Jagdish Lal vs Additional District Judge/ 1st FTC Roorkee And Ors

Sharad Kumar Sharma, J

In a Suit being Suit No. 80 of 1999, Maqsood Ahmad v. Green Gold Ukeliptus Pvt. Ltd. and others, was instituted by the respondent No. 3, for cancellation of the sale deed dated 28th January 1992, which was registered on 11th February 1992, before the sub registrar in the suit in question, the present petitioner had not been made as a party to the proceeding, though despite of the fact that the said Suit, which was instituted by Respondent No. 3 on 11th May 1999, was giving challenge to the sale deed dated 28th January 1992, which was executed in favour of the predecessor owner of the petitioner, from whom the petitioner has purchased the property in question vide sale deed dated 30th April 1992. The case of petitioner was that original owner of the property i.e. Mr. Tansen S/o Murad, he had executed a registered attorney on 10th October 1991, and had appointed plaintiff as his attorney holder. The plaintiff and opposite party No. 1 to the application of petitioner, under Order 1 Rule 10 to be read with application under Order 9 Rule 13, filed by the petitioner, he had executed the sale deed on 28th January 1992, which was executed in favour of defendant No. 1, it was rather he who had on 30th April 1992, sold the property in favour of the petitioner, by a registered sale deed which was in relation to the property lying in khasra No. 732 (ka) having an area of 1.242 hectare and the suit in question seeking relief for cancellation of sale deed which was filed much thereafter on 11th May 1999. That is almost after about 7 years of purchase by applicant/petitioner and he was placed in possession over the property thus sold by defendant No. 1. As far as the rights of the petitioner is concerned, it was flowing from the sale deed dated 30th April 1992, which was executed by the predecessor owner, that sale deed dated 30th April 1992 of the petitioner was not the subject matter of challenge in the Suit No. 80 of 1999, Maqsood v. Green Gold Ukeliptus Pvt. Ltd. and others. But in any way otherwise also the consequential effect of the grant of relief in the suit would be that if the sale deed of his predecessor owner dated 28th January 1992, itself is set aside by the ex parte judgement and decree dated 30th May 2001, it is bound to have a consequential effect with regards to the title of the petitioner, which he has derived from his predecessor owner i.e. defendant No. 1.

In these circumstances when he faced the exparte judgement and decree on 30th May 2001, cancelling the sale deed dated 28th January 1992, the petitioner had filed an application under Order 1 Rule 10 to be read with under Order 9 Rule 13, duly supported with the Delay Condonation Application under Section 5 of the Limitation Act by filing the same before the Court concerned on 14th July 2008. The Delay Condonation Application, supporting the Application under Order 9 Rule 13, it was reported therein the application that there is a delay of about 13 days in filing the application, which according to the petitioner, it was being determined after the Court has resumed its proceedings after the end of summer vacation. Though, the law otherwise postulates that, the application, if any, of which the limitation is expiring, during the summer vacation, then it ought to be filed on the opening day of the Court itself. If it is not filed on the opening day of the Court, in that eventuality, the limitation for drawing a proceeding would also take into consideration, the period for which the Court was on vacations. Consequently, at the most, if at all the application under Order 9 Rule 13 of the petitioner is concerned, which according to him, has been preferred with a delay of 13 days and if in accordance with the version of the respondent, is taken into consideration, then at the most, if the delay is determined, it would be about 43 days delay in filing the application to set aside the ex parte decree dated 30th May 2001.

The Delay Condonation Application, which was filed along with the Order 9 Rule 13 by the petitioner, it came up for consideration before the learned trial Court and the learned trial Court vide its judgement dated 28th May 2009, as rendered in Miscellaneous Case No. 32 of 2008, Jagdish Lal v. Maqsood Ahmad and others, had rejected the application filed by the petitioner under Section 5 of the Limitation Act, which was filed in support of the application under Order 9 Rule 13. Being aggrieved against the said order dated 28th May 2009 of rejecting the Delay Condonation Application, the petitioner has preferred a Civil Revision being Civil Revision No. 94 of 2009, Jagdish Lal v. Maqsood Ahmad and others, and the said Civil Revision, too was dismissed by the impugned order dated 30th April 2011, resulting into consequential rejection of the application under Order 9 Rule 13. It is against these two orders, against which the present writ petition has been filed by the petitioner.

When the writ petition was taken up for consideration, at admission stage, the notices were issued to respondents on 25th May 2011, and they were directed to file their counter affidavits. Respondents have been duly served. And as per the office report of the Registry, that even respondent No. 5 has already put in appearance through Mr. K.S. Verma and Mr. R.K.S. Verma. But, despite of having put in appearance, the respondent had not yet filed any counter affidavit, controverting the pleadings as raised by the petitioner in support of his writ petition while assailing the orders impugned in the writ petition, rejecting the Delay Condonation Application.

Hence, under the settled law if the pleadings have not been controverted by the respondent despite of having putting in appearance and for last about more than 8 years, no counter affidavit has been filed, it can be taken as to be that the pleadings, which has been raised by the petitioner in support of his contention, while giving the challenge of the impugned order of rejecting the delay condonation application and hence in the absence of there being any denial of the pleadings with regards to the propriety of the impugned orders are concerned and as pleaded by the petitioner in the writ petition and even otherwise also, the delay which has chanced in filing the Application under Order 9 Rule 13 since at the most, it could be treated that it was delayed by a maximum period of 43 days delay, but that in itself is not so fatal that the principal application under Order 9 Rule 13, should be side track and not being considered on its own merits after the condonation of delay. Even otherwise also, it is well settled that as far as the element of delay is concerned, that is to be construed liberally in favour of the person who is applying, more particularly in the instant case when the applicant to the application under Order 9 Rule 13, against whom the decree dated 30th May 2009 was rendered, he was not made as party to the proceedings but the consequential effect of ex parte decree dated 30th May 2001, was having an affect on his title because the title of his predecessor owner was itself was endangered by the exparte decree dated 30.05.2001, who otherwise, in view of the sale deed, would be treated to have lost his interest after having executed sale deed in favour of the petitioner on 30th April 1992, as of now the petitioner would be treated to have stepped into the shoes of defendant No. 1, after the purchase of the property made by him. Hence, in fact, it was his interest which was vitally affected by the exparte decree dated 30th May 2001.

Even otherwise also, after the execution of the sale deed in favour of the petitioner by the predecessor owner against whom the principal Suit No. 80 of 1999, Maqsood Ahmad v. Green Gold Ukeliptus Pvt. Ltd. and others, was instituted, it was necessary and inevitable that any subsequent purchaser, whose rights are being remotedly affected by the decree, he should have been made as a party to the proceedings of the Suit No. 80 of 1999, Maqsood Ahmad v. Green Gold Ukeliptus Pvt. Ltd. and others. The logic behind it is that by giving a challenge to the sale deed of the seller of the present petitioner, it goes without saying that once he has executed the sale deed in favour of the petitioner on 30th April 1992 in relation to the property in dispute, he has lost his interest to pursue the proceedings of the Suit in which the sale deed of the predecessor of the petitioner dated 28th January 1992, is put to challenge. But, ultimately, the consequential effect of the exparte decree would be that it has a direct and consequential bearing as far as the flow of title on the present petitioner is concerned, because the petitioner against whom the Suit was filed if it is decided against him, it ultimately falls upon the very right of the petitioner himself. But anyway that is an issue which has to be decided when the trial Court considers an application under Order 9 Rule 13 filed by the petitioner, when it is considered on its own merit.

Since this Court at the present stage is only concerned with the adjudication of the Delay Condonation Application, which stand rejected by the impugned orders of Court below, this Court is of the view that looking to the reasons, which has been given in the Delay Condonation Application on the ground that immediately after passing of the decree dated 30th May 2001, since the Court has gone on summer vacation and according to the petitioner since he has filed the application under Order 9 Rule 13 on 14th July 2001, it ought to be treated to have been filed within the time because it was well within the prescribed time period of limitation if determined after the expiry of the period of vacation, during which the Court remained under vacation.

In that view of the reasons which has been given in the impugned order to the effect (1) that he was not made as party to the proceedings of the suit; (2) that the ex parte decree which was rendered immediately a day before the start of the summer vacation; (3) that the application under Order 9 Rule 13 was filed well within 30 days after the opening of the Court after the lapse of the vacation, and on revival of the Court proceedings.

As far as the technicality of the limitation is concerned, that has to be rationally determined and construed by the Court, because no one should be deprived of a right of adjudication on merits of the matter rather than on technicalities of limitation.

In that view of the matter, the writ petition is allowed. The impugned orders so far it relates to the rejection of the delay condonation application under Section 5 of the Limitation Act, as filed by the petitioner in support of the application under Order 9 Rule 13, to be read with application under Order 9 Rule 13 C.P.C. the same is quashed. The learned Court of Civil Judge (Senior Division) is directed to consider the application of the petitioner as filed by him under Order 9 Rule 13, as well as under Order 1 Rule 10 on its exclusive merits.

Subject to the above observations, the writ petition stands allowed. However, there would be no order as to cost.