Andari Govindaiah vs Vemula Venkatamma (Died) and Others

B.S. Raikote, J.—This revision petition is filed by the original defendant No. 3 challenging the order of the District Munsif, Sathyavedu dated 7-2-1994 passed on his file in I.A. No. 189 of 1993 in O.S. No. 32 of 1989. By the impugned order, the District Munsif refused to set aside the ex parte decree passed against the defendant No. 3. The learned advocate appearing for the petitioner strenuously contended that the impugned order refusing to set aside the ex parte decree is illegal and without jurisdiction. On the other hand, the learned Counsel appearing for the 1st Respondent (plaintiff) supported the impugned judgment and order.

In order to appreciate the rival contentions on both sides, it is necessary to note a few facts of the case: The 1st respondent (plaintiff) filed a suit against the 3rd defendant directing the 1st respondent and the 3rd defendant, if necessary, to execute and register a regular deed of reconveyance in favour of the plaintiff in respect of the suit schedule property as per the terms of the reconveyance agreement dated 28-3-1977. Further, the plaintiff also prayed for a direction directing the defendants to deliver possession of the plaint schedule property to the plaintiff after receiving the consideration of Rs. 3,000/- as agreed upon under the reconveyance agreement and he also prayed for costs. On 22-2-1991, all the three defendants were set ex parte and ultimately after taking the ex parte evidence of the plaintiff as P.W.I and by marking Exs.A-1 to A-ll, the suit was decreed ex parte against all the defendants on 4-3-1991. However, defendant Nos. 1 and 2 filed an application to set aside the ex parte decree in I.A. No. 104 of 1991 and the said I.A. has been allowed by an order dated 5-8-1991 and thereafter defendant Nos. 1 and 2 have filed written statements and the suit was posted for trial on 11-5-1992. Thereafter the present petitioner (Defendant No. 3) filed the present I.A. No. 189 of 1993 for setting aside the ex parte decree passed against him under Order 9 Rule 7 r/w 151 CPC. The petitioner stated in his affidavit that after the receipt of the summons, he engaged an advocate by name Sri K. Subbarama Raju residing at Puttur to contest the suit filed before the District Munsif, Sathyavedu and he gave all the papers to him. His advocate told him that the petitioner could come to him only on the receipt of a letter addressed by him to the petitioner for evidence and the petitioner need not have to worry about the matter. Thereafter, the petitioner did not receive any letter from his advocate. After waiting for 3 years, on 12-9-1993 he went to his advocate at Puttur to find out as to what happened to the suit. He was informed by the present advocate that due to the non-filing of the statement by the defendants, all the defendants were set ex parte by an order dated 22-2-1991 and later, on the application filed by the defendant Nos. 1 and 2 in I.A. No. 104 of 1991, the said ex parte decree was set aside on 5-8-1991 and the suit has been restored to file. The petitioner further stated in his affidavit that his present advocate stated that he would file a written statement in the above suit to show the bona fides on his part without any further delay. He stated that no evidence was "recorded by the other side and it was posted for trial. Under these circumstances, the petitioner submitted that he could not be present when he was placed ex parte on 22-2-1991 and when an ex parte decree was passed on 4-3-1991 and under these circumstances, he prayed for setting aside the ex parte order. Along with the present I.A., he also filed his written statement. It is submitted in the said I. A. that if the ex parte decree was not set aside, he would be put to greathardship and loss. The 1st respondent (the original plaintiff) filed a counter to the I.A. denying the allegations made in the affidavit filed in support of the I.A. and accordingly prayed for rejection of the said I.A. On that basis, the Court below formulated a point for consideration to the effect ''whether there are sufficient grounds to set aside the ex parte order passed against the 3rd defendant in the interest of justice''. On hearing both sides, the Court below rejected the said Interlocutory Application. It is in these circumstances, it is the 3rd defendant who has preferred this revision petition against the said impugned order.

The learned Counsel for the petitioner strenuously contended that the petitioner has made out a sufficient cause for his non-appearance on 22-2-1991 when a consequent ex parte decree was passed. The Court below was in error in rejecting the I.A. by passing the impugned order. The learned Counsel for the petitioner submitted that in the instant case, the petitioner resides in a village by name Kannavaram. He is an illiterate agriculturist. The Court is situated at a place called Sathyavedu and he had engaged a counsel by name Sri K. Subbarama Raju, who resides at Puttur. Since his advocate at Puttur told him that the petitioner could come to him only when he received a letter from the said advocate, at the time of evidence. He waited for 3 years and thereafter, he met his advocate to find out as to what happened to the suit and ultimately found that the ex parte decree was passed against him. Even though the ex parte decree was passed against the defendants 1 and 2 and, but the same was set aside on 5-8-1991, as a result, the ex parte decree has continued against the petitioner, as no application has been filed on his behalf, as he was not aware of the ex parte decree passed. He submitted that having regard to these circumstances, the petitioner has made out a sufficient cause for setting aside the ex parte order and decree, by condoning the delay. He also submitted that at any rate, the ex parte decree even as against the present petitioner should have been set aside, under lst proviso to Order 9 Rule 13C.F.C. in view of the fact that the ex parte decree against the defendant Nos. 1 and 2 was not severable from the ex parte decree passed against the present petitioner.

But, the learned Counsel for the 1st respondent (plaintiff) contended that the petitioner was negligent and he could have met his advocate much earlier and there was no reason as to why he had waited for 3 years. He further submitted that the present application was filed on 23-9-1993, but it was not accompanied by an application for condonation of delay, and under these circumstances, the Court below rightly refused to set aside the ex parte decree. He further submitted that the period of 30 days is fixed under Article 123 of the Limitation Act for filing an application for setting aside the ex parte decree and therefore, the petitioner should have filed a separate application for condonation of delay u/s 5 of the Limitation Act. Thus, he submitted that the Court has not committed any error in rejecting his application for setting aside the ex parte decree. Thus, he submitted that the impugned order does not call for any interference.

I have given anxious consideration to the facts of the case. From the reading of the impugned order, it is dear that the petition filed by the petitioner for setting aside the ex parte decree has been dismissed on 2 counts:

(1) The petitioner has not filed a separate application u/s 5 of the Limitation Act for condonation of delay. Therefore, the petitioner has failed to show the sufficient cause for his non-appearance on the date when he was placed ex parte; and

(2) Defendant Nos. 1 and 2 have already compromised the matter and the compromise petition was also pending before that Court.

So far as the 1st reason assigned by the Court below is concerned, it is no doubt true that there is no separate application filed u/s 5 of the Limitation Act. But, the petitioner has explained the delay in the affidavit filed in support of Order 9 Rule 13 application stating that when he engaged an advocate at Puttur, he was told by him that he would attend the matter and the presence of the petitioner would be required only at the time of evidence and he would write a letter to that effect. When he did not receive any letter, he contacted the advocate and found that an ex parte decree was passed. But, the learned Counsel for the petitioner strenuously contended that even if no separate formal application was filed, if the delay was otherwise explained in the affidavit filed in support of the application, it would be within the jurisdiction of the Court to condone the delay and in support of this proposition, he relied upon a Division Bench judgment of this Court in Ramachandra Row v. Seshaiah 1957 (2) An.W.R. 106. In the said decision, this Court held as under:

"The contention that the present order of the District Collector is invalid because he could not entertain a barred appeal without a petition to excuse delay supported by an affidavit setting out the reasons for the delay is equally without any force. It is not necessary that there should be a formal petition to excuse delay. It is always open to a Court or a tribunal to condone the delay if the person concerned is able to convince it that there were justificable grounds for the delay in presenting an appeal or a petition. The filing of a formal petition for excusing delay is not the sine qua non for the exercise of that power......"

The learned Counsel for the petitioner also relied upon another ruling of the High Court of Kerala reported in Unniraman Vs. Padmanabhan and Another, . That was also a case in which an ex parte decree was passed and an application was filed under Order 9 Rule 13 C.P.C. Their Lordships of the High Court of Kerala held in the said decision that if the delay was explained by the affidavit filed in support of the application under Order 9 Rule 13 and even if there was no separate application u/s 5 of the Limitation Act, the delay could be condoned if the applicant made out the sufficient cause. Having regard to this principle enunciated by this Court in ''Ramachandra Row''s case (1 supra) and in view of the decision of the High Court of Kerala in Unniraman''s case (2 supra), I am of the opinion that if the delay is otherwise explained on the basis of an affidavit filed in support of an application under Order 9 Rule 13 CPC even if there is no separate application for condonation of delay, the delay could be condoned. As held by the Supreme Court in Bhagwan Swaroop and Others Vs. Mool Chand and Others, the Court should not take a hyper technical approach to the case, if justice otherwise requires. Therefore, I am of the view that the Court below should have considered the case of the petitioner for condonation of delay on the basis of the affidavit already filed in support of an application under Order 9 Rule 13 C.F.C.

The learned Counsel for the petitioner submitted that the petitioner had engaged a Counsel and that Counsel has informed him that a letter would be written only when the case reached at the evidence stage and he could not receive the letter and in these circumstances. He approached his advocate to find out the stage of the case and found that the ex parte decree was passed against him. He submits that he is an illiterate person residing in a remote village Kannavaram. The Court is situated at Sathyavedu and the advocate whom he had engaged was residing at Puttur and he had given all the papers to him to attend the matter. In these circumstances, absolutely there was no negligence on his part. The learned Counsel for the petitioner relied upon a decision of the Supreme Court in Rafiq and Another Vs. Munshilal and Another, . He submitted that that was also a similar case to the case on hand. He invited my attention to the relevant portions in Para 3 of the judgment, wherein the Supreme Court held as under:

"The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court''s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch-dog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.................If we reject this appeal, as Mr. A.K. Sanghi invited us to do so, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. ...............We direct that the appeal be restored to its original number in the High Court and be disposed of according to law..........."

On the other hand, the learned Counsel for the 1st respondent (plaintiff) relied upon another ruling of the Supreme Court in Salil Dutta Vs. T.M. and M.C. Private Ltd., In the latter decision of the Supreme Court Salil Dutta Vs. T.M. and M.C. Private Ltd., ) the judgment in Rafiq''s case (4 supra) had been referred to and the same had been distinguished. In Salil Dutta Vs. T.M. and M.C. Private Ltd., in para 7 of the judgment, the Supreme Court observed as under;

"The question is whether the principle of the said decision comes to the rescue of the defendant respondent herein. Firstly, in the case before us it was not an appeal preferred by an outstation litigant but a suit which was posted for final hearing several years after the institution of the suit. The defendant is a private limited company having its registered office at Calcutta itself. The persons in charge of the defendant-company are not rustic villagers nor they are innocent illiterates unaware of Court procedures. Prior to the suit coming up for final hearing on June 9,1988 the defendant had filed two applications whereupon the Court ordered that they will be considered at the time of the final hearing of the suit. The plaintiff''s case no doubt is that the said applications were part of delaying tactics being adopted by the defendant-tenants with a view to protract the suit. Be that as it may, the defendant thereafter refused to appear before the Court..........."

From this paragraph of the Supreme Court, it is clear that in the latter case, the person against whom an ex parte decree was passed was a registered company and it had a staff who were highly educated; that the said company was also not co-operating with the proceedings of the Court, and that even the officers of the company refused to appear before the Court. Having regard to these facts only, the Supreme Court held that the company had not made out a sufficient. The Supreme Court observed that the principle laid down in Rafiq''s case (4 supra) applies to a different set of cases where a person is a rustic villager. But, from a reading of both the judgments of the Supreme Court, it is clear that the principle laid down by the Supreme Court in Rafiq''s (4 supra) squarely applies to the facts of this case also. In the instant case, the petitioner is a rustic villager and he resides in a remote village. He is an illiterate person and he engaged a. Counsel residing at Puttur and the Court is situated at Sathyavedu, and there was a communication gap between him and his advocate. Having regard to. these facts, I am of the opinion that the petitioner has made out a sufficient cause for condonation of delay on the basis of the averments made in the affidavit filed in support of the application under Order 9 Rule 13 C.P.C. Therefore, the Court below was in error in not setting aside the ex parte decree by condoning the delay.

There is one more reason which is a very strong reason in favour of the petitioner that the ex parte decree against the 3rd defendant otherwise was liable to be set aside, whether there was an application or not in view of the 1st proviso to Order 9 Rule 13 C.P.C. The relevant portion of Order 9 Rule 13 C.P.C. along with the 1st proviso may be extracted as under:

"13. 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 one the other defendants also:

xxxxxxxx".

This proviso mandates that if the ex parte decree is of such a nature that it cannot be set aside as against such defendants only (i.e., against the defendants who have filed an application under Order 9 Rule 13 CPC), it may be set aside against all or any of the defendants also. From this proviso, it is further clear that even against those defendants, who have not made any application for setting aside the ex parte decree by shwoing sufficient cause for their non-appearance on the date when they were placed ex parte or on the date when the ex parte decree was passed, still the ex parte decree passed against them could also be set aside if the decree was of such a nature. The nature of the decree contemplated by thelst proviso to Order 9 Rule 13 CPC may differ from case to case. If the decree is one and indivisible that it cannot be set aside only against some of the defendants withoug setting aside against others or it could also be of such a nature by setting aside the decree against some of the defendants and by maintaining the ex parte decree against those defendants who have not filed on application, when it results in conflicting of decrees or where the relief the Plaintiff is entitled to cannot be granted otherwise than by setting aside the decree as against the other defendants also, then the entire ex parte decree shall be set aside whether there is an application under Order 9 Rule 13 CPC or not by such of the other defendants. The words "other defendants" in the proviso means "defendants other than the applicant". In the instant case, the plaintiff has filed the suit against the defendants contending that he had executed a formal sale deed on 28-3-1977 purporting to sell the suit property in favour of defendant Nos. 1 and 2 on an understanding that the sale deed should be treated only as a mortgage deed and the property shall be taken as a security for the money advanced by defendant Nos. 1 and 2. He further contended in the plaint that defendant Nos. 1 and 2 had executed a separate agreement for re-conveyance on the same day i.e., on 28-3 1977 in favour of the plaintiff agreeing to re-convey the property to the plaintiff on payment of consideration. Further, he averred in the plaint that it was learnt that defendant Nos. 1 and 2 had fradulently sold the property in favour of defendant No. 3. On the basis of these pleadings, he prayed in the suit that defendant No. 1, if necessary defendant No. 3, may be directed to reconvey the property to him on the basis of an agreement of reconveyance dated 28-3-1977.

As I have noticed above, there was an ex varte decree against all the defendants and the said ex parte decree has been set aside only against defendant Nos. 1 and 2. The result is that the suit is restored against defendant Nos. 1 and 2 and the ex parte decree against defendant No. 3 is maintained. In the event the suit of the plaintiff fails against defendant Nos. 1 and 2 and accordingiythe suit is dismissed, then there would be conflict of decrees one passed against defendant Nos. 1 and 2 by dismissing the suit and the other ex parte decree standing against defendant No. 3. More over, In the written statement filed along with the application under Order 9 Rule 13 CPC, the third defendant contended that he is a bona fide purchaser for a valuable consideration from defendant Nos. 1 and 2 and he denied the alleged reconveyance agreement alleged to have been executed by defendant Nos. 1 and 2 in favour of the plain tiff. Therefore, if the suit were to be dismissed against defendant Nos. 1 and 2 by holding that there was an absolute sale in favour of defendant Nos. 1 and 2 by disbelieving the alleged agreement of reconveyance, then defendant No. 3 gets absolute rights as owner. In such circumstances, there cannot be any decree against defendant No. 3 to reconvey the property on the basis of an agreement alleged to have been executed by defendant Nos. 1 and 2 in favour of the plaintiff. From these circumstances, it is clear that the ex parte decree against all the defendants was of such a nature that the said ex parte decree should have been set aside against the 3rd defendant also when the said ex parte decree was set aside on 5-8-1991 on I.A. No. 104 of 1991 filed by defendants Nos. 1 and 2. I must make it clear that the power conferred by the 1st proviso to Order 9 Rule 13 CPC is a power conferred on the Court to set aside such an ex partedecree against the other defendants also. It does not confer any right on any party to the proceedings and such a party cannot claim by way of a right under this proviso. This proviso enables the Court to exercise such power to meet the ends of Justice. Having regard to the 1st proviso to Order 9 Rule 13 CPC also, I am of the opinion that the Court below had failed to exercise the jurisdiction vested in it. It is also brought to my notice that the evidence has not yet been started in this case, after the ex parte decree was set aside against defendants 1 and 2 and the matter was posted for compromise between the plaintiff and defendant Nos. 1 and 2. If there was to be a compromise between the plaintiff and defendant Nos. 1 and 2 adversely affecting the rights of the present petitioner (the 3rd defendant), then also there will be failure of justice. Hence, I pass the following order:

The revision petition is allowed, IA. No. 189 of 1993 filed by the present petitioner (original defendant No. 3) is allowed and delay is condoned and the exparte order dated 22-2-1991 and the consequent decree dated 4-3-1991 passed against him are set aside and the suit is restored to file even as against the 3rd defendant on payment of costs of Rs. 500/- to the plaintiff. The Court below is further directed to accept the written statement filed by the present petitioner and to proceed with the matter from that stage. Having regard to the facts and circumstances of the case, the parties shall bear their own costs in this revision petition.