Girish Chand Verma And Others vs Arvind Kumar And Anr.
2019 Latest Caselaw 4929 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved On 15.5.2019
 
Judgment Delivered On 23.5.2019
 
Court No. - 40
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2622 of 2012
 

 
Appellant :- Girish Chand Verma And Others
 
Respondent :- Arvind Kumar And Anr.
 
Counsel for Appellant :- Pankaj Agrawal
 
Counsel for Respondent :- Anil Kumar Yadav
 

 
Hon'ble Harsh Kumar,J.

Present F.A.F.O. has been filed against order dated 6.4.2012 passed by Additional District Judge, Court No.17, Agra in Misc. Case No.70/10 rejecting application of appellants under Section 5 of Indian Limitation Act for condonation of delay and consequently rejecting application under Order IX Rule 13 of Code of Civil Procedure, hereinafter referred to as "C.P.C." for setting aside exparte judgment and decree dated 5.1.2004 in Original Suit No.287/2003 passed by Additional District Judge, Court No.17, Agra.

Brief facts relating to the case are that respondent No.1, Arvind Kumar filed Civil Suit No.287 of 2003 for permanent injunction against appellants, which was decreed exparte on 5.1.2004. The appellants (who were defendants of suit) moved an application under Order IX Rule 13, C.P.C. for setting aside exparte decree dated 5.1.2004 passed in civil suit No.287/2003, Arvind Kumar Vs. Girish Chand Verma and others along with an application under Section 5 of the Limitation Act for condonation of delay, which have been rejcted vide impugned order dated 6.4.2012. Feeling aggrieved defendants have preferred this First Appeal From Order.

Heard Shri Pankaj Agrawal, learned counsel for the appellants and Dr. S.B. Singh, Advocate holding brief of Shri Anil Kumar Yadav, learned counsel for the respondent No.1 and perused the record as well as lower court record.

Learned counsel for the defendant-appellants contended that father of appellants Prabhu Dayal had filed a civil suit No.327 of 1990, Prabhu Dayal Vs. Trilok Singh for possession over the property in question, which was dismissed by trial court vide judgment and decree dated 4.3.1994 and was decreed by appellate court by allowing of first appeal No.108/1994 vide judgment and decree dated 25.5.2000; that against the judgment and decree passed by 1st appellate court, decreeing civil suit No.327 of 1990 and passing a decree of possession in favour of Prabhu Dayal against defendant Trilok Singh, defendant Trilok Singh filed second appeal No.868 of 2000 before this Court, that Prabhu Dayal had died during the pendency of second appeal before High Court and his L.R.'s i.e. appellants were substituted as respondents in second appeal; that second appeal was dismissed on 14.7.2000 and special leave petition No.2532 of 2001 filed by Trilok Singh before the Apex Court was also dismissed on 16.4.2001 and decree in favour of Prabhu Dayal in civil suit No.327 of 1990 became absolutely final; that respondent No.1, Arvind Kumar claiming to have purchased the property, which was subject matter of civil suit No.327/1990, vide sale deed dated 21.2.2003 from Vinod Kumar, filed civil suit No.287 of 2003 with false and baseless allegations for a decree of permanent injunction and surreptitiously got it decreed exparte on 5.1.2004; that alleged sale deed dated 21.2.2003, if any, has been obtained by respondent No.1 in collusion with Trilok singh, the defendant-judgment debtor of civil suit No.327 of 1990, who lost upto Apex Court with illegal design and malafide intention to obstruct execution of decree passed in above suit in favour of appellants; that Prabhu Dayal, father of the appellants had filed execution case No.9 of 2000 for execution of decree passed in civil suit No.327/1990 in which respondent No.1 filed false and baseless objections under Order XXI Rule 97, C.P.C. without providing its copy to counsel for decree holder, however with false and fabricated endorsement regarding providing of copy to him; that the then counsel for appellants, hereinafter referred to as "earlier counsel" was of opinion that since appellants have finally won the case on merits up to Highest Court of Law i.e. Apex Court, the exparte decrere having been obtained by respondent No.1 will not adversely affect, rights and title of appellants over property in suit and never advised appellants for seeking of setting aside of exparte decree; that when appellants engaged another counsel in execution case No.9 of 2000, hereinafter referred to as "subsequent counsel", he advised appellants that inspite of having won Civil Suit No.327 of 1990 up to Apex Court, above exparte decree in suit No.287 of 2003 is required to be set aside in order to avoid any objections and complications in future; that on such advice without any deliberate delay appellants moved an application for setting aside exparte decree on 21.10.2010 despite of having knowledge of exparte decree, on 30.11.2009 through their earlier counsel; that appellants did not file any objections through Power of Attorney; that appellants had no reason to keep their eyes closed towards impugned exparte decree obtaining its case upto Apex Court for letting their rights adversely affected by anybody and letting respondent No.1, an stranger having no right, title and interest in the property in suit to deprive them of the fruits of decree, and to usurp the property in suit in collusion with Trilok Singh, Judgment Debtor of Civil Suit No.327/1990; that in civil suit neither notices nor summon were ever sent to appellants (defendants in the suit) through process server or by registered post, nor they ever refused to receive the same, nor were ever served in any manner whatsoever; that upon getting the record of Civil Suit No.287 of 2003 inspected through counsel it was transpired that on 5.11.2003 court passed an order for service of summons through publication in daily newspaper "Dainik Jagran", but instead of "Dainik Jagran" it was got published in so called dainik newspaper "Taja Taar", which has no circulation in Agra or in the vicinity of residence of appellants; that in place of summons inviting written statement, notices issued on 25.11.2003 fixing very short date 4.12.2003, were published in newspaper "Taja Taar" an evening newspaper of same day bearing two dates 25 & 26.11.2003, on the basis of which service of summons was deemed sufficient on appellants and case proceeded exparte and decreed exparte on 5.1.2004; that appellants have not committed any wilful diappearance in suit and have not caused any deliberate delay in moving of applications under Order IX Rule 13 C.P.C. and Section 5 of Indian Limitation Act; that appellants are simple type of persons haivng no legal knowledge of court proceedings and could not move application for sertting aside exparte decree within prescribed period of limitation for want of proper legal advice; that there is no wilful or deliberate delay in moving of applications under Order IX Rule 13 C.P.C. & Section 5 of Limitation Act and whatever delay has been caused has been caused due to bonafide mistake, which is liable to be condoned in the interest of justice; that there were no malafides of appellants and they sucessfully shown sufficient cause for condoning delay and setting aside exparte decree; that if the delay is not condoned, the appellants, (who have obtained decree in their favour finally from Apex Court) will deprive of the fruits of decree and will suffer irreparable injury, while in case of setting aside exparte decree by condonation of delay the plaintiff-respondent No.1 is not likely to suffer adversely and may be compensated with adequate amount of cost, if any.

Per contra learned counsel for the plaintiff-respondent No.1 supported the impugned order and contended that the defendant-appellants have not come with clean hands and have concealed the real facts; that after death of Prabhu Dayal, a sale deed was executed by Agra Devlopment Authority in favour of appellants on 16.12.2000 in respect of property which was subject matter of civil suit No.327/1990 and they executed a power of attorney in favour of Raj Kumar on 7.9.2001 who in turn executed a registered sale deed in favour of Vinod Kumar on 11.10.2001 and Vinod Kumar sold the property in suit (which was subject matter of civil suit No.327 of 1990) to plaintiff-respondent No.1, Arvind Kumar vide registered sale deed dated 21.2.2003; that subject matter of civil suit No.327/1990 & 287/2003 is one and same; that respondent No.1 when came to know that appellants are trying to obtain possession over the property purchased by him, he filed civil suit No.287 of 2003 for a decree for permanent injunction, which was decreed exparte on 5.1.2004; that later on when respondent No.1 came to know about execution proceedings initiated by appellants with regard to execution of decree passed in civil suit No.327/1990, he filed his objections under Order XXI Rule 97 CPC in execution case No.9 of 2000 relating to civil suit No.327 of 1990 by providing a copy of objections to learned counsel for the decree holder, who prayed for time for filing reply on 18.10.2006; that in his objections under Order XXI Rule 97, C.P.C. Respondent No.1 clearly mentioned about the exparte decree dated 5.1.2004 passed in his favour in civil suit No.287/2003; that appellants had been duly served with summons of civil suit No.287 of 2003 thorugh publication in local newspaper "Taja Taar" on approved list of District Courts and in any case they had full knowledge of exparte decree dated 5.1.2004 since filing of objections under Order XXI Rule 97 C.P.C. by respondent No.1 on 18.10.2006; that it is absolutely wrong to say that they got knowledge of above exparte decree in the year 2009 or were not advised for moving application for setting it aside by their earlier counsel; that the application under Order IX Rule 13 C.P.C. r/w application under Section 5 of Limitation Act were moved with false and incorrect allegations and malafide intentions to harm and harass respondent No.1; that there is no sufficient cause for allowing application under Section 5 of Limitation Act and entertaining application under Order IX Rule 13 C.P.C. by condoning delay; that learned trial court has rightly rejected application under Section 5 of Limitation Act and consequently under Order IX Rule 13 C.P.C.; that appeal is liable to be dismissed.

Upon hearing parties counsel and perusal of record I find that it is not disputed that subject matter of civil suit No.327 of 1990, Prabhu Dayal Vs. Trilok Singh and that of present case i.e. civil suit No.287 of 2003, Arvind Kumar Vs. Girish Chand Verma filed by plaintiff-respondent No.1 are one and the same. The plaintiff-respondent No.1 claims to have purchased the property, subject matter of civil suit No.327 of 1990 from Vinod Kumar, which has been disputed by appellants. As far as the correctness of conention of purchasing the property by plaintiff-respondent No.1 and execution of alleged deeds of power of attorney etc., the same are the questions to be decided at the time of disposal of suit on merits and may not be relevant for the purpose of disposal of application under Order IX Rule 13 C.P.C. read with application under Section 5 of Limitation Act.

It is also pertienent to mention that civil suit No.287 of 2003 was filed by plaintiff-respondent No.1 seeking a decree of permanent injunction on 7.4.2003 and it was decreed exparte within a period of nine months on 5.1.2004. As per provisions of C.P.C., upon institution of a suit, the defendant has to be served with summons for filing written statement within 30 days from the date of service of summons in accordance with the provisions of order V of C.P.C. The relevant provisions of order V Rule 1 C.P.C., Order V Rule 20 (1-A) C.P.C., Order IX Rule 13 C.P.C. and Section 5 of Limitation Act, are being reproduced for ready reference.

Order V Issue and Service of Summons

Rule 1. Summons-(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:

Rule 20- Substituted Service

Rule 20 (1-A)Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

Order IX Setting aside decrees ex parte

13.Setting aside decree ex parte 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.

Section 5 Indian Limtation Act

Section 5. Extension of prescribed period in certain cases.-Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

From above provisions it is crystal clear that the Code of Civil Procedure provides that summons will be issued to defendant fixing a date after more than a month with clear notice of 30 days calling upon defendant to file written statement within 30 days of service and after service of such summons the court shall proceed to determine issues in accordance with the provisions of Order V Rule 5 C.P.C. It is also provided that in case of order of service by advertisement in newspaper, the newspaper shall be (i) a daily newspaper (ii) having circulation in the locality in which the defandant is last known to have actually or voluntarily resided.

Perusal of lower court record of civil suit No.287 of 2003 and misc. cases summoned in this appeal shows that on 5.11.2003 court passed order that "registry sent to defandant has been received back without service, so summons be issued through publication in daily newspaper "Dainik Jagran", however on 24.11.2013 on application 36/C of plaintiff-respondent for publication in local newspaper, 4.12.2003 (just after 10 days) was fixed for W.S./Issues, Objections/Disposal and paper 37C newspaper of publication was received on record on just 4th day of its issuance i.e. on 28.11.2003 and case was ordered to proceed exparte on 4.12.2003. Perusal of newspaper of publication "Taja Taar" paper 37A on lower court record shows that it was a Hindi evening newspaper which is a small paper of four small size pages equivalent to the size of single page of any provincial or national daily newspaper folded from middle and numbered 1, 2, 3, 4 and on top of first page of 37/A following is mentioned in Hindi:

"Agra Mangalwar 25.11.2003 Sandhya

Taja Taar

Agra Budhwar 26.11.2003"

In above newspaper on front page there are only three news articles with regard to (i) cease fire on Bharat-Pak Border (ii) flesh business on Dhaba and (iii) tourism in Chambal valley. There is no other national or provential news in the newspaper in first three pages and on 4th page of above newspaper over 3/4th part there are only advertisements of movies running in local talkies (picture halls) and on right side column notice of civil suit No.287 of 2003 has been published. It is strange that front page of newspaper Taja Taar bears two date 25.11.2003 Mangalwar and 26.11.2003 Budhwar which doubts its credibility. It is also pertinent to mention that as per notice published in above newspaper, Taja Taar, notice was issued by court on 25.11.2003 and has been published in the local evening newspaper on same day fixing 4.12.2003. It is also pertinent to mention that the above notice is not in accordance with provisions of Order V Rule 1 of the C.P.C. and it does neither call defendants to file written statement in 30 days nor discloses the nature of suit filed against them and moreover is not on proforma given at 1A in appendix B of the C.P.C. The above notice is only of 9 days as against the specific provision of 30 days clear summons for filing written statement as prescribed under Order V Rule 1 C.P.C. It is also pertinent to mention that even if the above newspaper is assumed to be on approved list of district courts, the above evening newspaper, which publishes notice on very same day of its issuance is neither a daily newspaper, nor a newspaper which may be having wide circulation, as it does not cover important National and Provincial news for providing which a newspaper gets wide circulation. The above newsppaer is neither "Dainik Jagran" as was ordered by trial court, nor fulfils requirements of provisions of Order V Rule 20(1-A) CPC. In the circumstances by publication of above notice since (i) it was not a summon as required under Order V Rule 1 C.P.C., (ii) it was for 9 days instead of clear 30 days summon, (iii) it does not call for filing of W.S., (iv) it does not disclose nature of suit, (v) it has been published in local evening newspaper Taja Taar having no circulation in vicinity of residence of appellants as against daily newspaper "Dainik Jagran" having very wide circulation, so it may not be considered to be in compliance with provisions of order V of C.P.C. On the basis of such defective publication, service of summons (particularly when no summons was published at all) could not have been considered to be sufficient on defendants and passing of exparte order and decree passed on the basis of defective publication of such a defective notice in contravention of provisions of Order V Rule 1 and Rule 20(1-A) C.P.C. may not be considered to be in accordance with law. The purpose behind provisions for publication of summon in daily newspaper of wide circulation is, that even in case the defendant does due to illiteracy or otherwise not go through such publication in local newspaper, there may be larger possibility that some one else upon going through such publication of summons may also inform the defandants, and on getting knowledge of suit proceedings through some other person they may have an opporutnity of putting appearance and contesting the case. The provisions of Order V of C.P.C. have been enacted with an object of providing fair oppotunity of hearing to all persons against whom suit has been filed, so that no person may remain unheard.

In catena of cases it has been laid down that "sufficient cause" with reference to Section 5 of Limitation Act as well as Order IX Rule 13 C.P.C. means a cause, which is not malafide.

In the case of Abdul Wazid Vs. Additional District Judge, Nainital, 1993 (1) Allahabad Rent Cases 450 it was held that,

"Undisputedly court should make condoning attitude, but when delay was found to be deliberate, law nowhere permits condonation".

In the case of R.B. Ramlingam Vs. R.B. Bhvaneswari, (2009) 2 SCC 689 the Apex Court held that,

"In condonation of delay true guide is, whether petitioner has acted with reasonable deligence in prosecution of his appeal/petition."

In the case of Perumon Bhagwathy Vs. Bhargavi Amma, (2008) 8 SCC 321 the Apex Court held that,

" Sufficient cause to be applied in a reasonable pragmatic, practical and liberal manner dependant on facts and circumstances of each case, so as to advance substantial justice, when delay is not on account of dilatory tactics, want of bonafides, deliberate inaction or negligence of appellants."

In the case of Ramji Das and others Vs. Mohan Singh, 1978 ARC 496 SC the Apex Court held that,

"Court's discretion should be exercised in favour of hearing and not to shut out hearing."

In the case of N. Balakrishnan Vs. N. Krishnamurthy, AIR (1998) 7 SCC 123 wherein,

"883 days of delay in filing of application under Order IX Rule 13 C.P.C. caused due to failure of advocate to inform appellant as well as his failure to take action found satisfactory by trial court, which was set aside by High Court in revision and Apex Court setting aside the order passed by High Court holding it not proper held that court should compensate other party in such cases".

In the case of G.P. Srivastava Vs. R.K. Raizada, (2000) 3 SCC 54 Supreme Court the Apex Court held that,

"Sufficient cause for non appearance with reference to date of absence cannot be stretched to rely upon other circumstances anterior in time-Even if applicant was found to be negligent-Held ends of justice can be met only if he is allowed opportunity to prove his case-the other side could have been compensated by cost".

In view of law laid down in above pronouncements and similar facts particularly in the cases of N. Balakrishnan and G.P. Srivastava (supra) as well as facts of this case, since it is very much clear that no proper (i) summon in accordance with the provisions of Order V Rule 1 & Rule 20(1-A) of C.P.C. was ever issued to defendants-appellants and, (ii) in place of publication of clear 30 days summon for filing W.S. in daily newspaper Dainik Jagran, haivng wide circulation, by publication of 9 days notice in local evening newspaper having no circulation, they were not duly served and had no knowledge of such proceedings. Undisputedly the defandants-appellants and their father had won the case up to Apex Court being Civil Suit No.327 of 1990 and whatever may be the case having been made by plaintiff-respondent in alleged collusion with Judgment Debtor Trilok Singh, after final judgment and decree in civil suit No.327 of 1990 by Apex Court on 16.4.2001, defendants-appellants were not supposed to avoid contesting civil suit No.287 of 2003 and let themselves deprive of fruits of decree in their favour despite knowledge. The appellants are alleged to be simple persons and may not be having knowledge of legal matters and have come with clean hands by stating that they were not informed by their earlier counsel about the exparte decree obtained by respondent prior to 2009 and were not advised for moving application under Order IX Rule 13 C.P.C. and were so advised by subsequent counsel, so they may not be considered to be at fault. There appears no deliberate delay or malafides on the part of appellants in moving application under Order IX Rule 13 C.P.C. with delay and they appears to have come with bonafide contention and clean hands with allegations that when their subsequent counsel advised them to do so, they moved application under Order IX Rule 13 C.P.C. without any intentional or deliberate delay with an application under Section 5 of Limitation Act for condoning the unintentional and bonafide delay.

In matters for setting aside exparte orders as well as for condonation of delay showing sufficient cause, courts are required to have liberal approach for doing substantial justice with rights of parties and technicalities must not come in the way for affording opportunity of hearing to parties. In the present case the appellants, who had obtained a decree up to Apex Court, will suffer irreparably, if their application for condonation of delay in moving application under Order IX Rule 13 C.P.C. for setting aside exparte decree dated 5.1.2004 in Civil Suit No.287 of 2003 is not allowed and disposal of application under Order IX Rule 13 C.P.C. is not done on merits, because the doors of hearing will stand shut for them and they will be deprived of decree passed in civil suit No.327of 1990 up to Apex Court while in case of condonation of delay and disposal of application under Order IX Rule 13 C.P.C. the plaintiff-respondent will not suffer any loss whatsoever and the alleged loss if any can be compensated by cost.

In view of the discussions made above, I have come to conclusion that it was proved from the evidence on record that there was no deliberate delay in moving of application under Order IX Rule 13 C.P.C. by defendants-appellants. The appellants had successfully shown bonafide & sufficient cause for codonation of delay in moving of application under Order IX Rule 13 C.P.C. as the same was caused on account of delayed legal advice of their subsequent counsel and no deliberate or intentional delay was caused in moving of the application. The learned trial court instead of doing substantial justice entered into technicalities and failed to consider that no prudent man after having obtained a final and absolute decree by contesting civil suit No.327 of 1990 upto Apex Court for 11 years will let the suit filed by someone else decreed despite having knowledge to deprive himself of fruits of decree in his favour and cause any deliberate delay in moving of application under Order IX Rule 13 C.P.C. The learned trial court has acted wrongly with material irregularity in not considering that there was no malafide and deliberate delay on the part of defendants-appellants as well as in not exercising discretion in favour of hearing rather exercised discretion in favour of shutting doors of justice for defendants-appellants and thereby rejecting delay condonation application and consequently, the application under Order IX Rule 13 C.P.C. shutting the doors of justice for defendants forever. The impugned order is wrong and incorrect and is liable to be set aside. The appeal is liable to be allowed.

Appeal is allowed. Impugned order dated 6.4.2012 rejecing application under Section 5 of Limitation Act and consequentely rejecting application under Order IX Rule 13 C.P.C. is set aside without expressing any opinion to merits of the case. The application for condonation of delay under Section 5 of Limitation Act stands allowed subject to payment of cost of Rs.500/- which will be deposited by appellants in court below in favour of plaintiff-respondent No.1 by 10th of July 2019 and delay in moving of application under Order IX Rule 13 C.P.C. stands condoned, which will be treated to be within time and will be decided on merits in accorance with law.

Send back the record to court below for expeditious disposal of application under Order IX Rule 13 C.P.C. (against which objections have already been filed by respondents) after affording reasonable opportunity of hearing to both parties and without granting unnecessary adjournments to either party, in accordance with law, within three months of production of certified copy of this order before court below.

Office is directed to send back lower court record forthwith along with copy of judgment passed in this appeal.

Order Date :- 23.5.2019

T. Sinha