Ram Chandar vs Indrawati Devi And 2 Others
2023 Latest Caselaw 27403 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:193180
 
Court No. - 1
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 5710 of 2019
 

 
Petitioner :- Ram Chandar
 
Respondent :- Indrawati Devi And 2 Others
 
Counsel for Petitioner :- Girish Vishwakarma,Madhuker Kushwaha
 
Counsel for Respondent :- Vineet Kumar Singh
 

 
Hon'ble Jayant Banerji,J.

1. Heard Sri Girish Vishwakarma, learned counsel for the petitioner and Sri Vineet Kumar Singh, learned counsel appearing for the respondents.

2. This petition has been filed by the defendant challenging the judgment and order dated 4.4.2019 passed by the Additional District Judge/Fast Track Court, Court No. 1, Gorakhpur in Civil Revision No. 93 of 2016 (Indrawati Devi and others Vs. Ram Chandra) by which the order of the trial court dated 19.3.2016 was set aside and the trial court was directed to pass an order afresh in accordance with law.

3. Contention of learned counsel for the petitioner is that the plaintiff-respondent filed Civil Suit No. 1384 of 1996 (Kailash Nath Vs. Ram Chandra) before the court of Civl Judge (Junior Division), Gorakhpur seeking permanent injunction. The petitioner-defendant filed his written statement. Thereafter issues were framed.

4. It is stated that till 5.4.1999 the defendant was regularly appearing and participated in the court proceedings. However on 12.7.1999 the defendant was informed by his counsel that the court concerned is vacant. It is stated that thereafter the case was transferred to another court and defendant was unaware about the transfer of the case. After coming to know later by means of rumour in the village that the defendant has lost his case, he got his file inspected through his counsel and came to know that the suit was decreed ex-parte pursuant to a judgment dated 3.1.2000.

5. It is stated that an application under Order 9 Rule 13 along with a delay condonation application filed under Section 5 of the Limitation Act was preferred by the petitioner-defendant. The application under Section 5 of the Limitation Act was allowed by means of the order dated 19.3.2016 subject to deposit of cost of Rs. 1,500/-. The aforesaid order dated 19.3.2016 of the trial court in Misc. Case No. 96 of 2001 was subjected to challenge in a Civil Revision No. 93 of 2016 filed by plaintiff-respondent which came to be allowed by means of the impugned order dated 4.4.2019.

6. The contention of learned counsel for the petitioner is that the Revisional Court has wrongly relied upon a precedent of the Supreme Court in the case of Bijendra Nath Srivastava Vs. Mayank Srivastava (1994) 6 SCC 117 as perusal of the aforesaid judgment of the Supreme Court reflects the observation that the principal of estoppel which precludes a party from assailing an order allowing a petition, subject to payment of costs where the other party has accepted the costs in pursuance of the said order, would apply only in those cases where the order is in the nature of conditional order and payment of costs a condition precedent to the petitioner being allowed. Learned counsel for the petitioner has placed paragraph no. 20 of the aforesaid judgment in support of his contention. Learned counsel for the defendants has strongly opposed the petition and has stated that the Revisional Court was justified in remanding the matter back to the trial court to decide the application under Section 5 of the Limitation Act as the delay in filing the application under Order 9 Rule 13 was found to be inexplicable. It is further stated that the amount of cost of Rs. 1,500/- was accepted under protest by the counsel for the plaintiff and as such it cannot be said that the condition as prescribed in the order of the trial court has been complied with. It is stated that under the circumstances, the petition deserves to be dismissed.

7. Having heard learned counsel for the parties, the aspect that requires consideration at this stage is whether the Revisional Court ought to have interfered in the order of the trial court which had allowed an application under Section 5 of the Limitation Act. As is evident, the application under Section 5 was filed along with the application for setting aside the ex-parte decree filed under Order 9 Rule 13 of the C.P.C. This Court as well as the Apex Court have held time and again that the Court ought to be liberal in condoning delay unless a clear case of mala-fide is made out. A perusal of the order of the trial court reveals that after considering the facts and circumstances that led to the suit being decreed ex-parte and the subsequent application being filed by the defendant along with the delay condonation application for setting aside the ex-parte decree was made conditional on deposit of cost of Rs. 1,500/-. The aforesaid amount was paid by the defendant and was accepted by the learned counsel for the plaintiff, albeit under protest. It is noted that the application under Order 9 Rule 13 C.P.C. for setting aside the ex-parte decree is pending consideration. It would be appropriate at this stage to quote paragraph 18 of the aforesaid judgment of the Supreme Court in Bijendra Nath Srivastava which is as follows:-

"18.That apart the principle of estoppel which precludes a party from assailing an order allowing a petition subject to payment of costs where the other party has accepted the costs in pursuance of the said order applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed. In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequence of being deprived of the right to challenge the order on merits. The said principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed and costs have been awarded independently in exercise of the discretionary power of the court to award costs because in such a case the party who has been awarded costs has no opportunity to waive his right to question the validity or correctness of the order. The decision of the Andhra Pradesh High Court inMetal Press Works Ltd.v.Guntur Merchants Cotton Press Co. Ltd.[AIR 1976 AP 205 : (1975) 1 APLJ (HC) 283] on which reliance has been placed by the High Court, proceeds on the basis that awarding of costs was, in fact and substance, a part of the entire order allowing amendment in written statement and the said order was a conditional one. The decision of the Madras High Court inSree Mahant Prayag Dossjee Varuv.Raja Venkata Perumal[AIR 1933 Mad 410 : 1932 MWN 1118 : 142 IC 903] and the decisions of the Patna High Court inRamcharan Mahtov.Custodian of Evacuee Property[AIR 1964 Pat 275 : 1964 BLJR 291] andKapura Kuerv.Narain Singh[AIR 1949 Pat 491 : 27 Pat 187] on which reliance has been placed in the said judgment of the Andhra Pradesh High Court also emphasise that the orders under challenge were conditional orders and payment of costs was a condition precedent to allowing the petition. InJ. Devaiahv.Nagappa[AIR 1965 Mys 102] , the order allowing amendment of the election petition contained a direction regarding payment of costs. It was held that the application was allowed without any condition and that the order was not a conditional order and principle of estoppel was held inapplicable."

8. As discussed above the order of the trial court had noticed that the delay in filing the application under Order 9 Rule 13 C.P.C. was not sufficiently explained. However, in the interest of proper adjudication of the case on merits, the trial court had allowed the application filed under Section 5 of the Limitation Act subject to payment of cost. The cost was tendered and accepted. As such, the aforesaid observation of the Supreme Court made in the judgment in Bijendra Nath Srivastava (supra) would apply and the plaintiff-respondents would, in the facts and circumstances of the case, be estopped from assailing the order allowing the application under Section 5 of the Limitation Act.

9. In the interest of justice, adjudication on the application under Order 9 Rule 13 C.P.C. on its merit is warranted. It will be for the plaintiffs to raise such objections before the trial court against the aforesaid application as may be permissible and available to them in accordance with law.

10. Under the facts and circumstances of the case, the order of the Revisional Court dated 4.4.2019 cannot be sustained and is hereby set aside.

11. The trial court is requested to proceed with the adjudication of the application under Order 9 Rule 13 C.P.C. without granting any unnecessary adjournment to either of the parties.

12. This petition is, accordingly, allowed.

Order Date :- 6.10.2023

Aiman

(Jayant Banerji,J.)