Allowed

Viptaram v. Gambhira Ram Died through Lrs Jiyalal And Ors.

Chhattisgarh HC5 Jul 2023WP227/453/2015

Case brief

AI extract

What is this about?

The petitioner filed a writ petition challenging the dismissal of his appeal and rejection of his applications to set aside an ex-parte decree and condone filing delay. The High Court allowed the petition, setting aside the orders of the trial and appellate courts, and restored the civil suit.

What did the court decide?

The impugned orders of the appellate Court and the trial Court were set aside. The civil suit was restored to its original number, and parties were directed to appear on 16-08-2023.

Viptaram Vs Gambhira Ram Died through Lrs Jiyalal… — Property and Title | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR WP227 No. 453 of 2015

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Viptaram S/o Dhansay, Aged About 60 Years, R/o VillageSingari, Tah. Pratappur, P.S. Ramkola, Revenue and Civil Distt. Surajpur Chhattisgarh, Chhattisgarh

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---- Petitioner

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Versus

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Gambhira Ram S/o Dhansay, Aged about 55 yers, (Died) Legal representatives :-

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1A. Jiyalal S/o Late Gambhira, Aged About 45 Years, R/o VillageSingari, Tahsil Pratappur, P.S. Ramkola, Revenue and Civil Distt. Surajpur Chhattisgarh, Chhattisgarh

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Amir Say, S/o Dhansay, Aged About 52 Years, R/o VillageSingari, Tah. Pratappur, P.S. Ramkola, Revenue and Civil Distt. Surajpur Chhattisgarh, District : Surajpur, Chhattisgarh

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State Of Chhattisgarh, Through- Collector, Surajpur, Distt. Surajpur Chhattisgarh, District : Surajpur, Chhattisgarh

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---- Respondents

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(Cause-title taken from Case Information System)

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For Petitioner – Mr. Sunil Tripathi, Advocate.

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For Respondent No.1 and 2 – Mr. Shubhank Tiwari, Advocate on behalf of Mr. Manoj Paranjpe, Advocate.

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For State/Respondent No.3 – Mr. Himanshu Kumar Sharma, Panel Lawyer.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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05-07-2023

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The petitioner has challenged the order passed by the Additional District Judge Pratappur, District Surajpur dated 27.04.2015 passed in Misc. Civil Appeal No. 16A/2014 whereby the appeal preferred by the petitioner/defendant under Order 43 Rule 1(d) (wrongly mentioned as Section 96) of the CPC has been dismissed and the order passed by the Civil Judge, Class – I, Pratappur, District Surajpur in Misc. Civil Suit No.11/2011 dated

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27.11.2014 has been affirmed whereby the applications preferred by the petitioner under Order 9 Rule 13 of the CPC and Section 5 of Limitation Act were rejected.

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The facts of the present case are that Gambhira Ram, Amir Sai and Teejobai, original plaintiffs had filed a civil suit for declaration of title and permanent injunction against the defendants on 10.02.1994. After formation of civil court at Pratappur the suit was transferred from the Court of Civil Judge Class – II, Surajpur to the Court of Civil Judge Pratappur, District Surajpur. The original plaintiffs were Gambhira Ram, Amir Sai and Teejobai in Civil Suit No.55A/2003 and after death of Gambhira Ram, Jiya Lal has been substituted as his legal heir. The petitioner was defendant No.1. Defendant No.2 the State of M.P. was proceeded ex-parte. The defendant No.1 was proceeded ex-parte on 19.11.2005 and the learned trial Court decreed the suit vide judgment and decree dated 28.02.2006. The petitioner moved application under Order 9 Rule 13 of the CPC along with application under Section 5 of Limitation Act on the ground that on account of illness and assurance of his counsel he did not appear before the trial Court and on the date of hearing, i.e.,19.11.2005 his counsel also did not appear, therefore, he was proceeded ex-parte. The plaintiffs filed their reply to the application moved by the petitioner. Thereafter, the learned trial Court rejected the application moved by the petitioner on 27.11.2014 wherein it was stated that medical certificate has not

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been produced by the petitioner and on 18.06.2007 no demarcation was done by the revenue authorities. The learned trial Court held that no document has been produced with regard to demarcation proceeding and the delay has not been explained properly. It is also observed that though there is averment regarding ailment, but no document has been produced in this regard and in crossexamination the petitioner could not name of the disease and the date of ailment. Thus, the learned trial Court rejected the application filed under Order 9 Rule 13 of the CPC as well the application under Section 5 of Limitation Act. The petitioner preferred appeal before the learned Additional District Judge Pratappur, District Surajpur against the order dated 27.11.2014 and same has also been dismissed affirming the finding recorded by the learned trial Court.

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Learned counsel for the petitioner would submit that the petitioner preferred application for setting aside ex-parte judgment and decree along with application for condonation of delay on 25.06.2007 and assigned two reasons, firstly, that he came to know about passing of the judgment and decree when the demarcation was being conducted over the suit land, and secondly, the petitioner could not appear on the date of hearing on account of assurance given by his counsel and the learned trial Court ought to have issued notice to the petitioner. He also submits that medical certificate was placed before the lower appellate Court, but same

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has not been taken into consideration. He has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Tahil Ram Issardas Sadarangani Vs. Ramchand Issardas Sadarangani , reported in 1993 Supp (3) SCC 256, N. Balakrishnan Vs. M. Krishnamurthy , (1998) 7 SCC 123, Robin Thapa Vs. Rohit Dora , (2019) 7 SCC 359 and judgments of this Court in the case of Laxmi Prasad Dubey Vs. Gulam Ali and Ors. , reported in 2008(1) CGLJ 393 and Ramji Kalar Vs. Fakir Mohan (D) Through LRs. and others , reported in 2023(2) C.G.L.J. 559 and would submit that Court should take liberal approach while considering on the application for condonation of delay and for fault of Advocate litigant should not be penalized.

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On the other hand, learned counsel for the respondents/plaintiffs would submit that the petitioner was proceeded ex-parte on 19.11.2005 and thereafter, he moved an application under Order 9 Rule 13 of the CPC on 25.06.2007 after one and half years and he has not explained the delay properly in the application filed under Section 5 of Limitation Act. He would further submit that in the application filed under Section 5 of Limitation Act in para 3 the petitioner has stated that he was physically not fit, therefore, he could not appear on that date and he was not informed by his counsel. In para 5 the petitioner has stated that on 18.06.2007 when demarcation proceeding was going on over suit land he came to know about the ex-parte judgment and

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decree. In the application filed under Order 9 Rule 13 of the CPC the petitioner has stated that on account of assurance given by his counsel he did not appear, whereas, the ex-parte judgment and decree was passed on 28.02.2006. He would also submit that the petitioner was negligent in prosecuting the case and he has not stated sufficient reason for condonation of delay and in the civil suit prior to 19.11.2005, he was appearing and written statement was also filed by him, but after ex-parte proceeding dated 19.11.2005 till filing of application under Order 9 Rule 13 of the CPC he never enquired about his case. Therefore, the courts below rightly rejected his application and appeal. He has placed reliance upon the judgment passed in First Appeal No.148/2019 dated 28.09.2022.

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I have heard learned counsel for the parties and perused the documents.

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Order 9 Rule 13 of the CPC reads as under:-

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“13. Setting aside decree ex parte against

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defendant. - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order

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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;

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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:

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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.”

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Bare reading of provisions of Order 9 Rule 13 of the CPC would show that ex-parte decree passed against the defendant can be set aside upon satisfaction of the court that either summons was not duly served, or that 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 in the case on the date of hearing, the court has no power to set aside ex-parte decree.

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7 . In the present case, the civil suit was filed by the original

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plaintiffs on 01.03.1993 before the Civil Judge Class – I, Surajpur and after creation of Civil Court Pratappur, the case was transferred at Pratappur. The petitioner/defendant No.1 was appearing through his counsel for attending the proceeding of civil suit. Written Statement was also filed by the petitioner. On 19.11.2005 neither the petitioner nor his counsel appeared before the learned trial Court and the petitioner was proceeded ex-parte. The learned trial Court passed the judgment and decree on 28.02.2006. Thereafter, the petitioner filed application under Order 9 Rule 13 of the CPC on 25.06.2007 on the ground that on 19.11.2005 he was suffering form certain ailments, therefore, he could not appear and he was not informed by his counsel. He has further stated that on 18.06.2007 when the suit land was being demarcated he came to know about passing of the judgment and decree, thereafter he filed application for setting aside ex-parte decree along with application for condonation of delay under Section 5 of Limitation Act. The petitioner was examined before the learned trial Court where he could not produce any document with regard to his ailment and demarcation of the property. Therefore, the learned trial Court in absence of any documentary evidence discarded the oral evidence and rejected both the applications on merits. The learned lower appellate Court affirmed the finding recorded by the learned trial Court.

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8 . In the case of N. Balakrishnan (supra), the Hon’ble Supreme

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Court while dealing with Section 5 of Limitation Act has held that in absence of anything showing mala fide or deliberate delay as a dilatory tactic, court should normally condone the delay and where a court condones delay in positive exercise of discretion, superior court and more particularly the revisional court should not normally disturb the same. Relevant para of aforesaid judgment are 10 and 13 which are as under:-

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The reason for such different stance is thus:

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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 occsioned 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

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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.”

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9 . In the matter of Robin Thapa (supra) while dealing with similar issue the Hon'ble Supreme Court has held in para 7 and 12 of the judgment as under:-

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“ 7. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.

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12. The matter arises from a suit for specific performance. It may be true that there is a case for the respondent that the appellant has actually let out the building on rent. The appellant's case is that this is the appellant's residential house and the matter is a loan transaction. Specific relief is undoubtedly a discretionary relief. The appellant has submitted that the appellant is prepared to deposit the entire amount spent by the respondent towards getting sale deed executed. We would think that the interest of justice demands that subject to putting the appellant on terms, an opportunity

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should be given to the appellant to contest the case and the case must be directed to be disposed of within the time-limit.”

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In the case of Ramji Kalar (supra) this Court in para 4 and 5 held as under:-

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“4. In Tahil Ram Issardas Sadaragani (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.

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Taking into consideration the aforesaid principle laid down by the Supreme Court, it is quite vivid that in the present case also, such procedure has not been followed by the trial Court and only on the basis of pleading of no instructions by the Counsel, proceeded ex-parte against the defendant. Hence, the approach of

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the trial Court is not proper and sustainable.”

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The judgment cited by the learned counsel for the respondent, passed on 28.09.2022 in First Appeal No.148/2019 (Virendra Kumar Shukla Vs. Rajendra Shankar Shukla and others) deals with the issue of limitation only, where first appeal was filed with a delay of 450 days and this Court applying the ratio laid down by the Hon'ble Supreme Court in the cases of Maniben Devraj Vs. Municipal Corporation of Brihan Mumbai, reported in (2012) 5 SCC 157, Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others , reported in (2013) 12 SCC 649 and Balwant Singh Vs. Jagdish Singh , reported in (2010) 8 SCC 685, held that the appellant could not make out a strong case for grant of condonation of the inordinate delay of 450 days in filing of the appeal.

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The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Rules of limitation are not meant to destroy the rights of parties. In the present case the petitioner who is old aged and illiterate person, on assurance of his counsel did not turn up to the civil court for a considerable period and his counsel also did not appear in the proceeding and on that count he was proceeded ex-parte. No notice or information was sent by that counsel to the petitioner, even no summons was issued by the learned trial Court. It is evident from the order impugned that prior to 19.11.2005 the

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petitioner had participated in the proceeding on regular basis, therefore, it cannot be presumed that he was not diligent in prosecution of the case. The learned courts below disbelieving the explanation given by the petitioner with regard to delay and his absence, rejected the applications for setting aside the ex-parte decree and condonatioin of delay. The medical documents were produced before the learned appellate Court but the same have not been considered. In every case of delay, there can be some lapse on the part of the litigant concerned and it alone is not enough to turn down his plea and to shut the door against him where rights of the parties is to be decided.

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Taking into consideration the above aspects, this petition is allowed and the order passed by learned appellate Court in Misc. Civil Appeal No.16A/2014 dated 27.04.2015 and the order passed by the Civil Judge Class - I, Pratappur in Misc. Civil Suit No.11/2011 dated 27.11.2014 are hereby set aside. The civil suit is restored to its original number. The parties are directed to appear before the court concerned on 16.08.2023.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Aadil

Viptaram v. Gambhira Ram Died through Lrs Jiyalal And Ors.

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Viptaram v. Gambhira Ram Died through Lrs Jiyalal And Ors.

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