Indira Devi vs Surender Gupta

Surjit Singh, J.—Petitioner has assailed, by means of the present appeal order dated 18.2.2010 of Fast Track Court, Mandi whereby her application u/s 5 of Limitation Act for condonation of delay in filing appeal, against ex-parte decree, stands dismissed.

Suit was filed by respondent Surender Gupta, against the petitioner in the year 2000. Petitioner was represented by a counsel named Sh. R.D. Chaudhary. It appears that respondent did not file written statement and availed of several opportunities, spreading over a period of one year. Petitioner counsel also did not appear on one date and therefore order of ex-parte proceedings was passed. This order was passed on 10th August 2001. An application under Order 9 Rule 7 C.P.C. was moved by the appellant for setting aside order of ex-parte proceedings aforesaid. That application was dismissed on 26th September, 2002.

Ultimately, an ex-parte decree was passed against the petitioner and in favour of the respondent on 11.9.2007. Petitioner filed an appeal challenging that ex-parte decree on 21st February, 2008. She also filed an application u/s 5 of the Limitation Act for condonation of delay in filing the appeal. In the application, it was stated that the petitioner came to know about the passing of the impugned ex-parte decree on 16th of February, 2008 when her Mali Bhupinder Kumar visited her and informed that the respondents. were not allowing him to do work on the suit property and that when he (Mali) asked them why they were interupting, they told that the respondents had filed a suit, against the petitioner/ defendant which stood decreed It was further stated in the application that thereafter the petitioner contacted her lawyer and appeal was filed.

Application was opposed by the respondent/plaintiff. Reply was filed. First appellate Court recorded the evidence adduced by the parties.

Petitioner examined herself as PW-1 and also her Mali Bhupinder Kumar as PW-2 while the respondents examined their attorney Sh. Govind Ram as RW-1. Learned first appellate court concluded that sufficient cause had not been shown for condonation of delay. Consequently the application was dismissed.

I have heard learned Counsel for the parties and gone through the record of the case.

Counsel, representing the respondent, submits that when the petitioner/defendant had filed an application for setting aside ex-parte proceeding order passed against her in the year 2001 and her application had been dismissed in the year 2002, she could not be heard to say that she was not aware of the passing of the ex-parte decree until the men of respondent/plaintiff allegedly went to the spot and prevented her Mali from working on the suit property. He argues that application under Order 9 Rule 7 of C.P.C for setting aside ex-parte proceedings was dismissed in the year 2002., matter remained pending for five years and thereafter, petitioner was represented by a counsel during these five years.

Petitioner testified that her lawyer did not inform her about the ex-parte decree passed in favour of the respondent/plaintiff and for that reason she could not file the appeal within time. She also stated that she came to know about the passing of the ex-parte decree only in the month of February, when her Mali PW-2 informed her that the men deputed by the respondent/plaintiff were proclaiming that a decree had been passed in respondents/plaintiffs favour. She stated that she was rustic & illiterate. Her statement was corroborated by her mali Bhupinder Kumar PW-2.

Learned First Appellate Court has observed that appellant can not be said to be an illiterate and rustic woman, because her husband, according to her testimony, had been visiting the lawyer, engaged by her occasionally. It has come in evidence that husband of the petitioner/plaintiff was posted as Assistant Engineer at Karsog. During those days the matter was pending in the court of Sunder Nagar. It takes more than four hours to cover the distance between two places even by a car. If one has to travel by bus, it would take another 2-3 hours. In any case, there should be no reason to disbelieve the testimony of the appellant that her counsel did not inform her about the passing of the ex-parte decree. The mere fact that earlier she had been proceeded ex-parte and her application for setting aside order of ex-parte proceedings had been dismissed does not in any way, deprives her to seek condonation of delay, in filing the appeal nor does it show any malafide

It is by now well settled that term "sufficient cause" used in Section 5 of the Limitation Act, is required to be interpreted liberally because it does not cause prejudice to either of the parties. On the other hand non condonation of delay, and dismissing the appeal, on account of bar of limitation, may cause immense loss to the party, whose petition for condonation of delay is rejected. The other side can always be compensated by means of costs on account of delay in filing the appeal.

For the-fore going reasons, revision petition is allowed, impungned order is set aside and application u/s 5 of the Limitation Act filed by the revision petitioner, is allowed subject to payment of costs of Rs. 3000/-. Parties are directed to appear before the Fast Track Court, Mandi on 29.10.2010. Costs will be paid within four weeks of appearance of the parties before the first appellate court on the aforesaid date.