Tarai Kala Sangam vs Sambhu Prasad Joshi & Others

Sudhanshu Dhulia, J

The present appeal from order has been filed by the appellant challenging the order dated 01.05.2019 passed by the First Additional District Judge, Udham Singh Nagar dismissing the application of the appellant under Section 5 of the Limitation Act, which was filed along with an application under Order XLI Rule 19 of CPC for readmission of the appeal. The lower appellate court did not find sufficient grounds for condonation of delay of more than one year.

The present appellant was the defendant in a suit filed by the plaintiffs/respondent nos. 1 and 2 herein, which was filed for injunction before the court below. In the said suit, a counterclaim was also made regarding the same land by the present appellant. The suit was decreed on 27.04.2009 and the counterclaim of the appellant was dismissed. Against the decree, the present appellant preferred an appeal before the learned District Judge, Udham Singh Nagar, which was assigned to the First Additional District Judge, Udham Singh Nagar where it was dismissed for non-prosecution on 28.07.2014.

According to the appellant, he was not informed by his lawyer about this dismissal, and as soon as he got the information, he promptly moved an application under Order XLI Rule 19 of CPC (for readmission of appeal), along with the delay condonation application annexing all the relevant documents, such as medical certificate, etc. However, this did not find favour with the lower appellate court and the application of the appellant has been dismissed vide order dated 01.05.2019. Aggrieved, the appellant has filed the present appeal before this Court under Order XLIII Rule 1 (t) of CPC before this Court.

Learned counsel for respondent no. 2 Sri Chandramauli Shah would argue that since the application of the appellant under Section 5 of the Limitation Act has been dismissed, it amounts to dismissal of an appeal and the only remedy available to the appellant as of now is to file a second appeal.

This argument is not acceptable for the reason that it is not where the present appellant has filed a belated appeal and in that Section 5 application has been dismissed. The admitted position is that the appellant had filed the appeal within time before the lower appellate court but thereafter it was dismissed for non-prosecution and what this Court is presently dealing with is the rejection of Section 5 application which was filed along with the application under Order XLI Rule 19 of CPC for readmission of the appeal. These are two different situations altogether. Presently the appeal is maintainable. Therefore appeal from order would lie under Order XLIII Rule 1 (t) of CPC.

One of the grounds given by the lower appellate court for rejecting the delay condonation application is that even in the past such an application has been dismissed. That seems to be the ground weighing in the mind of the lower appellate court while rejecting the Section 5 application of the appellant. However, this could not have been taken as a ground as for the earlier occasions the delay stood condoned and the appeal was admitted. Relying upon that and then making the ground for dismissal of the appeal is perhaps not correct. This is also the view taken by the Hon'ble Apex Court in the case of A. Murugesan vs. Smt. Jamuna Rani, reported in 2019 (1) U.D., 251. The relevant paragraph nos. 11 and 12 of the said judgment read as under:-

"11. From a perusal of the order of the Trial Court, it is clear that the Trial Court has taken into consideration the past conduct of the appellant-defendant in the suit, instead of confining the consideration as to whether the appellant has shown sufficient cause or not for not appearing in the matter on 16.03.2009. It is fairly well settled that when an application is filed for setting aside ex-parte decree under Order IX Rule 13 of CPC, the only aspect which is required to be considered is whether any sufficient cause is shown for absence in the matter when the matter was called. Without recording the specific finding, on the plea of the appellant that there was sufficient cause, the Trial Court has committed error in rejecting the application under Order IX Rule 13 of CPC. Even the appellate and the revisional court have not considered the matter in proper perspective and rejected the claim of the appellant. The judgment in a case of G.P. Srivastava (supra) supports the case of the appellant. In the aforesaid judgment, the very issue was fallen for consideration before this Court. The relevant paragraph no. 7 reads as under:

"7. Under Order IX Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for nonappearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.

The aforesaid view taken by this Court in the judgment referred above supports the case of the appellant. It is further brought to our notice that on the aforesaid date, i.e., 16.03.2009, on which date the suit was listed for trial, in view of the boycott of the courts by the advocates, all other cases were adjourned and only this case was proceeded and ex-parte decree was passed."

In view of the above, the appeal from order is allowed. The order dated 01.05.2019 is hereby set aside. Let the appeal be readmitted and heard on its merits in accordance with law, as expeditiously as possible.