shri Shree Kumar Agrawal, learned Senior Advocate for non-applicants No.1 and 4 to 9 and 11 also fails. Once the trial Court held that there was sufficient cause for non- appearance of the defendants on 16-03-1990, which aspect was not dealt with by the lower appellate Court at all, the trial Court ought to have allowed the application under Section 5 of the Act as the defendants had shown sufficient cause for the delay in filing the application under Order 9 Rule 13 of the Code. Once such delay was condoned, the finding recorded by the learned trial Judge that there was sufficient cause for non-appearance of the defendants on 16-03-1990 when their counsel pleaded no instructions, would have resulted in allowing the application under Order 9 Rule 13 of the Code. It is, thus, clear that sufficient cause within the meaning of Section 5 of the Act was shown by the revisioner for condonation of delay in filing the application under Order 9 Rule 13 of the Code for setting aside the ex parte decree and, therefore, the rejection of the application in a pedantic and hyper-technical manner by both the Courts below due to their tendency of finding fault with the cause shown and rejecting the application by slipshod order has resulted in failure of justice. Thus, the impugned order as also the order passed by the trial Court are perverse and deserve to be set aside in exercise of the revisional jurisdiction of this Court under Section 115 of the Code. (23) In the result, the civil revision is allowed. The impugned order dated 22-01-1999 passed in Miscellaneous Civil Appeal No.47/98 as also the order dated 17-10- 1997 passed in Miscellaneous Civil Case No.17/97 by the IIIrd Civil Judge Class-II, Bilaspur are set aside. The application filed by the defendants for setting aside the ex parte decree dated 23-07- 1990 passed in Civil Suit No.117-A/88 is allowed. Civil Suit No.117-A/88 is restored to file. Parties shall appear before the trial Court on 3rd January, 2008. The trial Court shall proceed with the suit in accordance with law from the stage as it existed in the suit on 16-03-1990.
JUDGE