Hari Shankar Dubey vs Charuchandra Dwivedi and Others

Dipak Misra, J.

Invoking the revisional jurisdiction of this court u/s 115 of the CPC the petitioner has called in question the legal validity of the order dt. 16.2.2000 passed in Misc. Civil Appeal no. 7/99 by the learned Second Additional District Judge, Hoshangabad wherein the learned appellate Judge has affirmed the order dt. 3.8.99 passed by the First Civil Judge, Class-I in Misc. Case no. 3/98 whereby the court of first instance refused to condone the delay in filing an application under Order 9 Rule 13 of the CPC and consequently dismissed the application for setting aside the exparte decree.

The facts as have been depicted are that the non-applicants 1 and 2 instituted a civil litigation against the present petitioner for possession of Kh. no. 36/1 admeasuring 1.69 acres and Kh. no. 38/1 admeasuring 23.61 acres total area of 25.30 acres situate in village Mangariya Tahsil and District Hoshangabad and for mesne profits at the rate of 3000/- per annum from 1984-85, After receiving the summons in the suit ''he defendant petitioner appeared on 22.8.85 through his counsel Hanskumar Diwan and filed his writen statement. Shri Hanskumar Diwan continued to conduct the case on behalf of the petitioner till his death on 26.8.92. Thereafter his son Sushil Kumar Diwan took charge of the case. In the early part of 1995 the sister of the counsel was allotted an agency of the Indane Gas in Hoshangabad for which the counsel became very busy and in his absence the case was looked after by Shri Dinesh Kumar. Shri Sushil Kumar Diwan who was related to the defendant petitioner was the main counsel and had assured him that he would instruct him to attend the court whenever required. Shri Sushil Kumar Diwan did not inform the petitioner about the progress of the suit and only told him that formal dates were being given and when ever appearance would be required he would intimate the petitioner. On 3.4.98 the petitioner came to know that some persons had come to the disputed land and discussed about taking over possession. Thereafter the petitioner went to the Court and upon enquiry found that he was proceeded ex parte on 7.1.98 and an ex parte decree had been passed against him on 14.1.98. After coming to know about this situation the petitioner filed an application under Order 9 Rule 13 of the CPC (hereinafter referred to as the Code'') for setting aside the ex parte decree dated 14,1.98. As there was some delay in filing of the application to set aside the ex parte decree, an application u/s 5 of the Limitation Act was filed for condonation of delay. In support of his case the petitioner examined himself and his counsel Sushil Kumar Diwan.

The learned trial Judge while dealing with the application for condonation of delay came to hold that the applicant was not vigilant in prosecuting his case and he should have kept in touch with his counsel and found out about the progress of the suit. He further held that as the same was not done, it could be concluded that he was not vigilant enough to keep himself informed. Being of this view the learned trial Judge rejected the application preferred u/s 5 of the Limitation Act and consequently the application for setting aside the ex parte decree stood dismissed.

Feeling aggrieved the petitioner went up in appeal before the learned Additional District Judge, Hoshangabad. The appellate court while affirming the order passed by the learned trial Judge came to hold that the counsel Sushil Kumar Diwan was a close relative of the petitioner and they were living in close proximity and met regularly and, therefore, the petitioner should have made proper enquiry about the case and as he has not done so the same amounts to culpable negligence on his part. The learned appellate Judge further held that the petitioner was very much aware that his engaged counsel was busy in his sister''s work and was not appearing in court and, therefore he should have been more vigilant in making enquiries about the case and his failure to do so is indicative of negligence on his part. The learned Additional District Judge further opined that as the petitioner was enjoying possession of the land he (sic)liberately absented himself with malafide intention and later on filed the application for setting aside the ex parte decree. After recording such findings the learned appellate Judge dismissed the appeal.

I have heard Mr. Ravish Agarwal, learned senior counsel alongwith Mr. Pranay Verma, learned counsel for the applicant and Mr. V.S. Shroti, learned counsel for the non-applicants 1 and 2.

It is submitted by Mr. Agarwal that both the courts below have failed to appreciate that the petitioner was an old man of seventy years and was totally dependant on his nephew who was his counsel with regard to the progress of his suit and such dependence is in tune with human nature. It is further canvassed by him that the petitioner is not an educated person and was not aware about the procedure of the court, as a result of which he had placed implicit faith in his counsel. The learned counsel has further contended that the findings of the courts below that the petitioner had exhibited culpable negligence and his action was malafide are not based on proper appreciation of facts and prima facie show perversity of approach warranting interference in this civil revision. In support of his submission learned counsel has placed reliance on the decision in the case of N. Balakrishnan Vs. M. Krishnamurthy, .

Resisting the aforesaid submissions it is canvassed by Mr. Shroti, that the courts below have given adequate reasons for their refusal to condone the delay and the consequential dismissal of the application preferred under Order 9 Rule 13 of the Code and hence, no fault can be found with the said orders. It is proponed by him that the petitioner has himself admitted that Sushil Kumar Diwan did not attend the court from 1996 but the petitioner did not make any effort to enquire about the progress of the case which is clearly indicative of the fact that he was culpably negligent. The learned counsel has further urged that the orders passed by the courts below are not liable to be interfered with in exercise of jurisdiction u/s 115 of the Code in-as-much as there is no error of jurisdiction or any material irregularity in exercise of jurisdiction. It is his further submission that counsel''s advice not to attend the hearing of the case is no ground to condone the delay. In support of his submissions he has placed reliance on the decisions rendered in the cases of Masjid Kacha Tank Vs. Tuffail Mohammed, AIR 1991 S.C. 455, State of Madhya Pradesh and Others Vs. Dr. (Mrs.) Sumedha Gajendragadkar and Another, , Sri Kempaiah Vs. Smt. Chikkaboramma and Others, and Mudigonda Chandra Mouli Sastry Vs. Bhimanepalli Bikshalu and Others, .

To appreciate the rival submissions raised at the Bar, I have carefully perused the orders passed by the courts below and have bestowed my utmost anxiety to scan the same. On a close scrutiny of the order passed by the appellate court it appears that the appellate court was impressed by the fact that the appellant is in possession and in order to retain his possession he has remained deliberately absent to gain the advantage of possession. The lower appellate Judge has taken exception to the fact the petitioner had knowledge that his engaged counsel Sushil Kumar Diwan was busy in the gas agency of his sister and was not attending the court, and inspite of such knowledge he did not make efforts to know about the progress of the litigation.

The core question that falls for consideration is whether the petitioner should be blamed and put to jeopardy for the fault of his counsel. True it is in all circumstances the fault of the counsel cannot be exonerated. It will depend upon the facts of each case. In the present case the petitioner was a septuagenarian who had engaged a relative of his to look after his case. On a perusal of the orders passed by the courts below it is crystal clear that the counsel Sushil Kumar Diwan was a close relative of the petitioner. At the age of seventy it is expected from an uneducated man to depend upon his counsel to know about the progress of the suit. The evidence on record clearly show that Sushil Kumar had given assurance to the petitioner from time to time that he would apprise about the date when the petitioner''s personal presence would be necessary in court. This aspect has also not been dis-believed but exception has been taken to by the courts below on the ground that his counsel had stopped going to the courts and, therefore, the petitioner should not have placed implicit reliance on him. Submission of Mr. Shroti is that finding of fact in this regard should not be disturbed in exercise of jurisdiction of civil revision. True it is, findings of fact are not to be disturbed unless they are totally perverse or totally against the material on record. In the case at hand the exception taken by the courts below is not acceptable as the facts clearly exposit that there was no capable negligence on the part of the petitioner in placing implicit faith in his counsel who was his close relative. The petitioner was not aware about the procedure of the court. He was also quite aged. In these circumstances reliance on a councel way quite expected and the exception taken by the courts below is unacceptable.

At this juncture, I may profitably refer to the decision rendered in the case of N. Balakrishan (supra) wherein the Apex court took note of an advocate''s mistake end observed as under :-

Appellant''s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

Their lordships further held as under:

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 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 occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning 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 a 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.

If the present factual scenario is tested on the touch stone of aforesaid pronouncement there remains no iota of doubt that the petitioner cannot be held liable for culpable negligence. The lower appellate Judge has also opined that the petitioner deliberately remained absent to get the benefit of the litigation. The question that arises for consideration whether the petitioner with ulterior motive took resort to the dilatory tactics to get the benefit of the pendency of the litigation. True it is the plaintiff initiated the action for possession. The petitioner-defendant claimed his right to possession. He filed his written statement in that regard. The suit went on for long and the petitioner was eventually set ex parte by order dt. 7.1.98. In this backdrop the courts below could not have put the blame on the petitioner for prolongation of the suit.

In view of the aforesaid discussion I am of the considered opinion that it cannot be said that the petitioner took resort to delay to gain benefit out of this litigation. Hence, I am not able to concur with the said findings of the appellate court. Mr. Shroti has cited decisions to the effect that the High Court should not interfere unless there is jurisdictional error or material irregularity in exercise of jurisdiction. But in the case at hand the courts below have recorded findings which are not defensible in-as-much the very approach is totally erroneous. It is to be borne in mind that concept of ''sufficient cause'' depends on facts of each case. There cannot be a strait jacket formula to depict what exactly constitutes sufficient cause. Peculiar circumstances of each case has to be taken into consideration. The courts have to adjudge on the touch stone of pragmatic parameteres. It is common knowledge that the litigants depend upon their counsel and they have intrinsic faith in them. That apart in the case at hand claim in respect of substantial property is involved. Therefore, it is necessary that it should be adjudicated on merits. In this context, I may profitably refer to a decision rendered in the case of Nakula Swain and others Vs. Jogendra Das, (1996) 81 CLT 765 wherein it has been held as under :

Litigations are required to be adjudicated on merits. Sometimes due to unavoidable circumstances or due to incomprehensible inadvertances parties fail to participate in the proceeding though their substantial rights are affected. A recalcitrant litigant is not to be given indulgence, but simultaneously, insurmountable difficulties and the pertinence of fact situation in every case has to be given due weightage. A malicious move to allow an ex parte decree to be passed and thereafter to file an application to set it aside is abominable and repulsive but when bona fide mistakes occur the courts are required to have a lenient, liberal and compassionate approach.

If the aforesaid principle is applied to the case at hand I am of the considered view that the impugned orders do not stand close scrutiny and are to be set aside and the petitioner has to be afforded an opportunity to resist the claim of the plaintiff and accordingly I so direct. While affording an opportunity to the petitioner it cannot be ignored the hardship that would be caused to the plaintiff when the exparte decree is set aside. To strike a balance I am of the considered view the plaintiff has to be compensated. Taking into consideration the nature of the litigation and the extent of property involved it is directed that the ex parte decree passed by the courts below shall be set aside subject to payment of cost of Rs. 7500/- to the plaintiffs in the court below within a period of eight weeks from today. As the suit is pending for a considerable length of time, I direct that the same should be disposed of expeditiously, preferably, by end of February-2001. If the cost is not paid within the time stipulated above the ex parte decree would become operative.

In the result the civil revision is allowed. There shall be no orders to costs.