Panchanan Ghanti & Ors vs M/s. Balaji Parking Plaza & Ors

Subhasis Dasgupta, J

Decree holder/landlord/plaintiff in connection with C.O. 4217 of 2018 challenged the order dated 13.11.2018 passed by the learned Civil Judge, Junior

Division, 6th Court at Howrah Misc. Case No. 275 of 2015 arising out of Title Suit No. 136 of 2007, allowing Section 5 application of the Limitation

Act, and thereby condoning the delay in filing Misc. Case No. 275 of 2015, wherein the ex parte decree passed on 12.06.13 was sought to be set aside

taking first and foremost ground of non-service of summons of suit.

JDR/defendant in connection with C.O. 4276 of 2018 assailed the order dated 3rd December, 2018, passed by the learned Civil Judge (Junior

Division) 6th Court, Howrah in Title Execution Case No.8 of 2014 arising out of Title Suit No.136 of 2007, fixing the stay application filed by JDR for

hearing, but without granting any interim order of stay, and thereby indirectly allowing execution case to go ahead.

The fight between the parties is over an eviction decree, passed ex parte on 12.06.13 in connection with a Title Suit No. 136 of 2007, passed by

learned Civil Judge (Junior Division) 6th Court Howrah, wherein eviction with prayer for recovery of possession was sought for.

Before addressing the points, raised by either of the parties to this case, some of salient facts, however, need mentioning here for appropriate

understanding of the matter in controversy between the parties.

The decree holder/plaintiff won the suit with an ex parte decree passed on 12.06.13, for the defendant/JDR, (who is petitioner in CO No.4276 of

2018) having not contested the suit, despite receiving summons. The ex parte decree was attempted to be put into execution by filing a Title Execution

Case being No.8 of 2014. The JDR/defendant, (petitioner in CO 4276 of 2018) filed an application praying for stay of proceedings of Execution case

alleging that no summons had been duly served upon the judgment debtor/defendant, and further sought to establish therein that JDR/defendant had

been prevented by sufficient causes from appearing before the court below, when the suit was ended in ex parte decree. It was further alleged by the

JDR/defendant that suppressing the service of summons, and also after entering into a conspiracy with the postal people, an ex parte decree was

obtained by the decree holder/plaintiff causing a serious prejudice to JDR/defendant preventing him from putting up his best and effective defence in

the original suit. As against this stand, the case of decree holder/plaintiff is that despite receipt of summons, the JDR/defendant purposefully and

deliberately stopped contesting the case by ensuring his presence, and the court below duly appreciated the situation accepting the service report,

evident from the A/D Card, dated 10.07.08, bearing signature of the JDR/defendant, and ultimately granted the ex parte decree.

According to JDR/defendant on 22.12.15 he had gathered knowledge of the ex parte decree, drawn against him, when decree holder being

accompanied by some antisocials came to the suit premises, and directed the JDR/defendant to quit the suit premises. Upon sensing such ex party

decree, said to have been passed against the JDR, immediate step was taken by getting in touch with learned advocate for ascertaining the

genuineness of the ex parte decree, and filed a Misc. Case being No.275 of 2015 on 23.12.15 under Order 9 Rule 13 read with Section 151 CPC

supported by separate application under Section 5 of the Limitation act praying for condonation of delay for setting aside the ex parte decree on the

basis of information obtained from searching report. In connection with a prayer for stay being taken out by the JDR/defendant for stalling the

execution proceedings, the learned Executing Court granted stay of all further proceedings of the execution case. Challenging the order dated 27the

October, 2017, passed by the learned Executing Court granting stay of the execution proceedings, the plaintiff/decree holder challenged the same in

connection with CO 1258 of 2018. When the stay order granted by the Executing Court was challenged in connection with CO No.1258 of 2018, the

JDR/defendant took recourse to Section 47 of the CPC which was registered as case No. 21 of 2016. The learned court below, however, refused to

grant any interim order of stay in connection with a proceeding under Section 47 of the CPC, but at the same time allowed the prayer for police help

with a direction upon baliff to take possession of the suit premises with the assistance of police help. The order dated 7th July, 2018, passed by the

learned court below refusing to grant interim stay of the execution proceedings and simultaneously allowing prayer for police help was subjected to

challenge by filing a revisional application by the JDR in connection with CO No. 2161 of 2018. Both the applications being CO. No.1258 OF 2018

(filed by decree holder) and CO No. 2161 of 2018 (filed by JDR) were hard together, and ultimately disposed of directing the learned court below to

hear out the Section 5 application afresh for condonation of delay.

The learned court below upon hearing afresh of the Section 5 application allowed the same, condoning the delay in filing the Misc. Case No. 275 of

2015.

After disposal of revisional applications bearing CO No. 2161 of 2018 and CO No.1258 of 2018, and for a change in the circumstances culminating

from the issuance of the order, passed by the Executing Court, for delivery of the possession, JDR/defendant No.2 moved an application again before

the Executing Court for staying the execution proceedings, even after loosing C.O. No. 2161 of 2018 arising out of Misc. Case No. 21 of 2016 under

Section 47 of the CPC, and when the learned court below proceeded to fix a date for hearing of such petition without granting any interim order of

stay.

The decree holder thus has challenged the order allowing Section 5 application thereby condoning the delay, while JDR/defendant has challenged the

order passed by the court below in connection with execution proceeding refusing to grant interim stay.

Learned advocate for the decree holder/plaintiff submitted that JDR/defendant had sufficient knowledge about institution of this case against him, and

despite receipt of the summons, as would be evident from the A/D card, dated 10.07.08, bearing signature of the defendant/JDR, the case as made

out by the JDR/defendant would be far from belief, and upon due consideration of the same, learned court below proceeded to decide the case ex

parte after accepting the satisfactory service, evident from A/D Card, and granted ex parte decree ultimately. Adverting to a copy of document, dated

24th July, 2003, which is lease deed, produced for the first time before this court, together with the A/D Card being purported signature of the

JDR/defendant, learned advocate for the decree holder sought to establish that it was the only address of the JDR/defendant, shown conspicuously in

the plaint, wherein service was made effective, and the denial regarding service of summons, as developed by the JDR/defendant in this case, was

nothing, but a ploy to frustrate the lawful decree, passed ex parte against him.

It was thus submitted by the learned advocate for the decree holder that in the lease deed, dated 24.07.03 when JDR/defendant himself furnished

voluntarily his address matching with that of the address of the JDR, as already furnished in the plaint itself, the presumption of service to be drawn

from the A/D card, dated 10.07.08, could not be doubted any more. Accordingly it was proposed by the learned advocate for the decree holder that

learned court below committed a gross illegality in holding that no summons had been duly served upon defendant without having understood the real

purport of the A/D Card bearing signature of the defendant/JDR. And accordingly condonation of delay with the aid of Section 5 application of

Limitation Act on the ground of non-service of summons was without the sanction of law.

Learned advocate for the JDR/defendant no.2 controverting the submissions raised by the decree holder most arduously submitted that in the absence

of a definite finding, reached by the court below, regarding satisfactory service of summons upon the defendant No.2, the court below ought not to

have persuaded the suit to be posted for ex parte hearing, that when it was the specific case of JDR/defendant no.2 disputing with the service of

summons, and thereby denying the signature of JDR, said to exist in the A/D card, dated 10.07.08, the presumption of service, as claimed by the

decree holder, would not be automatically drawn without examining the postal peon, who is stated to have served upon the defendant, and without

confronting the same to JDR/defendant No.2 in course of his adducing evidence before the court, that when JDR/defendant depicted his address

being ordinary resident of the address, shown in his application under Order 9 Rule 13 read with Section 5 of the Limitation Act, which the learned

court below duly appreciated the same from the three (3) documents, marked as Exhibits, A/D Card was obtained under a mysterious circumstances,

that when the court below proceeded to allow the Section 5 application after recording evidence therefor, the findings thus reached by the court below

regarding non-delivery of summons, while condoning delay, could not be disputed any more upon reappreciating the evidence in exercise of authority,

available under Article 227 of the Constitution of India, that when decree holder failed to adduce evidence in support of his stand, the decision reached

by the court below could not be altered, unless it is held that it was a perverse finding, not according to law, and reached without consideration of

material evidence, or such finding is an outcome of misreading of evidence.

The sole point raised by the JDR/defendant No.2 in this case is non-service of summons in the address, ordinarily held by the JDR, which is alleged to

be previously known to the decree holder, and such known address of defendant/JDR not having been furnished by the decree holder/plaintiff in the

plaint itself, the suit was ultimately ended in an ex party decree, for alleged suppression of address of JDR/defendant No.2.

The decree holder/plaintiff projected his case alleging that it was deliberate omission on the part of the JDR to appear in the suit, even after receiving

the summons, lawfully issued to him.

In year 2007 the suit was instituted. An ex parte decree was passed on 12.06.13. In T.S No. 136 of 2007 decree holder had taken a firm stand relying

on a AD Card, dated 10.07.08, bearing signature of the JDR in his endeavor to enforce presumption of service available against the JDR on the

strength of A/D Card, which the JDR/defendant disputed the same denying his signature. The record of Title Suit No. 136 of 2007 was thereafter

called for to take notice of such incidents.

Upon perusal of the lower court record, it appears that there is nothing mentioned in the order sheet regarding receipt of the A/D Card, and drawal of

presumption of service against the JDR/defendant No.2 before resorting to ex parte hearing. Admittedly the defendant No.1 suffered death, in this

case and accordingly his name was expunged from the plaint. Even after expunging the name of the defendant No.1, the plaintiff/decree holder was

directed to take fresh step against remaining defendant, which, however, remained uncomplied.

Upon a studied reading of order sheet of the lower court record, it is thus conspicuous that no finding was reached by the court below regarding

satisfactory service upon JDR/defendant No.2, on the basis of the A/D Card, dated 10.07.08 if any received back. Without recording a definite finding

regarding service of summons in terms of the provisions of the law, the learned court below proceeded to take up ex parte hearing without any

justifiable reasons. Mere production of the A/D Card bearing purported signature of the JDR/defendant would not automatically absolve the liability of

the decree holder/plaintiff from proving the same in evidence in a particular case, when the service was a disputed phenomenon denying even the

signature of the defendant/JDR on the A/D Card. In the given set of facts, the decree holder not only failed to adduce any evidence despite having

best opportunity therefor, but also did not take any step for sending the A/D Card to hand writing expart for comparison and report with the admitted

signature of the JDR in the interest of resolving the issue. The A/D Card being the purported signature of JDR/defendant, what has been specifically

denied, is thus shrouded with doubt.

Since the Executing Court below proceeded to grant an order of stay of the execution proceedings on the prayer of the JDR/defendant No.2, the

decree holder challenged the order dated 27th October, 2017 in connection with CO NO. 291 of 2018, which was ultimately disposed of directing the

court below to hear out the application for condonation of delay within a stipulated period of time. The learned court below disposed of Section 5

application of the Limitation Act and condoned the delay in effect. Against the order dated 11th April, 2018 passed by the learned court below

condoning the delay, decree holder moved the High Court in connection with CO No. 1258 of 2018, while JDR challenging the order of the Executing

Court refusing to grant stay in connection with an application under Section 47 of the CPC, registered as Misc. Case No.21 of 2016, took recourse to

CO No. 2161 of 2018. It is thus without any controversy that CO No. 2161 of 2018 (filed by the decree holder) was allowed directing the court below

to take up hearing of Section 5 application afresh and dispose of the same within a stipulated period of time, while CO No. 2161 of 2018(filed by the

JDR) was dismissed.

The court below upon collecting evidence of the witnesses allowed the application under Section 5 of the Limitation act and condoned the delay.

Upon perusal of the instant impugned order, it appears that the court below relied upon the voters identity card and Aadhar Card furnished by the

JDR, marked as “Exhibit’1†collectively caveat application filed by the decree holder recording address of JDR, marked as ‘Exihibit-2’

matching with the address, as furnished in the application under Order 9 Rule 13 read with Section 151 of the CPC, and application for condonation of

delay under Section 5 of the Limitation act, but not tallying with the address, as shown in the plaint together with the others, while making condonation

of delay. The evidentiary value of such exhibited documents could not be disputed by the decree holder/plaintiff by adducing satisfactory evidence.

The lease deed dated 24.7.03, produced for the first time before this court, even could not be produced before the Court below, while making

consideration of the prayer for condonation of delay. Such document not being produced before the Trial Court, the same cannot be considered by this

court being not produced for the first time before the Trial Court.

Regarding the scope and extent of authority, while making exercise of power available under Section 227 of the Constitution, learned advocate for the

JDR submitted relying on a decision reported in (2010) 9 SCC 385 delivered in the case of Jai Singh and Ors. vs. Municipal Corporation of Delhi and

Anr. that the exercise of jurisdiction under Article 227 of the Constitution of India was basically to correct all errors, if any found in the judgment or

order of a court or tribunal, subordinate to High Court, and such correctional jurisdiction could be exercised in cases, where orders had been passed by

the court below in grave dereliction of duty or any flagrant abuse of the fundamental principles of law or justice.

The JDR/defendant had taken further shelter to a decision reported in (2014) 9 SCC 78 delivered in Hindustan Petroleum Corporation Limited vs.

Dilbahar Singh in order to establish that a finding of fact already reached by the court below not being perverse, not being an out come of misreading

of evidence, or non-consideration of material evidence, would not be subjected to open for correction.

In the case of Hindustan Petroleum Corporation Limited (supra) decided by Larger Bench comprising of five (5) Judges of the Apex Court, the

decisions of Rukmini Amma Saradamma vs. Kallyani Sulochana reported in (1993) 1 SCC 499 and Ram Dass vs. Ishwar Chander reported in (1998)

3 SCC 131 were considered and Apex Court thereafter proceeded to ratify the view regarding observation, made in the case of Ram Dass (supra)

that High Court can interfere with incorrect finding of fact, must be understood in the context, where such finding is perverse based on no evidence, or

misreading of the evidence, or such finding has been arrived at by ignoring, or over looking the material evidence or such finding is so grossly illegal,

that if allowed to stand, will occasion miscarriage of justice. It was thus held in the case of Hindustan Petroleum Corporation Limited (supra) that the

ratio decided in the case of Ram Dass(supra) was not on different principles, what only emphasis that in dealing with the finding by High Court, it is

limited to satisfy itself that the decision is according to law. The scope of reappreciation of the evidence already considered by the court below, while

arriving at a finding, has thus been discouraged.

In the decision reported in (2016) 9 SCC 414 delivered in Gulshera Khanam vs. Aftab Ahmad as referred by the learend advocate for the JDR,

wherein the ratio decided in the case of Hindustan Petroleum Corporation Limited (supra) was considered, and the Apex court held that in the name

of examining the legality, correctness or propriety of the order, there is no scope to reappreciate or reassess the evidence for coming to different

findings on facts. The same principle was considered in the decision reported in (2018) 11 SCC 208 delivered in Dr. Kazimunnisa (dead) by Legal

Representative vs. Zakia Sultana (dead) by legal Representative & Ors. wherein the scope of reappreciation of evidence was highly discouraged

while exercising authority under Article 227 of the Constitution of India.

The decree holder besides the A/D Card, had nothing to establish that the findings reached by the court below was an outcome of irrelevant

consideration of the materials, and non-consideration of material evidence. As has already discussed, that the court below while making consideration

of the prayer for condonation of delay under Section 5 of the Limitation Act considered the evidence, adduced by the JDR/defendant and came to a

definite finding that summons of the original suit had not been duly served upon the JDR/defendant, and such findings being based on lawful

appreciation of evidence, so the order of the court below allowing condonation of delay thus cannot be allowed to be doubted as proposed by the

decree holder. There left nothing to reveal perversity in the impugned order allowing Section 5 application. The discretion exercised by the learned

court below, while making condonation of delay, being judiciously and most reasonably exercised, the same cannot be described to have exercised in a

whimsical and arbitrary manner.

The decisions, referred above, have their significant application in the given set of facts.

Though learned court below, while making consideration of the prayer for condonation of delay under Section 5 of the Limitation Act apparently

looked to have gone deep into the problem pertaining to the non-service of summons, but such approach of the court below would not be a subject of

criticism on the simple ground that the entire defence of JDR/defendant being rested on the solitary ground of non-service of summons in the original

suit. The point of consideration, available under Section 5 of the Limitation Act is indeed different than that of the principles necessary for

consideration under Order 9 Rule 13 CPC.

In the result revisional application in connection with CO No. 4217 of 2018 fails being without any merits. The findings reached by the court below,

while making condonation of delay being based on evidence must go unaltered. The order impugned dated 13.11.18 passed by the learned Civil Judge,

Junior Division, 6th Court at Howrah Misc. Case No. 275 of 2015 arising out of Title Suit No. 136 of 2007, allowing Section 5 application of Limitation

Act and thereby condoning the delay would remain uninterefered with.

Learned Civil Judge, Junior Division, 6th Court at Howrah is directed to go ahead with Misc. Case No. 275 of 2015, registered under Order 9 Rule 13

read with Section 151 CPC, and decide the case independently in accordance with law giving sufficient opportunity of hearing to either of the parties

to this case, without being untrammeled by the observations, made in the body of this judgment.

The significant fact is that for refusal of prayer for interim stay in connection with Misc. Case No. 21 of 2016 under Section 47 of the CPC, the

judgment debtor proceeded to challenge the same in CO 2161 of 2018, which was ultimately dismissed. It was at this juncture, with the expiry of the

order grating stay of execution proceedings in connection with CO No. 1258 of 2018 passed on 2nd August, 2018, a petition was taken out by the

JDR/defendant for staying the execution proceedings, which was not even considered by granting any interim stay of the execution proceedings, and

in consequence thereof, the JDR/defendant challenged the same in connection with CO NO. 4217 of 2018.

Upon perusal of the impugned order it appears that learned court below proceeded to fix a date for hearing of the application dated 3.12.18 filed by

JDR praying for stay of the execution proceedings together with prayer for interim stay.

Since the learned court below upon hearing afresh, pursuant to the direction passed by Coordinate Bench in CO No.1258 of 2018, allowed the

application under Section 5 of the Limitation Act, and thereby condoning the delay, which has been affirmed in CO. No 4217 on 2018 directing the

learned court below to go ahead with the Misc. Case No. 275 of 2015 registered under Order 9 Rule 13 read with Section 151 CPC filed by the JDR,

some sort of protection by way of granting stay is felt necessary till the disposal of Misc. Case of 275 of 2015.

Let the execution proceedings in connection with Title Execution Case No.8 of 2014 be stayed till the disposal of Misc. Case No. 275 of 2015.

The revisional application being No. 4276 of 2018 is thus disposed of with such direction and observation.

There shall, however, be no order as to costs.

Let the lower court record be sent down to the court below forthwith by Special Messenger of this court, the costs of which shal be deposited by

JDR/defendant No.2 immediately.

Parties are given liberty to make communication of this order to the learned court below.

Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary

formalities.