Mohabbat Singh vs Basanti Devi And Others

Sharad Kumar Sharma, J

There are bundle of mixed facts, which are involved consideration in the present Writ Petition. The first and foremost consideration which could legally be taken by the Court as against the impugned order is pertaining to its tenability for the reasons that legally as per law as against the rejection of an application under Order 9 Rule 13, the Revision is not maintainable because under the CPC, in accordance with the provision contained under Order 43 Rule 1(d), the only procedure and legal remedy, which is prescribed therein is of preferring of an Appeal against the rejection of Order 9 Rule 13 by invoking Section 104 of CPC. That in itself could be a valid and legal ground to allow the Writ Petition and to set aside the impugned order, by virtue of which, the Revision preferred by the respondents against the rejection of the Misc. Case No. 470 of 1993, Anand Singh Vs. Mohabbat Singh under Order 9 Rule 13 itself would not be maintainable.

But looking to the age of the litigation, this Court is not deciding the impugned judgment from the said perspective rather is proceeding to decide the impugned order under challenge on merits itself with the permission and the consent extended by the counsel for the parties.

The precise question, which came up for consideration before the Court below was that there was a Suit filed, being Suit No. 7 of 1979, Mohabbat Singh Vs. Jhandu Singh and others, in which, the relief sought was that of a decree for partition and possession over the property and also for grant of a decree of permanent injunction as against the three defendants, Jhandu Singh, Prathvi Singh and Nakal Singh. The said suit proceeded and by virtue of the judgment and decree dated 8th May, 1989, the Suit was decreed in favour of the plaintiff/petitioner and a preliminary decree was passed in favour of the plaintiff/petitioner. As against the judgment and decree dated 8th May, 1989, consequently, a preliminary decree as framed as a consequence of the judgment dated 8th May, 1989, a final decree was also prepared and a final decree was rendered in Misc. Case No. 85 of 1989, Mohabbat Singh Vs. Jhandu Singh and others, whereby, the preliminary decree was affirmed, consequently, the partition Suit No. 7 of 1979, Mohabbat Singh Vs. Jhandu Singh and others finally stood settled and confirmed in pursuance to the final decree of partition.

It is at this stage the controversy started germinating when the heirs of late Mr. Prathvi Singh, i.e. the defendant No. 2, had filed an application for restoration by invoking the provisions contained under Order 9 Rule 13 of the C.P.C., seeking to set aside allegedly the ex parte decree dated 8th May, 1989 and the final decree dated 15.03.1993 / 26.03.1993. The said application, which was filed on 23rd April, 1993, it was duly endorsed by the heirs of the defendant Mr. Prathvi Singh, defendant No. 2. The said application, which was filed under Order 9 Rule 13 of the CPC was registered by the Civil Judge (Senior Division) as Misc. Case No. 47 of 1993, Anand Singh and others Vs. Mohabbat Singh. The fact that all the heirs of the application under Order 9 Rule 13 were the heirs of late Mr. Prathvi Singh is as apparent from the cause title of the application, being paper No. 49-Ga2, which was filed before the Court below, i.e. by respondent No. 4 to 14. The said case after being instituted on 23rd April, 1993, seeking to set aside the decree of 08.05.1989, unfortunately, the application under Order 9 Rule 13 preferred by heirs of defendant No.2 was dismissed for want of prosecution, initially for the first time on 5th February, 1999.

Seeking recall of the said order dated 5th February, 1999, rejecting Misc. Case No. 47 of 1993, filed under Order 9 Rule 13 by an order dated 05.02.1999, a Misc. Case No. 6 of 1999 was preferred by the respondents, herein, which was allowed by the Trial Court by its order dated 26th May, 2000 and as a consequence thereto, the application registered as Misc. Case No. 47 of 1993, Anand Singh Vs. Mohabbat Singh, under Order 9 Rule 13 was restored back to its original number.

After the restoration of the said case under Order 9 Rule 13 by an order dated 26.05.2000, once again the same was dismissed in default for the second time on 26th August, 2000. Seeking recall of the said order dated 26th August, 2000, a Restoration Application was preferred by the respondent, which was registered as Misc. Case No. 2 of 2002 and consequently, the order dated 26th August, 2000 was recalled and the Misc. Case No. 47 of 1993 was restored yet again by an order dated 1st November, 2002.

What is surprising is that yet again, the application preferred under Order 9 Rule 13 of the C.P.C. filed by the respondents was dismissed in default for want of prosecution for the third time on 28th April, 2005. Seeking restoration of the order dated 28th April, 2005, dismissing the application under Order 9 Rule 13, a restoration application was filed on 04.05.2005, which was numbered as Misc. Case No. 29 of 2005, Virendra Singh Vs. Mohabbat Singh by invoking the provisions under Section 151 of the C.P.C.. The learned Trial Court allowed the said restoration application and the order dated 28th April, 2005 and the same was restored by an order dated 21st December, 2006 and as a consequence thereto, the Misc. Case No.29 of 2005, Virendra Singh Vs. Mohabbat Singh was allowed. The Misc. Case No. 2 of 2002, which was registered before the Court below to set aside the order dated 26.08.2000, but the same was yet again dismissed for want of prosecution on 6th September, 2007 and consequent thereto, the Misc. Case No. 47 of 1993, Anand Singh and other Vs. Mohabbat Singh was taken into consideration and was decided by the order dated 5th February, 2009.

In the meantime, the restoration application, which was registered as Misc. Case No. 23 of 2009, preferred by the respondents seeking to set aside the order dated 5th February, 2009, was allowed by an order dated 23rd March, 2009 and the order dated 5th February, 2009, was set aside and as a consequent thereto, ultimately, Misc. Case No. 47 of 1993, preferred under Order 9 Rule 13 of the CPC by the judgment debtor was dismissed by an order dated 3rd April, 2013. The resultant effect of the order dated 3rd April, 2013 was that the Misc. Case No. 47 of 1993, preferred under Order 9 Rule 13 by the respondents, herein, was rejected on its merits. While rejecting the application, the Trial Court has recorded the following findings :-

"परन्तु पत्रावली पर उपलब्ध कागज संख्या 97क जो प्रतिवादी संख्या 2 को भेजी गई रजिस्ट्री है, वह बताती है कि उक्त रजिस्ट्री उक्त रजिस्ट्री प्रार्थीगण के पिता द्वारा लेने से इंकार करने पर न्यायालय को दिनांक 2-4-86 को वापस प्राप्त हुई है। उक्त रजिस्ट्री प्रार्थीगण के इस बाता का खण्डन करती है कि उसके पिता को कभी कोई सूचना /समन/नोटिस प्राप्त नहीं हुआ था। पत्रावली प्रार्थीगण के पिता पृथ्वी सिंह का भी कोई शपथ पत्र नहीं है जो यह साबित कर सके कि वास्तव में उनके पिता को कोई सूचना प्राप्त नहीं हुई थी।

प्रार्थीगण द्वारा यह कथन किया गया है कि उनहें अफवाहन दिनांक 22-4-93 को गांव में एकपक्षीय डिक्री पारित होने की जानकारी प्राप्त हुई थी, जबकी पत्रावली के आदेश पत्रिका से स्पष्ट है कि दिनांक 29-4-86 को दोनों पक्ष न्यायालय में हाजिर थे तथा दिनांक 9-9-88 को विपक्षीगण द्वारा एतराज किया गया था दिनांक 4-4-89 को प्रतिवादी संख्या 2 पृथ्वी सिंह को र्निदशित किया गया था की वह अपन अतरिक्त जवाबदावा दाखिल करें। दिनांक 24-4-89 को न्यायालय द्वारा प्रर्थीगण के विरूद्ध एकपक्षीय कार्यवाही प्रारम्भ कि गई। न्यायालय द्वारा अपने निर्णय दिनांकित 8-5-89 कागज संख्या 105क में यह स्पष्ट लिखा है कि प्रार्थीगण दिनांक 24-4-89 को अनुपस्थित रहे, जिसके कारण वाद एकपक्षीय चला अर्थात उक्त दिनांक 24-4-89 के पहले प्रार्थीगण के पिता एंव अन्य प्रतिवादीगण उक्त मूलवाद संख्या 7/79 में उपस्थित हो रहे थे। उपरोक्त परिस्थितियों में प्रार्थीगण के इस कथन पर विश्वास करने को काई आधार नही है कि उनहें एकपक्षीय निर्णय एंव आदेश कि कोई जानकारी न हो। यह भी उल्लेखनीय है कि एक पक्षीय निर्णय दिनांक 8-05-89 को पारित हुआ, जिसके बाद प्रार्थीगण का कथन है कि उनहें दिनांक 24-4-93 को अफवाहन जानकारी हुई निर्णय के 4 साल बाद गांव में अफवाहन ही एकपक्षीय निर्णय होने की जानकारी की बात विश्वसनीय प्रतीत नहीं होती है। ऐसी स्थिति में प्रार्थीगण का प्रार्थना पत्र 4 ग निरस्त किये जाने योग्य है "

As already referred above, under the law as applicable as per the provision contained under CPC as against the rejection of an application under Order 9 Rule 13 of the C.P.C., the Revision would not be the remedy available under law, only the appeal would lie as per the provisions contained under Order 43 Rule 1(d) of the C.P.C. But the respondents seeking to set aside the rejection of Order 9 Rule 13 had preferred a Revision, which was registered as Civil Revision No. 51 of 2013, Anand Singh and other Vs. Mohabbat Singh and others before the Court of District Judge, Haridwar. The District Judge, Haridwar by the impugned order under challenge in the present Writ Petition, i.e. dated 4th March, 2014, had allowed the Revision and as a consequence thereto has set aside the order dated 3rd April, 2013 rejecting the application under Order 9 Rule 13 of the C.P.C.

It is this revisional order dated 04.03.2013 allowing Order 9 Rule 13 of the CPC, which has been put to challenge by the petitioner decree holder is on the grounds that the respondents despite of having putting in appearance prior to filing of the initial application for seeking to set aside the alleged ex parte order as back as on 4th May, 2005, the Revisional Court by the order impugned while setting aside the rejection of Order 9 Rule 13, had observed that as far as the earlier proceedings, which was held, they cannot be sustained for the reason that the judgment debtors/respondents were not noticed. But, this fact runs contrary to the finding which has been recorded in the ordersheet, on which, the reliance has been placed by the learned counsel for the petitioner, particularly, a reference is being made to page 83 of the writ petition of the said ordersheet, wherein, by an order dated 9th September, 1988, it was observed that the respondents have already put in appearance in the proceedings before the Court below and they have moved an application, paper No. 83 A-1 on 30.11.1988. Even as per finding recorded in the order dated 03.04.2013, both the parties have already appeared on 29.04.1986 and direction was issued to Prithivi Singh to file objection.

The learned counsel for the petitioner has further placed reliance and drawn the attention of this Court on the finding which has been recorded by the Trial Court on 8th May, 1989, wherein, yet again a finding has been recorded that the respondents had put in appearance and they were contesting the proceedings on merit by filing the application in opposition to the proceedings of execution sought for by the plaintiff/petitioner of the decree which was rendered as back as on 8th May, 1989. Order dated 8th May, 1989 reads as under :-

"8.5.89

संशोधन कर दिया गया अधिवक्ता वादी का प्रविदीगण न्यायालय उपस्थित नहीं आ रहे है। उनके विरूद्ध वादमें कार्यवाही एक पक्षीय चरण रहा है जिसके अधिवक्ता प्रतिवादीगण की ओर से कोई नहीं अया वाछित संशोधन वाद के स्वरूप को नहीं बदलता पुनः स्वीकृत किया जाता है संशोधन 105 क के अनुसार किया जाय।

वाद पेश हुआ बहस सुनी गयी निर्णय सुनाया गया।

आदेशश्

दावा में वर्णित मद प्र की सम्पत्ति के लिए वादी का वाद के बाबत विरूद्ध प्रतिवादीगण एक पक्षीय रूप से सव्यय प्रज्ञप्ति किया अतः तदनुसार प्रारंभिक डिकी्र बनायी।

The learned counsel for the petitioner has further drawn the attention of this Court to the order dated 16th April, 1987, in order to substantiate his pleadings to the effect that both the plaintiff and defendants had already appeared before the Court below and their appearance before the Court below duly finds place by way of an endorsement made by them on 7th May, 1987 in the ordersheet.

In view of the argument, which has been extended by the learned counsel for the petitioner from the view point of the provisions contained under Order 5 Rule 9 of the CPC to be read with Clause 27 of the General Clauses Act, the observations, which has been made in the ordersheet, it would show and prove beyond doubt that the defendants did had knowledge of the ex parte decree and despite of it, they have after filing of the application under Order 9 Rule 13, had consistently not participated in the proceedings and were not diligent as the same stood rejected cumulatively by the Court as many as five times from the date of the institution of the application, Misc. Case No. 47 of 1993, which was filed by the respondents on 23rd April, 1993.

It is too pathetic to observe that a Suit No. 7 of 1979 Mohabbat Singh Vs. Jhandu Singh, which was instituted by Mr. Mohabbat Singh for the purposes of partition and possession of the property in dispute, which stood decreed by virtue of the judgment and decree dated 8th May, 1989, was by one was or the other manner has been sought to be avoided to be executed at the behest of the respondents by filing one application, after another seeking recall of the order of the proceedings, which stood dismissed on account of their absence and lack of diligence in participating in the proceedings in placing their application under Order 9 Rule 13, had rather shown that they had kept the proceedings pending for one reason or another.

After having considered the rival contention and the conduct of the defendants, more particularly, in the light of the provisions contained under Order 5 Rule 9 to be read with Clause 27 of the General Clauses Act and the very fact that the application under Order 9 Rule 13 was filed by the heirs of the late Prathvi Singh, itself, shows that the respondents were not diligent in participating in the proceedings, which was initiated by them and, consequently, the finding which has been recorded by the Revisional Court pertaining to the effecting of service of notices on the respondents, seems to be perverse and contrary to the evidence and the documents, which has been brought on record and it would not be out of place to mention that the manner in which, the defendant had proceeded to participate in the proceedings was nothing but a deliberate mode to avoid the execution of the decree which was rendered as back as on 8th May, 1989. The finding, which has been recorded pertaining to the service of notice by the Revisional Court is not sustainable and based on misreading and not reading the ordersheet of Court below that Prathvi Singh, i.e. defendant No.2, when he was alive himself has put in appearance before the Court below.

When the Writ Petition was filed on 23rd May, 2014, by the petitioner, this Court had issued notices to the respondents, though at the time of argument for admission held on 27th May, 2014, the respondent No. 6 was represented through his counsel, but as per the finding which has been recorded in the entire ordersheet, it shows that despite of various opportunities being granted to the respondents to file counter affidavit, they have not filed the counter affidavit to deny averments made in the Writ Petition and even no denial has been made to the averment made in the Writ Petition as on date after about five years of filing of the Writ Petition, through respondent appeared as caveator. Consequently, in such type of a contingency, where there is a procedural defect, which could be said that it was intentional to delay the proceedings.

Consequently, in view of the ratio as laid down by the Hon'ble Apex Court in the case of Bir Singh Chauhan vs. State of Haryana and another as reported in (1997) SCC (L&S) 1447 in para 4, it has been held that in the light of the provisions contained under Section 114 (iii) (g) of the Indian Evidence Act, it provides that where the counter affidavit and the production of the record by the respondent when despite courts direction have not been filed the consequence which would follow would be that the pleading which has been raised by the parties in the suit before the Court below would be deemed to be admitted. Para 4 of the said judgment reads as under:

"4. We wanted to examine the record to ascertain whether there is any substantial case against the appellant. The respondents have neither filed counter nor produced the record. Under these circumstances, we are constrained to accept the case of the appellant that he is entitled to be considered for promotion under the Rules. We direct the Government to consider his case for promotion on the basis of his service record within four months from the receipt of this order. While doing so, the Government will exclude the material relating to his inspection report."

An identical view has been expressed by the Division Bench of Allahabad High Court in the case of M/S J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. The Collector, Kanpur and others as reported in [1999 (82) FLR 709], wherein the Division Bench too has laid down the same preposition in para 6 of the judgment which is quoted hereunder:

"6. In the absence of counter affidavit, the Court is left with no choice but to accept the averments made in the petition to be correct. Thus it is not in dispute that the petitioner is a sick Company and relevant proceeding qua it under Section 16 of the Act are going on. Sri Vinay Malaviya, learned Standing Counsel representing the respondents, very fairly, concedes that the petitioner being a sick Company as contemplated by the Act, the protection of Section 22 of the Act would be available to it and in view of the said protection, the impugned recovery cannot be effected against the petitioner."

In the said judgment it is held that in the absence of their being counter affidavit denying the averments of the writ petition, the averments made therein has to be accepted as to be true.

In yet another judgment as reported in AIR 1993 SC 2592, Smt. Naseem Bano vs. State of U.P. and others, the Hon'ble Apex Court in para 11 has held that in those contingencies in which the writ petition was filed and the counter affidavit has been called upon and the same has not been filed, it will amount that the averments remained uncontroverted and it has laid down that the High Court should proceed to decide that matter on its merit. Para 11 of the judgment as under:

"11. The aforesaid reply would show that on behalf of respondents 1 to 4, it was not disputed that 40 per cent posts which have to be filled up by promotion had not been filled up and the denial of promotion to the appellant was justified on the sole ground that she was not qualified to be promoted to L.T. grade. This shows that in the pleadings before the High Court, there was no contest on the question that the post of L.T. grade which was sanctioned on August 29, 1977 was required to be filled up by promotion for the reason that 40 per cent posts had not been so filled. Even though there was no contest on this question the High Court has gone into it and has held that the appellant has failed to establish her case that at the time of the appointment of respondent 6 by direct recruitment 40 per cent of the total number of posts in the College were not filled up by promotion as prescribed by Regulation 5(2)(a) of the Regulations. Since no dispute was raised on behalf of respondents 1 to 4 in their reply to the averments made by the appellant in the writ petition that 40 per cent of the total number of posts had not been filled by promotion, inasmuch as the said averments had not been controverted, the High Court should have proceeded on the basis that the said averments had been admitted by respondents."

An identical situation has arisen in the instant case where the respondent after putting in appearance as a caveator has not filed their counter affidavit for last over five years, considering the manner they have participated in the proceedings before Court below. Hence the averment so far it confines to propriety of the restoration application is concerned and its rejection by the court below and the cause of rejection and ground on which it has been put to challenge would be treated to be un-rebutted and true and the same has to be accepted by this court in the light of the ratio as propounded by the Hon'ble Apex Court.

Consequently, the order dated 4th March, 2014 is quashed and the order dated 3rd April, 2013, rejecting the application under Order 9 Rule 13 by way of Misc. Case No. 47 of 1993, Anand Singh and others Vs. Mohabbat Singh and Others is sustained. Consequently, the Writ Petition is allowed. The learned Trial Court is directed to ensure the execution of the decree, if not already made within a period of three months from the date of production of the certified copy of the order.

Hence, the Writ Petition is allowed and the impugned order is quashed. However, there would be no order as to costs.