WPMS/2147/2015 of Rashim Bakshi Vs Smt. Kamla Devi Jain AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Civil Misc. Writ Petition No. 2147 of 2015 (Under Article 227 of the Constitution of India)

Rashim Bakshi

...….…… Petitioner

versus

Smt. Kamla Devi Jain and others ………. Respondents

Mr. Neeraj Garg, Advocate, holding brief of Mr. Anuj Garg, present for the writ petitioner. Mr. B.P.Nautiyal, Senior Advocate, assisted by Mr. Mohd. Matloob, Advocate, present for the respondents.

U.C. Dhyani, J. (Oral)

1. By means of present writ petition under Article 227 of the Constitution of India, the writ petitioner seeks to issue writ, order or direction in the nature of Certiorari quashing the impugned judgment and order dated 13.08.2015, passed by Addl. District Judge, Vikas Nagar, in Civil Revision No. 167 of 2010, Rashim Bakshi vs. Smt. Kamla Devi Jain and others (annexure-1), and the order dated 20.10.2010, passed by Civil Judge (J.D.), Vikas Nagar, in Misc. Case No. 14 of 2008 (Kamla Devi Jain vs. Shashi Bakshi & others) passed on Application Paper No. 6C under Section 5 of the Limitation Act (Annexure-2) to the writ petition.

The facts giving rise to the present writ petition, in the language of the writ petitioner, are as follows:

(i) Property in dispute was initially owned by one Jugul Kishor, which is also admitted to defendant/respondent no. 1. Jugul Kishor started raising construction of Cinema Hall on the land in question and at the same time fell seriously ill which caused him great financial loss, accordingly, defendant /respondent no.1 approached Jugul Kishor for providing monetary help of Rs. 30,000/- which Jugul Kishor accepted. As paper formality document pertaining to land in question was prepared in the name of Smt. Kamla Devi, however, it was decided that the same was done merely to show it to public and possession of Jugul Kishor remained on land in question and was never transferred to Smt. Kamla Devi Jain. On 03.01.1972, Jugul Kishor retruned the amount of Rs. 30,000/- to Smt. Kamla Devi Jain and obtained the receipt and got the alleged document cacnelled and Smt. Kamla Devi Jain agreed to execute document in turn in favour of Jugul Kishor. By passage of time, the execution of document was lingered on one pretext or another, in the meantime, Jugul Kishor expired on 18.09.1973 leaving behind his legal heirs Smt. Shashi Bakshi, Rashmi Bakshi, Kumkum Seth and Smt. Renu Atgar, who declared themselves as the owner of the property within the knowledge of entire public and well within the knowledge of Smt. Kamla Devi Jain. In the year 2006, intention of Smt. Kamla Devi Jain turned bad under the influence of her brother Shri Harish Cahndra Jain, accordingly, legal heirs of Jugul Kishor instituted suit being Original Suit No. 129 of 2006, Shashi Bakshi & others vs. Kamla Devi Jain, in which Smt. Kamla Devi Jain appeared, engaged counsel and accepted the truth and accordingly suit was decreed on 07.08.2007.

(ii) Smt. Kamla Devi Jain despite having due service of summonses of the suit, after taking appearance in the suit through counsel, subsequently, failed to appear before the trial court and as consequence of which, the suit was decreed ex parte. Smt. Kamla Devi Jain was having throughout knowledge of proceedings of the suit and judgment passed therein.

(iii) Subsequently, Smt. Kamla Devi Jain on 18.02.2008filed application under Order 9 Rule 13 C.P.C. for setting aside the judgment and decree dated 07.08.2007in original suit no. 129 of 2006 being Misc. Case No. 14 of 2008 along with application under Section 5 of Limitation Act.

Respondent no.1 contended that She never received any summon from the Court and for the first time on 08.02.2008, she came to know about the ex parte judgment and decree passed in the aforesaid suit.

(iv) Apart from filing the restoration application, defendant /respondent no.1 also preferred Civil Appeal u/S 96 read with order 41 C.P.C., before the Court of learned District Judge, Dehradun challenging the ex parte judgment and decree dated 07.08.2007. The appeal was filed belatedly along with Application under Section 5 of the Limitation Act, and was registered as Misc. Case No. 175 of 2008, Kamla Devi Jain vs. Shashi Bakshi.

(v) The petitioner as well as the other plaintiffs of Original Suit No. 129 of 2006 filed their objections against Delay Condonation Application as well as the Restoration Application and contended that there is no sufficient cause within the meaning of Section 5 of the Limitation Act for condoning the delay. Defendant was having full knowledge of entire proceedings. She appeared before the Trial Court, engaged counsel and after acknowledging the rights of the plaintiffs, she has deliberately not appeared before the learned trial court.

(vi) Vide impugned order dated 20.10.2010, learned Trial Court allowed the application no. 6C under Section 5 of the Limitation Act filed by respondent no.1 seeking Condonation of Delay in filing the Application under Order 9 Rule 13 C.P.C.

(vii) Vide impugned order dated 20.10.2010 (same day), learned Trial Court allowed the restoration application being paper no. 3A of respondent no.1 u/O 9 Rule 13 C.P.C. , and set aside the ex parte decree dated 07.08.2007 and restored the suit to its original number.

(viii) The petitioner feeling aggrieved from the order dated 20.10.2010 condoning the delay in filing the restoration application, filed Civil Revision No. 167 of 2010, Rashim Bakshi vs. Kamla Devi Jai & others, before the court of learned District Judge, Dehradun.

(ix) Likewise the petitioner feeling aggrieved from the order dated 20.10.2010 allowing restoration application under Order 9 Rule 13 CPC of the respondent no. 1, filed Civil Revision No. 168 of 2010, Rashim Bakshi vs. Kamla Devi Jain & others, before the Court of learned District Judge, Dehradun.

(x) Vide impugned judgment dated 13.08.2015, learned Additional District Judge, Vikas Nagar, dismissed the Civil Revision No. 167 of 2010 preferred against the order condoning the delay and at the same time, also dismissed the Civil Revision no. 168 of 2010 preferred against the order allowing the restoration application, against which separate writ petition is being filed.

3. An ex parte decreewas passed on 07.08.2007. An application for setting aside the decree was moved on 18.02.2008along with application under Section 5 of the Limitation Act. Considering the sufficiency of the reasons

thus furnished in support thereof, learned Trial Court allowed the Application under Section 5 of the Limitation Act. Thereafter being satisfied with the reasons furnished in support of restoration application, allowed the same, also set aside the ex parte decree, which was challenged before the revisional court and is also the subject matter of the present writ petition.

4. Learned counsel for the petitioner argued that:

(i) Both the courts below absolutely erred in law in allowing the restoration application, ignoring proviso to Rule 13 of Order 9 CPC inserted vide Allahabad amendment, which is reproduced as under:the restoration application, ignoring proviso to Rule 13 of Order 9 CPC inserted vide Allahabad amendment, which is reproduced as under:

“Provided also that no such decree shall be set

aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the student knew, or but for his willful conduct would have know, of the date of hearing is sufficient time to enable him to appear and answer the plaintiff’s claim.”

(ii)Both the Courts below failed to consider the law laid down by Hon’ble Supreme Court in case of Oriental Aroma Chemical Industries vs. Gujarat Industrial Development Corporation & another, reported in (2013) 3 C.P.R. (S.C.) page 615,wherein it has been held that every legal remedy must be kept alive for period of fixed by legislature. down by Hon’ble Supreme Court in case of Oriental Aroma Chemical Industries vs. Gujarat Industrial Development Corporation & another, reported in (2013) 3 C.P.R. (S.C.) page 615,wherein it has been held that every legal remedy must be kept alive for period of fixed by legislature.

(iii) Both the Courts below failed to consider the law laid down by Hon’ble Allahabad High Court in Sitaram vs. Sridhar, reported in 2006 (24) L.C.D., page 1239, wherein Hon’ble Allahabad High Court held as under: down by Hon’ble Allahabad High Court in Sitaram vs. Sridhar, reported in 2006 (24) L.C.D., page 1239, wherein Hon’ble Allahabad High Court held as under:

Previously Courts did show lenience and latitude in dealing with applications for adjournment and Condonation of Delay. It is high time changed perspective and attitude is adopted, since the Courts are already overburdened with cases resulting in inordinate delay in disposal of cases. Those days of Condonation of dalliance and delay should now be over and in cases where no sufficient and proper reason is assigned for delay, the Court must adopt the stern attitude and refuse relief. That will also help in transmitting message that the court will no more be indulgent and parties beware.

(iv)Both the Courts below failed to consider that delay of more than five months cannot be condoned in the absence of existence of sufficient cause within the meaning of Section 5 of the Limitation Act, 1963 and the very purpose of Section 5 of Limitation Act cannot be frustrated.

5. In judgment rendered by Hon’ble Supreme Court in Balwant Singh (dead) vs. Jagdish Singh and others, (2010) 8 SCC 685, the following was observed :

“…………….However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows ‘sufficient cause’ for not preferring the application within the prescribed time. …………………”

6. Hon’ble Supreme Court in G. Ramagowda vs. Special Land Acquisition Officer, AIR 1988 SC 897 and Shakuntala Devi Jain vs. Kuntal Kumari, AIR 1869 SC 575 has observed that the expression ‘sufficient cause’ in Section 5 must receive liberal construction so as to advance substantial justice and generally delays in preferring appeals

are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. It has been held by Hon’ble Supreme Court in State (NCT of Delhi) vs. Ahmed Jaan, 2008 (10) JT 179 that the expression ‘sufficient cause’ should be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay.

7. The expression ‘sufficient cause’ has not been defined. It means cause which is beyond control of the party invoking the aid of the Act. The test, whether or not case is sufficient, is to see whether it is bona fidecause, inasmuch as, nothing shall be taken to be done bona fide or in good faith which is not done with due care and attention. Subject to the above test, the words ‘sufficient cause’ should receive liberal construction so as to advance substantial justice. When no negligence nor inaction nor want of bona fides is imputable to party for the delay in filing remedy, it would constitute sufficient cause. Ordinarily, litigant does not stand to benefit by lodging an appeal late. Refusing to condone the delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when the delay is condoned, at the most what can happen is that the case would be decided on merits after hearing the parties. pedantic approach should not be there. It should be

applied pragmatically. 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 justice being denied to him because of non-deliberate delay. There is no presumption that the delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk in the same. It must be understood that this institution is respected not on account of its authority to legalize injustice on technical grounds but because it is capable of removing the injustice.

8. After having heard learned counsel for the parties and having gone through the documents brought on record, this Court, therefore, is of the view that the order impugned is not interferable. Learned court below has committed no mistake in dismissing the Civil Revision filed by the plaintiff/revisionist.

9. Writ petition, therefore, fails and is accordingly dismissed.

(U.C. Dhyani, J.)

09.09.2015