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Judgment
[1]Â Heard Shri R.T. Anthony, the learned Counsel for the petitioners and Shri Amol D. Patil, the learned Counsel for the respondent.
[2] Rule. Rule made returnable forthwith by consent of the learned Counsels for the parties.
[3] The petitioners are calling in question the judgment dated 24.04.2017 rendered by the Civil Judge, Senior Division, Nagpur in M.J.C. 225/2014, by
and under which, the ex parte judgment and decree dated 14.03.2012 in Special Civil Suit 1260/2008 is set aside.
[4] Special Civil Suit 1260/2008 was instituted by the petitioners seeking decree of specific performance of the agreement dated 17.04.2007.
[5] It is not in dispute that the summons was duly served on the defendant â€" respondent herein.
[6] The suit is decreed ex parte since despite the service of the suit summons the respondent â€" defendant did not contest the suit.
[7] The defendant preferred an application under Order IX, Rule 13 of the Code of Civil Procedure (CPC) for setting aside ex parte judgment and
decree.
[8]Â The defendant contended that after the receipt of the suit summons he contacted the plaintiffs. The plaintiffs assured the defendant not to
prosecute the suit if an additional agreement is executed. It is the contention of the defendant, which contention is seriously disputed by the plaintiffs,
that a supplementary agreement dated 14.01.2009 came to be executed between the parties, which agreement the plaintiffs suppressed from the Trial
Court. In sum and substance, the defendant contended that the plaintiffs practiced fraud in the sense that despite the assurance given to the defendant
the plaintiffs continued to prosecute the suit.
[9] The plaintiffs have rebutted every material averment in the application under Order IX, Rule 13 of the Code. The additional agreement dated
14.01.2009 is denied. During the course of the submissions, the learned Counsel for the plaintiffs points out that the alleged agreement dated
14.01.2009 does not bear the signatures of the plaintiffs, which fact is admitted by the sole witness examined on behalf of the defendant in M.J.C.
225/2014.
[10] The parties led evidence. The learned Trial Court, by the judgment impugned, was pleased to set aside the ex parte judgment and decree.
[11] The learned Counsel for the petitioners â€" plaintiffs Shri Anthony would submit that the Trial Court clearly fell in error in not appreciating that
the very substratum of the application for setting aside the ex parte decree is falsified by the evidence on record. The defendant contends that an
additional agreement dated 14.01.2009 was executed and the plaintiffs assured the defendant that the suit would not be prosecuted. Shri Anthony
would submit that since it is admitted by the sole witness examined on behalf of the defendant that the alleged supplementary â€" additional agreement
(Exh.57) is not signed by the plaintiffs, the entire justification pleaded in support of the application under Order IX, Rule 13 of the code collapses. Shri
Anthony would then submit that the learned Trial Court clearly erred in law in not appreciating that the application under Order IX, Rule 13 of the
Code was clearly time barred and could not have been entertained particularly since the defendant did not prefer an application for condonation of
delay. The ex parte decree was passed on 14.03.2012 and the application under Order IX, Rule 13 of the Code was preferred on 02.05.2014. Since
the suit summons was admittedly served, limitation would start running not from the alleged date of knowledge but from the date of the judgment and
decree, is the submission. Per contra, the learned counsel for the defendant Shri Amol Patil would submit, relying on a decision of the Hon'ble Apex
Court in Bhagmal & Ors. v. Kunwar Lal & Ors. reported in AIR 2010 SC 2991, that having come to the conclusion, and which conclusion is not
perverse, that the delay, if any, is satisfactorily explained, interference in writ jurisdiction would not be warranted notwithstanding that a separate
application seeking condonation of delay was not preferred. Shri Patil would submit that important property rights are involved and the defendant is
entitled to an opportunity to contest the suit on merits, particularly since the defendant has transferred the property to Shri Ashok Dhopadkar and Shri
R.S. Dhakate and the said purchasers have instituted a suit alleging that the present petitioners and the respondent â€" defendant acted in collusion.
[12] Having scrutinized the judgment impugned, this Court is compelled to observe that the judgment is not entirely satisfactory. The learned Trial
Court clearly erred in observing that since the application under Order IX, Rule 13 of the Code is preferred within 30 days from the receipt of the
certified copy, the same is within limitation. The learned Trial Court noted, albeit briefly, the evidence and the contentions. However, the contention
that the defendant was mislead into believing that the plaintiffs shall not prosecute the suit, is not considered at all. No finding is recorded on the main
contention of the defendant, which is the edifice of the application under Order IX, Rule 13 of the Code. This Court did initially, contemplate
remanding the matter for fresh consideration and in accordance with law. However, considering that the suit property is embroiled in litigation not only
between the petitioners and the defendant, but between the purchasers Shri Ashok Dhopadkar and Shri R.S. Dhakate, on one hand and the petitioners
and the respondent on the other, on a holistic consideration, this Court has refrained from remanding the matter to the Trial Court.
[13] The merits of the application under Order IX, Rule 13 of the Code apart, the conduct of the defendant does not appear to be above board. The
defendant has received Rs.7,00,000/Â from the plaintiffs in the year 2007, even if the disputed amount of Rs.75,000/Â allegedly paid at the time of
execution of the supplementary agreement is excluded. The defendant admits to have sold the property for valuable consideration of more than
Rs.22,00,000/Â. The defendant has neither informed the plaintiffs that the agreement is cancelled or that he intends to sell the property to some one
else. The defendant further has not even offered to refund the part consideration, despite having received a sizable sum a sale consideration of the suit
property. This Court is refraining from making any decisive observation on the material on record, inter alia the additional agreement pressed into
service by the defendant, since such observation may prejudice the parties in the litigation. In view of the conduct of the defendant, while this Court is
refraining from interfering with the judgment impugned in writ jurisdiction, stringent conditions are in order for showing indulgence to the defendant to
contest the suit on merits.
[14] Without prejudice to the respective contentions, and subject to the final outcome of Special Civil Suit 1260/2008, the respondent â€" defendant
shall refund the amount of Rs.7,00,000/Â along with the interest at the rate of 9% per annum with effect from the date of receipt of the amount till
actual payment. This shall be done within four weeks. This shall be a condition precedent and failure of the defendant to make the payment of the said
amount with interest shall revive the ex parte judgment and decree.
[15]Â The petition is disposed of in the aforeÂstated terms.