Murari Lal and Others vs Devmurti Jain Samaj Rajgarh and Others

Alok Sharma, J—The petitioners-defendants (hereinafter the defendants'') have challenged the order dated 8-11-2006 passed by the Civil Judge (Junior Division) Rajgarh in Civil Misc. Case No. 27/1998 dismissing their application under Order 9 Rule 13 CPC as also the affirming order dated 10-5-2013 in Appeal passed by the Additional District Judge Ragarh, District Alwar.

The facts of the case are that the respondent-plaintiff (hereinafter the plaintiff) on 23-10-1990 filed a suit for eviction and recover of arrears of rent. It was averred that as per rent-note, the defendants on 1-12-1988 were allowed to put up a kiosk on the plaintiffs land described in the suit on the agreed rent of Rs. 200/- per month. The rent was paid till 31-10-1989 by the defendants but not thereafter till 30-9-1990 and who was at the relevant time in arrears of rent to an extent of Rs. 2200/-. Further contrary to the rent note, the defendants had constructed a "pucca" shop on the site without the plaintiff''s permission bringing about material alteration of the tenanted premises. Subletting was also alleged to one Ram Khiladi Meena with the defendants themselves parting with possession of the tenanted premises. Eviction of the defendants was thus prayed for. On service of summons, the defendants filed their written statement of denial. Issues were framed on the pleadings of the parties. The defendants and their counsel thereafter not being present in court when the case was called out on 6-1-1998, proceedings were drawn ex-parte against them. One witness for the plaintiff was examined and three documents exhibited being the rent-note, notice to quit and AD receipt thereof. No evidence was laid for the defendants as they were ex-parte as of 6-1-1998.

The plaintiff''s suit was then decreed vide judgment and decree dated 17-1-1998 and the defendants ordered to hand over possession to the plaintiff within two months and pay Rs. 19,600/- as arrears of rent plus further rent till the date of handing over possession.

On 13-5-1998 the defendants moved an application under Order 9 Rule 13 CPC for setting aside ex-parte decree dated 17-1-1998 claiming the knowledge of the same only on 25-4-1998 on receipt of notice under Order 21 Rule 22 CPC, this despite being served, engaging an advocate and filing written statement.

After hearing counsel for the parties, the trial court vide order dated 8-11-2006 dismissed the defendants'' application under Order 9 Rule 13 CPC treating the same to be beyond limitation and the defendants not having filed any application under Section 5 of the Limitation Act, 1963 for condonation of delay. The appeal filed by the defendants against the order dated 8-11-2006 of dismissal of the application under Order 9 Rule 13 CPC, was also dismissed vide order dated 10-5-2013. Hence this petition.

Heard counsel for the defendants and perused the impugned order passed by the trial court.

Counsel for the defendants has relied upon judgment of Delhi High Court in the case of Universal Builders & Contractors Vs. Sheila Singh Uppal & Others, Civil Revision Petition No. 321/2004 decided on 17-10-2008 to contend that filing of an application under Section 5 of the Limitation Act is not necessary for condoning the delay if the applicant otherwise satisfies the court from the application under Order 9 rule 13 CPC itself of the reason not moving the court within the prescribed period. Reliance has also been placed on (1) Unniraman Vs. Padmanabhan and Another, AIR 1988 Ker 257 , (2) Malkiat Singh and Another Vs. Joginder Singh and Others, AIR 1997 SC 4229 : (1997) 3 CTC 619 : (1997) 9 JT 642 : (1998) 118 PLR 271 : (1997) 7 SCALE 398 : (1998) 2 SCC 206 : (1997) 6 SCR 139 Supp : (1998) 1 UJ 200 , and (3) Bhagmal and Others Vs. Kunwar Lal and Others, AIR 2010 SC 2991 : (2010) 7 JT 597 : (2010) 7 SCALE 490 : (2010) 12 SCC 159 : (2010) 8 SCR 1104 : (2010) AIRSCW 4799 : (2010) 6 Supreme 7 . It has been submitted that the defendants'' Advocate had been derelict in his duty and did not keep the defendants informed of the proceedings owing to which the defendants had sufficient cause for non appearance when the ex-parte decree was passed. It was submitted that the defendants had been at the relevant time, away from the town for earning their livelihood and hence had a sufficient cause also for this reason for setting aside the ex-parte decree dated 17-1-1998.

Heard. Considered.

What is fatal to the defendants'' case is that despite service whereupon they appeared before the trial court through an Advocate and filed a written statement, the trial was effectively abandoned by them when neither they, nor their advocate appeared on 6-1-1998. Ex-parte proceedings in the trial was then the unavoidable consequence. An ex-parte decree inevitably followed on 17-1-1998. Thereafter an application under Order 9 Rule 13 CPC was filed on 13-5-1998, much beyond the 30 days limitation under Article 123 of the Limitation Act, 1963. No application for condonation of delay was filed.

I do not find any force in the contention of the petitioners'' counsel that from the facts averred in the Order 9 Rule 13 CPC application, the trial court ought to have found reason for the delay in filing the Order 9 Rule 13 CPC application and exercised its power under Section 5 of the Limitation Act suo moto in the interest of justice as procedure is a mere handmaiden of justice and not a suffocating technicality-for this submission reliance has been placed on the judgment of the Hon''ble Apex Court in case of Bhagmal Vs. Kunwar Lal (supra). The reason for negating the said contentions however are many. The case of Bhagmal (supra) was one which turned on its own facts. Therein the defendant did not attend court, nor did his counsel, comfortable in the belief that the dispute before the trial court was in the process of being amicably resolved as agreed with the plaintiff. Instead an ex-parte decree had followed. The Hon''ble Supreme Court noted that the court below had from the facts on record found verification of the facts of a potential compromise/settlement lulling the defendant into lethargy and abandoning court proceedings. The High Court had however without good cause set aside the restoration of the suit and dismissed the application under Order 9 Rule 13 CPC for reason of its not being accompanied by an application for condonation of delay. The Hon''ble Apex Court in the factual scenario before it held that a good cause having been set out in the application under Order 9 Rule 13 CPC for setting aside the ex-parte decree which was also explanatory of the delay in approaching the court (as those facts were common for condonation of delay) delay in moving an Order 9 Rule 13 CPC application could be condoned by the court suo moto. And it was so done to the benefit of the judgment debtor.

The facts of the present case are wholly different. For one, the trial court and the appellate court have not found that the facts pleaded in the Order 9 Rule 13 CPC application were explanatory of "sufficient cause" for the absence of the defendants when the matter was decreed ex-parte on 17-1-1998. Far from it the petitioner in his application under Order 9 Rule 13 CPC had stated that his counsel had pleaded "no instructions". This is not borne out from the order-sheets of the trial court. The foundation of the application under Order 9 Rule 13 CPC was thus false. This also for the reason that the "sufficient cause" for the absence given out was leaving the city for livelihood. No particulars as to the dates/period of alleged absence were given nor the city to which the defendants went to earn livelihood named. It is further noteworthy the defendants are tenants in the rent premises running a shop and their case of leaving the city in search of livelihood has a ring of falsity. In the circumstances the equity in the case of Bhagmal (supra) is absent in the case at hand, as are the facts to make out a case of "sufficient cause" for the defendants'' absence when the case was called for hearing and made ex-parte resulting in the ex-parte decree dated 17-1-1998. Further Article 123 of the Limitation Act states that where a defendant is served, limitation for setting aside an ex-parte decree would be 30 days from the date of the decree. The petitioners-defendants were served and filed a written statement. They thus cannot claim limitation from the date of knowledge of the decree allegedly on 25-4-1998. Similarly the judgments in the cases of Malkiat Singh (Supra) and Unniraman (Supra) are different from the factual scenario of the present case and they are not applicable.

In the circumstances when the application under Order 9 Rule 13 CPC was filed on 13-5-1998 for it to be maintainable it ought to have been accompanied by an application for condonation of delay under Section 5 of the Limitation Act. It was not. The Hon''ble Supreme court in the case of Sneh Gupta Vs. Devi Sarup and Others, (2009) 2 JT 641 : (2009) 6 SCC 194 : (2009) 2 SCR 553 has held:-

"In absence of any application for condonation of delay, the court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree".

In the facts of the case and applicable law, nothing perverse or illegal can be attributed to the orders dated 8-11-2006 and 10-5-2013 passed by the trial court and appellate court respectively.

In the circumstances, I find no merit in this petition under Article 227 of the Constitution of India. Dismissed.