Baboo Lal vs 3rd Addl.District Judge, Mathura and Others

Sri Rajeev Joshi, learned counsel for the petitioner. Sri Y. S. Bohra brief holder of Sri R. P. Goyal, learned Counsel for the respondent no. 3. Standing Counsel for the respondents no. 1 and 2.

The plaintiffrespondent no. 3 filed a suit No 2 of 1982 in the court of Civil Judge, Mathura for specific performance of an agreement to sell in respect of certain plot of land situated in village Gukhrauli, pargana Sadabad, district Mathura which has been alleged to have been executed by the defendantpetitioner on 1511981. The defendantpetitioner has been served with the notice of the said suit on 2511982. The defendant petitioner ergaged a counsel. An application has been filed on 141982 by the defenclantpetitiorer, in which a prayer has been made for the grant of time to file a written statement. The time has been granted but the defendantpetitioner did not file the written statement. Again on 171982 the same request has been made, which has been allowed by the learned trial court and one month''s time has been granted to the defendantpetitioner to file the written statement. The next date was fixed 281982 but no written statement has been filed even on the said date by the defendantpetitioner and as such the learned trial court .if passed an order to proceed ex parte in the matter against him and fixed 2081982 the next date in the case. On the next date i. e. 2081982 ex parte argument had been heard in this case and judgment was reserved. On 2681982 the ex parte decree has been passed in the suit. The defen�dantpetitioner filed an application under order 9. Rule 13 CPC and another application under Section 5 of the Limitation Act, 1963 on 4111992.

The grounds which have been taken by the petitioner in the said application ate that he is an issueless disabled person and as such he was unable to come to attend the court personally. He sent a Vakalatnama and an application from his village to the counsel through one Sri Chhidda Lal and he was asked to enquire about the date of the case. Sri Chhidda, it is alleged in the said application, remained busy in connection with his own litigation and could not enquire about the date fixed in the case after 171982 and that he had also not been informed of the said date fixed by his counsel. It has further been stated that the defendant''s relation with Sri Chhidda became strained and he did not know about the date 281982 fixed in the case, hence no written statement could be filed. It has further been stated that the petitionerdefendant went to Chandraban on 1571982 and remained there till 30111982. On 1111982 he returned to his village. On 2111982 he came to the court and from the court diary he could know that the said suit has been decreed on 2681982. Alongwith the said application an application supported by an affidavit under Section 5 of the Limitation Act for con�donation of delay in filing the said application had also been moved by the defendantpetitioner. This application was contested by the plaintiffrespondent. The learned trial court vide its order cated 541983 rejected both the said applications, which were filed by the defendantpetitioner under Section 5 of the Limitation Act for condonation of delay and under order 9, Rule 13 CPC for setting aside the ex parte decree dated 2681982. Against the aforesaid Order of the trial court dated 541983, the petitioner filed an appeal which too has been dismissed by the IIIrd. Addl. District Judge, Mathura vide his order dated 1331984. The petitioner has there�after filed the present writ petition before this court assailing the aforesaid orders of the courts below.

Sri Rajeev Joshi, learned counsel for the petitioner has argued that both the courts below have not recorded any finding on the question of disability of the petitioner. He next argued that the petitioner has made out sufficient cause for his absence on the date ex parte decree was passed in the suit but even then his aforesaid both applications have been dismissed by the trial court vide its judgment and order dated 541983 which has been affirmed by the appellate court. Lastly, he argued that the learned appellate court has wrongly stated in its judgment that one Shiv Charan Sharma had tiled an affidavit in support of the application under Section 5 of the Limitation Act which goes to show that the petitioner engaged other person to do the pairvi of the case on his behalf In support of his arguments Sri Joshi placed reliance on the decisions in the cases of Sangram Singh v. Election Tribunal, Kotah and another (AIR 1955 SC 425), Khursheed v. 1st Addl. District Judge, Moradabad & others (1988 AWC 1166).

Sri Bohra holding the brief of Sri R. P. Goyal, learned counsel for the contesting respondent, on the other hand, has argued that the petitioner has failed to make out sufficient cause for condonation of delay in filing the application under Order 9, Rule 13 CPC for setting aside the exparte decree. He further has argued that it is not a case where the summons have not been properly served on the petitioner. In this case, he argued, that the petitioner had engaged an Advocate and Sri Chhidda Lal was the person who was asked to do the pairvi of the case on his behalf. Twice application has been moved for grant of time to file the written statement and the learned trial court has granted the time. Sri Bohra further argued that the petitioner by putting all the blame on the counsel or on Sri Chhidda Lal has tried to make out a case for setting aside the ex parte decree ; that he is not a disabled person as he is doing his own farming and he had himself come to the court to file the appli�cation for setting aside the ex parte decree ; that his relation did not become strained ; that he had come to know about the passing of the said decree on 3081982 when the contesting respondent himself informed him about the passing of the said decree ; that instead of complying with the decree he had stated that he should file an application for setting aside the decree and linger on the suit; that on 18101982 the contesting respondent came to know that the petitioner is going to file an application for setting aside the decree and having the apprehension that the petitioner may do any wrong with the summon which has been served upon him, the contesting respondent moved an application on 19101982 in the court that the concerned summon may be put in a sealed cover. Lastly, Sri Bohra placed reliance on a decision of this court in the case of Mahraj Singh v. Bishambhar Dayal (1982 ALJ 897) and argued that in this case on the questions whether the petitioner has sufficient cause for condonation of delay in filing of the application for setting aside the decree and whether he was prevented by sufficient cause from attending the court on the date the suit was decreed were purely questions of fact and both the courts below have recorded concurrent finding of facts on these questions of facts and that this Court cannot sit as a court of appeal on these questions as it is only a case of appreciation of evidence and this Court cannot reappreciate the same.. Sri Bohra further argued that it is not a case where the findings are perverse or are based on extraneous and irrelevant considerations and tnat it is also not a case of the petitioner that the said findings are based on surmises and con�jectures. So far as the question of petitioner''s disability is concerned, Sri Bohra submitted that the petitioner did not produce any evidence on this question and as such there was no occasion in the present case to record any finding on this question. He aho contended that, therefore, the petitioner lias failed to make out any case that there is any error on the face of the Orders passed by the courts below.

I have considered the arguments made by the learned counsel for the parties. Both the courts below in the present case have recorded a concurrent finding of facts and the learned counsel for the petitioner has utterly failed to point out any perversity therein. None of the arguments, which have been raised by the learned counsel for the petitioner has any subsance. The petitioner has not produced any evidence regard�ing his disability The petitioner had not raised any such objection before the first appellate court. Even in the writ petition the petitioner has not made any grievance in this respect. In paragraph 13 of the writ petition, on the other hand, the petitioner has stated that admittedly he is a disabled man and is unable to move from the village. Apparently, this is a wrong statement of fact. In the counter affidavit which has been filed by the contesting respondent to the application of the petitioner for setting aside the ex parte decree, in paragraph 3, it has been stated that the petitioner is not a disabled person as he himself drives the''Hal'' and does his own farming. The said avernment of the petitioner appears to be incorrect by reading of the application filed by the petitioner under Section 5 of the Limitation Act and the application filed under Order 9, Rule 13 of the CPC. He himself had come to Mathura tor filing of the said aoplications. The said applications were filed by an advocate. It is admitted case of the petitioner that Sri Chhidda Lal was his brother and the fact, which has been stated by the contesting respondent that on 30882 he had informed the petitioner regarding passing of the decree and that the petitioner told him that he will delay the proceedings by filing an appli�cation for setting aside the decree have not been controverted. The suit is based on a registered agreement to sell as has been stated by the contesting respondent in paragraph 13 of the counteraffidavit to the application filed by the petitioner under Order 9, Rule 13 CPC. The con�testing respondent having an apprehension that same wrorg may be done by the petitioner in the summons, he moved an application in the trial court on 19101982 for putting the same in a sealed cover. The questions whether the petitioner has made out sufficient cause for condonation of delay or sufficient cause for setting aside the ex parte decree or sufficient cause for his absence on the date the ex parte decree was passed are purely questions of facts. It is a case where the notice of the suit has been properly served on the petitioner and on two occasions the defendantpetitioner was granted time for filing of the written statement The petitioner has also not tiled any affidavit of his counsel or any material evidence to thow that Sri Chhidda Lal had a strained relation with him. Therefore, the plea of the petitioner that his relation with Chhidda Lal has become strained appears to be manufactured ard con�cocted because in the ordinary course Sri Chhidda Lal was the only person to look after the case of the petitioner as he has no issue. Sri Chhidda Lal admittedly was entrusted with the pairvi of the suit. The assertion of the petitioner that his relations with Sri Chhidda Lal are not in good term are not believable because in the affidavit which has been filed by the petitioner in support of his application for setting aside the ex parte decree, the petitioner has stated a fact that on 171982 he moved an application through his pairokar Sri Chhidda Lal for grant of further time for filing of the written statement. In the affidavit another fact has been mentioned that Sri Chhidda Lal due to his busyness in his own litigation could not enquire the date of the suit after 171982. The said statement is absolutely an incorrect statement of facts because on 1782 on the application filed by Sri Chhidda Lal the case was fixed for 281982. The petitioner instead of filing the written statement had chosen to go to Chandraban on 1571982 and stayed there upto 311082 and on 11182 he returned to his village. Over and above these facts there is another fact which renders the case of the petitioner to be incorrect. In paragraph 5 of the affidavit the petitioner has stated that he could go to court on 2111982 as 1111982 was holiday ; that on 2111982 when he went to the court he came to know about the fact that the ex parte decree has been passed in the suit on 2681982. From these facts aver" ments the case of the petitioner that he is a disabled person and is unable to move or to do the pairvi of his case in the suit becomes incorrect on the face of it. He himself had come to the court on 2111982 and as such his disability was not to the extent that he could not move from his village. Further, the petitioner has also concealed a very important fact as to what was the necessity for him to go to the court on 2111982. On 2111982 only the petitioner had come to the court at Mathura for filing of the application for setting aside the ex parte decree. Thus from reading the averments made in the affidavit of the petitioner it comes out that he had knowledge of the passing of the ex parte decree in the suit earlier to 2111982. Consequently, I find sufficient force in the con�tention of the counsel for the contesting respondent that on 3081982 the petitioner had been informed by his client (sic) regarding passing of the ex parte decree in the suit. The learned trial court has recorded a finding of fact that on 1931983 Sri Chhidda Lal was present personally in the proceeding in the court on the date of hearing and as such it is incorrect to say on the part of the petitioner that his relation with Sri Chhidda Lal has become strained. The said finding of fact recorded bp the learned trial court has not been questioned by the petitioner either before the Ist appellate court or before this Court. When Sri Chhidda Lal was attending the court for setting aside the decree it goes to show that the applications of the petitioner for setting aside the ex parte decree and condonation of delay in filing thereof are not bonafide. It is a case where a story has been manufactured and concocted only for getting the ex parte decree set aside I do not find any illegality in the findings which have been recorded by both the courts below warranting interference of this Court under Article 226 of the Constitution of India.

In the result, the writ petition fails and same is dismissed. The parties are left to bear their own costs,

(Petition dismissed.)