Ashok Kumar And Another vs Pramod Kumar And Another

Lok Pal Singh, J

Petitioners have invoked the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India seeking quashing of the order dated 03.05.2019 passed by 8th Additional District Judge, Dehradun in Appeal no. 102 of 2012 "Ashok Kumar Vs. Pramod Kumar and others".

Brief facts of the case are that respondents/plaintiffs filed Original Suit No. 904 of 1998 "Pramod Kumar and another Vs. Ashok Kumar" in the Court of Civil Judge (Senior Division), Dehradun against the petitioners/defendants seeking possession and damages for illegal use and occupation of the property. Petitioners appeared before the court below and contested the suit and filed their written statements, denying the plaint averments.

The trial court fixed 25.02.2005 for framing of the issues. The defendant did not appear on the date fixed. The trial court vide order dated 25.02.2006 proceeded ex-parte against the defendants, thereafter, the plaintiff adduced their evidence. On 23.12.2006, petitioners/defendants moved an application under Order 9 Rule 13 C.P.C. for setting aside the ex-parte judgment and decree. A delay condonation application under Section 5 of Limitation Act was filed stating that they did not appear before the trial court on the date fixed as their counsel had given assurance to them that he will properly look after the case. It is also stated that on 12.12.2006, they came to know that the suit has been decreed ex-parte against them by judgment and decree dated 25.02.2006, whereafter they immediately filed the aforesaid application. In the delay condonation application, it is stated that though the petitioners were not aware about the ex-parte judgment and decree, but when they came to know about the ex-parte judgment and decree they filed an application for setting aside the said ex-parte judgment and decree.

It is contended that the application for setting aside the ex-parte judgment and decree has been filed from the date of knowledge of the ex-parte judgment and decree, therefore, the said application is well within time. It is stated that in case the court comes to the conclusion that there is delay in filing the application for setting aside the ex-parte judgment and decree, the same may be condoned, as the petitioners are entitled to get benefit of Section 5 of Limitation Act. Alongwith the delay condonation application, affidavits of Mr. Ashutosh Sharma and Rajeev Sharma, Advocates were filed indicating therein that Mr. Ashutosh Sharma, Advocate was contesting the case and the file was assigned to him. It is also stated that due to fault of a lawyer, the litigant should not be made to suffer.

The respondents filed their objections against the delay condonation application as well as to the application filed under Order 9 Rule 13 C.P.C. stating therein that no sufficient cause has been shown in the application. It is stated that initially the defendants/petitioners contested the suit but later on they did not appear before the trial court, therefore, the suit was decreed ex-parte against them on 25.02.2006. It is also stated that the delay has not been explained sufficiently and the application for setting aside the judgment and decree is highly belated and has been filed just to delay the execution of decree. It is contended that the limitation to file an application for setting aside the judgment and decree will run from the date of ex-parte judgment and decree and not from the knowledge as the petitioners were participated in the suit and subsequently not remain present on the date fixed.

Heard learned counsel for the parties and perused the material available on record.

After having considered the averments made in the delay condonation application as well as in the application for setting aside the ex-parte judgment and decree and affidavit filed in support of the application and also having considered the judgment cited by the parties, the trial court recorded finding that the defendant appeared in the suit and subsequently they disappeared, thereafter the suit was directed to proceed ex-parte against them vide ex-parte judgment and decree dated 25.02.2006 the suit was proceeded ex-parte. Further findings have been recorded that the in a case when the defendant appeared in the suit and subsequently suit decreed ex-parte, the delay is to be counted from the date of ex-parte judgment and decree and from the date of knowledge of the ex-parte judgment and decree. Consequently, the trial court by a reasoned judgment and order dated 23.05.2012 dismissed the application for condonation of delay as well as the application under Order 9 Rule 13 C.P.C.

Feeling aggrieved by the said judgment and order, the petitioners filed Misc. Civil Appeal No. 102 of 2012 "Ashok Kumar and another Vs. Pramod Kumar and another". The appellate court by its judgment and order dated 03.05.2019 dismissed the appeal. Hence, this writ petition.

Learned counsel for the petitioners would submit that petitioners should not be punished for inaction of their counsel. He would further submit that the Court should be liberal while deciding the delay condonation application. He also submits that the courts below ought to have condoned the delay as the grounds mentioned in the delay condonation application were bonafide and sufficient.

In support of his submission, learned counsel for the petitioners relied upon the case of Parimal Vs. Veena1. The relevant paragraph no.13 is extracted hereunder:

"Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously."

Contrary to this, learned counsel for the respondent would submit that courts below have rightly rejected the application for condonation of delay. He would further submit that the petitioners have not at all explained the delay in filing the application for setting aside the ex-parte judgment and decree within the statutory period. He would further submit that sufficient cause is the sine qua non for setting aside the ex-parte judgment and decree. He would further submit that the defendant could have filed an application for setting aside the ex-parte judgment and decree within 30 days from the date of ex-parte judgment and decree but the application was not filed within the stipulated period of 30 days, therefore, they filed a delay condonation application but the delay has not been sufficiently explained by them. He would further submit that the defendants/petitioners were served the notice of the suit and they also filed their written statement, however, subsequently on 25.02.2005, they did not appear before the court and the suit was directed to be proceeded ex-parte by order dated 25.02.2005, therefore, in view of the provisions contained in Article 123 of the Limitation Act, petitioners should have filed the delay condonation application, indicating the delay caused in filing the application for setting aside the ex-parte judgment but the delay condonation application was filed in a cryptic manner without indicating any sufficient cause He referred to Article 123 of the Limitation Act, 1963, which provides that where the notice was not duly served, the limitation will apply from the date when the applicant has acquired knowledge of the decree of ex-parte and in that event ex-parte decree can be set aside and can be reheard by the Court.

Hon'ble Apex Court in the recent judgment of Sanjay Singh and another2 has held that in absence of sufficient cause in filing the delay condonation application, delay should not be condoned when there was no satisfactory explanation of the delay. Relevant paragraph no.15 of the said judgment is extracted below:

"15. But, what is more striking is that the delay to the tune of 721 days was condoned by the High Court when there was no satisfactory explanation. In our view, there was gross negligence on part of the respondent and the explanation offered in support of the prayer for condonation does not appear to be correct. This is evident from the fact that no effective steps were taken to pursue the complaint which was lodged against the then advocate. In the petition for special leave, it was asserted that the complaint against the Advocate was not being proceeded with and the respondent had remained absent on the relevant date. Said assertion was not answered satisfactorily in the affidavit in reply filed in this Court. Taking totality of the circumstances, in our view the delay ought not to have been condoned by the High Court. We, therefore, accept the submission of the appellants and set aside the order condoning delay. Consequently, the First Appeal also stands dismissed."

I have gone through the case law placed by learned counsel for the petitioners. The ratio of judgments (Supra) is not applicable on the facts of the present case as in the present case neither the petitioners convinced the court below that there is no negligence on their part on belief of their counsel nor they produced the matter before the court below well within time. Since none of the ground has been mentioned by the petitioners in their application for condonation of delay, therefore, the judgment cited above by petitioner is not applicable.

Their lordships of Hon'ble Supreme court in the case Parimal (supra) have held that the meaning of the word "sufficient cause" is that the party had not acted in a negligent manner or there was a want of bonafide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting "diligently" or "remaining inactive".

In the judgment Sanjay Singh (Supra.) the delay of 721 days, which was not sufficiently explained, was condoned by the Allahabad High Court, which was set aside by the Hon'ble Apex Court for the reason that unless sufficient cause is shown the delay should not be condoned.

In view of the facts and circumstances of the case and the ratio of the judgment Supra, this Court is of the firm opinion that the petitioners have not sufficiently explained the delay in filling of the delay condonation application for setting aside the ex-parte judgment and decree, therefore, their conduct itself shows that the petitioners have not acted diligently in filing the delay condonation application. It transpires that applicant remained slept over the matter for allowing the unexplained period in filing the application. They cannot take benefit of their own wrong showing that they should not punish for the fault of their lawyer.

In exercise of jurisdiction under Article 227 of Constitution of India, the High Court cannot act as an appellate court. Such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of Appeal. It can neither review nor re-appreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised sparingly and carefully to meets the ends of justice but not in routine manner, in order to keep the inferior courts or tribunal into meets and bounds. Supervisory jurisdiction is not like an appellate or revisional jurisdiction. The same can be invoked when miscarriage of justice has been done with the party aggrieved. The jurisdiction under Article 227 of the Constitution of India is a supervisory jurisdiction conferred on all the High Courts and is confined only to examine as to whether the Subordinate Courts/Inferior Courts/Tribunals have proceeded within the parameters of its jurisdiction or acted beyond the parameters in exercise of jurisdiction.

It is settled position in law that the writ petition can be entertained by the Court, if there is any prejudice or miscarriage of justice. A perusal of the impugned order would reveal that neither any prejudice nor is there any miscarriage of justice has been caused upon the petitioners, while passing the impugned order dated 03.05.2019 by the court below. The learned Appellate Court has assigned the reason in rejecting the application.

Since, neither any perversity nor illegality or miscarriage of justice has occasioned to the petitioners, I find no scope to interfere in the order impugned in exercise of supervisory power under Article 227 of the Constitution of India. The writ petition is devoid of merit and is liable to be dismissed. The writ petition is, accordingly, dismissed.

No order as to costs.