Ramesh Chand Pathak vs Manikchand Jain and Others

R.C. Lahoti, J.

This order shall govern the disposal of Misc. Petition No. 436/91 also, the two petitions arising out of the same judicial proceedings though filed by different sets of Defendants.

As we are not called upon to enter into the questions of facts and also not to resolve any issue touching the rights of the parties in the original proceeding but are required to adjudicate upon legal issues only relating to the maintainability of as application under Order 9. Rule 13 Code of CPC as also of an appeal, the facts relevant to those questions only are being noticed hereinafter.

The Plaintiff/Respondents No. 1 and 2 filed a civil suit seeking declaration of title and recovery of possession over a piece of land. There were 7 Defendants in all. The suit which was originally pending in the Court of 3rd Civil Judge Class-2, Gwalior registered as C.O.S. No. 103A/79, came to be transferred to the Court of 2nd Civil judge Class-1, Gwalior renumbered as Civil Original Suit No. 84A/85 under orders of the District Judge passed on the administrative side on 25-10-85. There is a dispute on the point as to whether the Defendants were noticed to appear before the transferee Court or not and whether they appeared thereat or not but that aspect need not detain us any longer. The fact remains that on 17-4-86, the transferee Court passed a decree exparte against all the Defendants sustaining the claim of the Plaintiff

It appears that Jwala Prasad, the original Defendant had expired in between and in his place Prabhu Dayal, Shantidevi, Ramswarup, Suresh Chand, Omprakash, Munnalal and Brajmohan had been brought on record, substituted as the legal representatives, who are all Petitioners in M. P. No. 436/91. These Petitioners shall hereafter be referred as ''L Rs. of Jwala Prasad" for the sake of brevity. They moved an application on 18-8-87 u/O. 9. R 13 Code of CPC seeking setting aside of the exparte decree. The application was registered as M.J.C. No. 3/87 before the 2nd Civil Judge Class-1 Gwalior. By order dated 4-4-89, the application has been directed to be dismissed without holding an enquiry into the merits, and upholding the objection preferred on behalf of the Plaintiff/Non Petitioner submitting that the same decree having been the subject matter of an appeal (as will be noticed in the succeeding para) was not maintainable. The order dated 4.4.89 (annexure P/1) rejecting the application as not maintainable, has been upheld by the District Court in Civil Revision No. 47/89 vide order dated 6-2-91 (annexure P/2). Both these orders are under challenge in M P. No 436/91. Let it be noted that Rameshchandra Pathak, the Petitioner in M P. No, 245/89 was not one of the applicants seeking setting aside of the decree.

Aggrieved by the exparte decree dated 17-4-86 Rameshchandra Pathak, the original Defendant No 7 preferred an appeal u/s 96 Code of CPC before the District Court. The appeal was filed on 9-9-86. Admittedly, it was barred by time.

Misfortune never comes alone: the proverb finds demonstration in the narration of facts as contained in the application u/s 5 of the Limitation Act filed in the appeal preferred by Rameshchandra Pathak. The application states that the Defendant/applicants did not have any notice of the transfer of the case made by the District Judge; that he or his counsel never appeared in the transferee Court that he learnt about the passing of the decree during summer vacation; that no sooner he gathered the knowledge he filed an application for securing certified copies of the exparte judgment and decree on 5-6-86, the copies were delivered on 9-9-86, the counsel drafted the memo of appeal and gave it to the typist Shri Omprakash Sharma. He carried out the typing work in the Court promises at his usual place of sitting and when he had for a moment gone to take water, some one behind his back stole away the certified copies. Once again, an application for securing certified copies was filed on 11-9-86. The appeal itself was presented to the District Court though unaccompanied by the certified copies of the judgment and decree appealed against but accompanied by an application seeking time for production of the certified copies. Fresh copies were secured on 3-1-87 and filed in the Court on the same day. The application u/s 5 of the Limitation Act sought for condonation of the delay in preferring the appeal on the act of facts already noticed and relied on by the Petitioner as making out a sufficient cause for the delay in, preferring the appeal.

The appellate Court conducted an inquiry into the facts staled in the application u/s 5 of the Limitation Act. which were controverted by the Plaintiff/Respondents. Vide order dated 21-11-88 the appealate Court found that the facts stated in the application were not substantiated from the evidence and hence there was no sufficient cause for prefering the appeal beyond the prescribed period of limitation. The delay having been refused to be condoned, the appeal itself was dismissed as barred by time.

As already noticed this rejection of the appeal preferred by Rameshchandra Pathak and Vidhyawati (original Defendants No. 5 and 6 in the suit) has been applied as bar by the trial Court to the maintainability of application u/O. 9, R. 13 CPC. Let it also be noted here itself that none of the applicants in the application u/O. 9, R. 13 Code of CPC (who were the L. Rs. of late Jwala Prasad) had joined as Appellants in the appeal preferred by Rameshchandra Pathak and others, though they were joined as proforma Respondents.

Two questions arise for determination in this petition:

(I) Whether in the facts and circumstances of the case the factum of the exparte judgment and decree dated 17-4-86 having become the subject matter of Civil Appeal No. 10A/86 preferred by Defendants No. 6, 7 and 8 would bar the maintainability of application u/O. 9 R. 13 Code of CPC at the instance of the L. Rs. of Jwala Prasad, the Defendant No. 1 ?

(II) Whether in the facts and circumstances of the case, the appellate Court was justified in dismissing the Civil Appeal No. 10A/86 as barred by time and not allowing the application u/s 5 of the Limitation Act ?

Question No (I)

Order 9, Rule 13 Code of CPC reads as under:

Setting aside decree exparte against Defendant:-In any case in which a decree is passed ex-parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such Defendant only it may be set aside as against all or any of the other Defendants also:

(Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the Defendant had notice of the date of hearing and had sufficient time to appear and answer the Plaintiff''s claim.)

(Explanation - Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the Appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decreee).

It is the explanation appended to the provision as interpreted by the apex Court in Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury, which has been implicitly and forcefully relied on before us by the learned Counsel for the Plaintiff/Respondents to support the impugned orders just as has been done by the two Courts below.

The learned Counsel for the Petitioner has submitted placing reliance on Ajit Singh and Anr. v. Bhagwanlal Master and Ors. 1989 MPLJ 6 and Kher Singh v. Phoolchand 1981 JLJ SN 5 that where an appeal against an exparte decree is dismissed as barred by time consequent to the application u/s 5 of the Limitation Act having been rejected, there would be no appeal before the Appellant Court in the eye of law and there would be no merger of the decree of the trial court into that of the appellate Court and as such the explanation to Order 9 Rule 13 Code of CPC would have no application which, in the submission of the learned Counsel for the Petitioner would have application only to a case where an appellate Court having been ceased of a valid appeal proceeds to decide the same on merits resulting in merger of the trial Court''s decree into the appellate Court''s decree. We need not much dwel upon the point in as much as the issue is no more res integra and stands concluded by the law laid down by their Lordiships in Rani Choudhary''s case (supra) Their Lordships have held that the doctrine of merger does not have any significance for the purpose of the explanation aforesaid, which speaks only of the disposal of an appeal by the appellate Court on any ground otherwise than by way of withdrawal. Vide para 1(sic), their Lordiships have held that the disposal of an appeal may take any of the following modes:

(i) Disposal after proper hearing on merits as is usually the normal way of disposal of an appeal,

(ii) Disposal for non-prosecution of appeal;

(iii) Dismissal on ground of limitation consequent to the cond nation of delay being not allowed;

(iv) Dismissal for non-compliance with any condition relating to the filing of the appeal or for other reasons.

(v) Withdrawal of the appeal by the Appellant.

Their Lordships further proceeded to held that the language used in the explanation makes it clear that the withdrawal of an appeal is considered to be disposal of the appeal for the purpose of the explanation though in such a case no merits of the appeal are adjudicated upon. Their Lordships then have concluded by holding that the legislature in its wisdom has thought fit to provide in the explanation that only when an appeal against an exparte decree is disposed of on the ground that the Appellant has withdrawn the appeal, the bar created to the maintainability of an application u/o. , R. 1 of the Code for setting aside exparte dec(sic)ee will not applied. Vide para 3 their Lordships have held that the withdrawal of the appeal tantamounts to effacing it, the object behind enacting the explanation being to discourage two pronged attack on the decree and to confine the defendent to a single course of action. In short, the ratio of Rani Choudhary''s case (supra) is that of Defendant/Appellant has chosen not to withdraw the appeal against the exparte decree but to have it dismissed as barred by time or in any one of the other four modes he would lose his right to prosecute the application u/ Order 9 R 13 CPC. This is without regard to the cosideration whether the dismissal of an appeal as barred by time causes or does not cause merger of the that court''s decree into the appellate court''s decree.

The question still remains as to whether the explanation would debar the maintainability of application u/O. 9, R. 13 CPC, by such Defendants as had chosen not to prefer the appeal This issue stands concluded by the apex Court in Kewal Ram Vs. Smt. Ram Lubhai and Others, Their Lordships have held:

When a decree of the trial Court is either confirmed, modified or reversed by the Appellants decree, except when the decree is passed without notice to the parties, the trial Court decree gets merged in the appellate decree. But when the decree is passed without notice to a party, that decree will not, in law, be a decree to which he is a party. Equally so is the case of an appellate decree. In the instant case two persons were not served in the suit. A decree was passed ex-parte against them without giving them notice of the suit. In law, therefore, there is no decree against them. In the appeal also they were not served That being so, there is on bar for an application by them before the trial Court under 0.9 R 13, to set aside the exparte decree against them.

Even otherwise it is clear that the bar enacted by the explanation to Order 9, R. 13 CPC, as the language of the explanation itself indicates, would apply only to him withwhom laid the right or discretion of withdrawing the appeal. It would be too much stretching language of the explanation and would also be contradiction in terms if it were to be held that the explanation would stigmatise right to move an application u/O. 9 R. 13 Code of CPC of a Defendant who has neither preferred an appeal nor could have withdrawn it. We are, therefore, unhesitatingly of the opinion that the trial Court did commit a a jurisdictional error in dismissing as not maintainable the application u/O. 9 1. R. 13 Code of CPC preferred by the L. Rs. of Jwala Prasad. The trial Court has misunderstood the law laid down by the Apex Court in Rani Choudhary''s case (supra). The trial Court overlooked the fact that in Rani Choudhary''s case there v. as a single Defendant pursuing the remedy of application u/O. 9, R. 13 Code of CPC on his own appeal against the same decree having been dismissed as barred by time. What would be the position if there were more Defendants than one: one have having preferred the appeal legitimately dismissed as barred by time and the other having chosen to take and persue the remedy u/O 9 R. 13 CPC, was not a case arising for decision before their Lordships in Rani Choudhary''s case.

The judicial pronouncements have constantly recognised the right of one of the co-Defendants moving an application of the Court setting aside the entire decree, even as against the non-challenging Defendants, if the decree be joint and indivisible, where setting aside of the decree in part would not meet the ends of justice and would rather result in incongruity (See Kewal Ram Vs. Smt. Ram Lubhai and Others, and Bank of India v. Mehta Brothers and others AIR 1991 Delhi 194

For the foregoing reasons, the impugned orders (annexures P/1 and P/2) respective da ed 4-4-89 and 6-2-91 in Misc. Petition No. 436/91 are unsustainable under the law and deserve to be set aside.

Question No. (II)

The law governing the approach to be adopted by Courts of law while dealing with applications u/s 5 of the Limitation Act is now more or less settled by several pronouncements of the Apex Court. The approach has to be liberal. Nothing short of contumacy, gross misconduct or deliberate inaction would deprive a litigant of securing adjudication on merits at the hands of the Courts of law. In the leading authority of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, their Lordships have emphasized the need of the expression sufficient cause receiving a liberal meaning with the touch of elasticity in a meaningful manner so as to subserve the ends of justice. Their Lordships have held:

''The legislature has conferred the power to condone delay by enacting S. 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ''merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message dots not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

Ordinarily a litigant does not stand to benefit by lodging an appealla(sic)e.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State'' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the ''State'' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing on-the-buck eithos. delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grate statues. The Courts therefore have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the and in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits.

Now, the facts and the relevant dates in the back ground of which the appeal preferred by Rameshchandra Pathak has been held to be time barred may be noticed. The impugned judgment and decree were passed on 17-4-1986. The Petitioner gathered the knowledge of the exparte decree having been passed on 5-6-1986 and moved an application for obtaining the certified copies on that very day. The copies were delivered on 8-9-1986. On the same day. when the appeal was being typed by Omprakash Sharma, the Typist-Clerk in the Court premises, the copies were lost or stolen sway from his table. Nevertheless, the appeal was filed seeking time for production of the copies. On 11-9-1986, the certified copies were applied for afresh. The copies were secured and filed before the appellate Court on 3-1-1987. The appellate Court has refused to condone the delay u/s 6 of the Limitation Act for two reasons: firstly, it cannot be said that the Petitioner had no knowledge of the date 17-4-1986 on which the impugned judgment and decree were passed; secondly, the time appointed for securing the certified copies was 7-7-1986 while the copies were ready on 30-6-1986 and if the Petitioner did not appear on 7-7-1986 and instead appeared on 8-9-1986 to take the copies, the time between 7-7-1986 and 8-9-1986 was not entitled to be excluded from limitation u/s 12 of the Limitation Act, 1963.

In support of the several averments made in the application u/s 5 Limitation Act, the Petitioner examined himself and Omprakash Sharma Typist. Their statements do have a ring of truth inasmuch as the appeal was ready for filing on 8 9 1986 and was actually filed. The Petitioner made a prayer seeking time for production of certified copies stating that the copies which were earlier obtained had been lost in the stated circumstances. If only the copies would not have been lost, assuming that they were not stolen away by any one adversely interested, the Petitioner or the Clerk were not going to gain anything by taking a false plea if the set of certified copies was not actually lost. In fact the appellate Court also has not disbelieved that part of the story.

Whether or not, the Appellants had the notice of the date of the delivery of the impugned judgment and decree, depends on the proof of their knowledge of the case having been transferred by the District Judge on the administrative side. The appellate Court has held that one or two order-sheets before the transferee Court record the appearance of the counsel for the Appellants and that statement in the order-sheet being conclusive was not capable of being rebutted though the fact has been seriously disputed. There is no dispute that the District Judge before or after directing the transfer had not noticed the Defendants (i.e. the Appellants). It is also not disputed that even the transferee Court had not noticed the Defendants informing of the factum of transfer and the date appointed by the transferee Court for appearance of the parties. In view of that fact, it is not necessary to examine the legal question whether the District Judge ought to have noticed the parties while ordering the transfer of the case. The fact remains that the factum of transfer of the case to a new Court was not officially intimated to the Defendant Appellants. We also do not propose to made any observation on the veracity of the statement recorded in the order-sheet that the counsel had made appearance before the transferee Court because we find that the statement of the Petitioner/Appellant is invalnerable and trustworthy on the point that at least he had no knowledge of the case having been transferred to a new Court. Assuming for a moment (without holding so) that the counsel Shri D.K.. Katare had appeared before the transferee Court, the fact would remain that even he had not informed his clients of the factum of the transfer. In such circumstances, we cannot impute the Petitioner/Appellant with any knowledge of the factum of transfer and the date of exparte judgment appointed by the transferee Court. In our opinion, the appellate Court should have proceeded on an assumption that the date of judgment and decree was not known to the Defendant/Appellants before it.

As to the period of time which ought to be excluded u/s 12 of the Limitation Act, it is clear that the process of copying was completed by 30-6-1986 meaning thereby that there was no default on the part of the applicant in furnishing the particulars and depositing the copying charges. Rule 492 of the M.P. Civil Courts Rules, 1961, requires that when copies are ready they shall have to be signed by way of attestation by the Head Copyist. The copies cannot be said to have been ready until they were so signed. If the copies were signed and delivered on 8-9-1986 it cannot be said that the copies were ready on 30-6-1986. In our opinion, time till 8-9-1986 was entitled to be excluded from calculating the period of limitation u/s 12 of the Limitation Act

We are aware of the limitation on the exercise of our supervisory jurisdiction under Article 227 of the Constitution. We would not interfere with the questions of fact merely because we may be inclined to take a view different from that of the Court of facts. However, we cannot refuse to interfere and rather we are obliged to interfere when we find that erroneous assumptions on facts or law or hyper-sensitivity or too much regard for technicalities is coming in the way of justice, and in a litigation seriously fought, a litigant is being unjustly denied an opportunity of hearing on merits. The cases at hand are such cases. We have to hold the law laid down by the Apex Court as beacon light and remind ourselves that Judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. (Mst. Katiji''s case, supra).

For the foregoing reasons, both the petitions deserve to be allowed and are hereby allowed in terms of the following directions:

(i) M.P. No. 245/89 is allowed. The order dated 21-11-1988 in Civil Appeal No. 10A/86 passed by 5th Addl. Judge to the Court of District Judge, Gwalior-annexure P/13 (impugned in M. P. No. 245/89) is set aside, The appeal filed by the Petitioner Rameshchandra Pathak and two others is held to have been filed within the period of limitation, condoning the delay in preferring the appeal as founded on sufficient cause in exercise of the powers conferred by Section 5 of the Limitation Act, 196(sic) the appellate Court shall hear and dispose of the appeal on merits.

(ii) M.P. No. 436/91 is allowed. The impugned order dated 4-4-1989 passed in M. J. C. 3/87 by Second Civil Judge. Class-1 , Gwalior (annexure P/1) and the order dated 6-2-1991 in O. R. No. 40/89 passed by the Sixth Addl Judge to the Court of District Judge, Gwalior (impugned in M.P. No. 436/91) are set aside. The trial Court is directed to hold the application under Order 9 Rule 13 Code of CPC filed by Prabhudayal Pathak and six others as maintainable and to hear and dispose of the same in accordance with law.

Care shall have to be taken to avoid the possibility of conflicting orders coming into existence. The application u/O. 9, R. 13 CPC, filed by Prabhudayal Pathak and six others would require investigation and in the event of it being allowed, C.A. No. 10A/6 would be rendered infructuous. In the peculiar facts and circumstances of this case, we direct that hearing and decision of C.A. No. 10A/(sic)6 by 5th Additional Judge to the Court of District Judge, Gwalior shall be postponed until the hearing and disposal of M.J.C. No. 3/87 by the Court of Second Additional Judge to the Court of Civil Judge Class 1, Gwalior.

Costs shall be borne by the parties as incurred in both the petitions. Counsel''s fee as per schedule if pre-certified. One copy of the order shall be placed on the record of M.P. No, 436/91.