Gulabchand vs Bankelal Soni

Dilip Raosaheb Deshmukh, J.

Heard finally.

The Appellant/Defendant is aggrieved by the rejection of his application under Order 9 Rule 13 CPC by order dated 22.11.2001 passed in M.J.C. No. 34/1997 by the 1st Additional District Judge, Durg.

Brief undisputed facts are that the Appellant/Defendant had engaged counsel to defend him in the Civil Suit No. IB/1995 for recovery of Rs. 3,00,000/ - on the basis of a written contract dated 28.11.1991. Adjournments were sought by counsel for the Appellant/Defendant for filing written statement. On 11.08.1996 counsel for the Appellant/Defendant did not appear. The Court proceeded exparte against the Appellant/Defendant and pronounced ex parte judgment on 21.02.1997.

The Appellant/Defendant moved an application on 08.08.1997 under Order 9 Rule 13 of CPC for setting aside the ex parte judgment and decree on the ground that he learnt about the ex parte judgment and decree for the first time on 28.07.1997. An application u/s 5 of the Limitation Act for condonation of delay in filing the said application was also filed.

The application was opposed by the Respondent/Plaintiff on the ground that the Appellant/Defendant was not prevented by sufficient cause from appearing on 21.02.1997 when the Court proceeded exparte against him.

The learned 1st Additional District Judge. Durg held that the Appellant/Defendant was extremely negligent in pursuing the litigation and that the Appellant/Defendant herein had failed to show any sufficient cause for his non-appearance on 21.02.1997. On these grounds, it rejected the application.

Shri Satish Chandra Verma, learned Counsel for the Appellant argued that the absence of the Appellant/Defendant on 11.08.1996 was not deliberate as he would not gain anything by suffering an ex parte judgment and decree against him. It was argued that the Appellant/Defendant ought not to be penalized for the default on the part of his counsel. Learned Counsel for the Appellant gave an undertaking that the Appellant/Defendant would actively participate in the suit and shall not seek any adjournment in the trial Court at any stage.

On the other hand, Shri Anand Kumar Tiwari, learned Counsel appearing for Respondent No. 1 opposed the application on the ground that the Appellant/Defendant was callous and took no steps to enquire about the progress of the case and filed the application after considerable delay on 07.08.1997. It was urged that if the ex parte judgment and decree is set aside, the Respondent/Plaintiff would suffer huge monetary loss as he would lose interest on the decretal amount.

Having heard rival contentions, I have perused the record. The law is well settled that unless the absence of the Appellant/Defendant is deliberate or to frustrate the proceedings of the Suit, the Court ought to view the absence of the Appellant/Defendant in a pragmatic and liberal manner especially when he had engaged a counsel to defend him, who not only made a default in appearance but also in informing the Appellant/Defendant about the progress of the case. In N. Balakrishnan Vs. M. Krishnamurthy, the Apex Court laid down the law for setting aside the ex parte decree in paragraphs 9 to 13 as under.

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 untrammeled by the conclusion of the lower Court.

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.

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 fixed a lifespan for such legal remedy for the redress 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 (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.

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" u/s 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari and Others, and The State of West Bengal Vs. The Administrator, Howrah Municipality and Others,

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 a 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.

Since there is no material on record to show that the absence of the Appellant/Defendant on 11.08.1996 or the delay in filing the application under Order 9 Rule 13 of CPC with an application u/s 5 was deliberate with a purpose to frustrate the proceedings of the suit, in view of the law laid down by the Apex Court in N. Balakrishnan v. M. Krishnamurthy (supra), I am of the considered opinion that the Appellant/Defendant ought not to be penalized for the default of his counsel and given an opportunity to defend the Civil Suit No. 1B of 1995. I am also of the considered opinion that the Respondent/Plaintiff ought to be adequately compensated for the monetary loss suffered due to the long delay during which this appeal has been pending. In this view of the matter, this appeal deserves to be and is accordingly allowed. The ex parte judgment and decree passed on 21.02.1997 passed in Civil Suit No. 1B of 1995 is set aside subject to payment of costs of Rs. 20,000/ - (Rupress twenty thousand only) by the Appellant/Defendant to be Respondent/Plaintiff within 30 days from today. Upon payment of such costs, the Civil Suit No. 1B/1995 shall stand restored to file. It is further directed that the learned trial Judge shall proceed with utmost expedition so as to conclude the suit within a period of six months from the date on which the parties would appear before him and shall not grant any adjournment unless it become absolutely necessary. To the extent possible the learned trial Judge shall proceed with day-to-day hearing of the suit. A compliance report shall also be sent to this Court within a period of six months by the learned trial Judge.

At this stage, Shri Satish Chandra Verma, learned Counsel for the Appellant submitted that in pursuance of order passed by this Court on 18.11.2002 in this appeal, the Appellant/Defendant has deposited 50% of the money part of the decree in the trial Court, and therefore, prayed that the trial court be directed to pay the amount of cost awarded by this Court to the Respondent/Plaintiff out of the said amount in deposit. Prayer is not opposed.

It is accordingly ordered that the trial Court shall pay as costs awarded to the Plaintiff a sum of Rs. 20,000/- out of the decretal amount deposited by the Appellant/Defendant in the trial Court by an account payee cheque in the name of the Plaintiff. It is further ordered that the parties shall appear before the trial Court on 28th February, 2008. No further notice shall be necessary. Additional Registrar (Judicial) is directed to ensure that record of the trial Court along with copy of this order is sent expeditiously to the trial Court so as to reach before 28th February, 2008.