Bombay High Court
Ahmad Ali Hodekar vs Ruksanabegam Ahmad Hodekar (Since ... on 18 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:12607
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 225 OF 2019
Ahmad Ali Hodekar,
Aged 55 years, Occu. Trade,
Residing at 347B, New Phansop,
Tal. Dist. Ratnagiri.
At present residing at Alsaja,
Post Box No. 2348, Sharja, U.A.E. ...Applicant
Versus
1. Ruksanabegam Ahmad Hodekar
Residing at Plot No. 29, Survey No. 72
Samarth Nagar, Shivaji Park,
Road No.3, Aundh,
New Sangvi, Pune 411 027.
(Since deceased through legal heirs).
1a. Habib Abdulla Solkar
Aged 52 yrs, Occu. Service
Residing at Survey No. 72,
Shivaji Park, Lane No.3,
Samarth Nagar, Sai Chowk
Plot No. 29, al Munib Manjil
New Sangvi, Pune,
Aundh Camp 411 027.
1b. Jubeda Banu Najir Solkar
Aged 58 yrs, Occu. Household
Residing at A.P. Karla,
Tal & Dist. Ratnagiri.
ARUN
RAMCHANDRA
SANKPAL
1c. Rahimatbi Sallauddin Majgaonkar
Digitally signed by
ARUN
RAMCHANDRA
Aged 50 yrs, Occu Service
SANKPAL
Date: 2025.03.18
20:04:21 +0530
Residing at 37/8, Shree G. Chambers
...Respondents
Kalikat Street, Fort,
Mumbai 400 001.
Mr. Bhushan Walimbe, a/w Mayank Tripathi and Vaishnavi
Nagargoje, for the Applicant.
Mr. Shashank Mangle, for the Respondent Nos.1(a) to 1(c).
1/22
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CORAM: N. J. JAMADAR, J.
RESERVED ON : 27th FEBRUARY 2025
PRONOUNCED ON: 18th MARCH 2025
JUDGMENT:
-
1. This revision is directed against a judgment and order dated
20th December, 2018 passed by the learned Principal District Judge,
Ratnagiri, in Misc. Civil Appeal No.15 of 2016, whereby the appeal
preferred by the respondents came to be allowed by setting aside an
order dated 21st July, 2015 passed by the learned Civil Judge, Senior
Division, Ratnagiri, in Misc. Civil Application No.80 of 2011
declining to condone the delay in filing an application to set aside
the ex parte decree passed in RCS/130/2009 and thereby allowed
the application to set aside the ex parte decree itself, and,
consequently, the ex parte decree in RCS/130/2009 was set aside
and RCS No. 130 of 2009 came to be restored to file.
2. The background facts leading to this application can be stated
in brief as under:
(a) The applicant had instituted RCS/130/2009 against
Ruksanabegam, the sister and predecessor-in-title of the
respondents, seeking a declaration that the properties, which were
purchased in the name of the said Ruksanabegam, his quondam wife,
were owned by him. The entire consideration to acquire those
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properties was paid by the applicant and he was in exclusive
possession of the said properties.
(b) Despite service of the summons, Ruksanabegam, the
defendant, did not appear. The suit proceeded ex parte. By a
judgment and order dated 17th June, 2010, the learned Civil Judge
partly decreed the suit inter alia declaring that the applicant -
plaintiff was the owner of the suit properties described in paragraphs
'1A' and '1B' of the plaint and restrained the defendant from causing
obstruction to the possession and enjoyment of the plaintiff over the
suit properties 1A and 1B. No relief was granted qua the suit
property 1C.
(c) The defendant preferred an application to set aside the ex
parte decree under the provisions of Order IX Rule 13 of the Code of
Civil Procedure, 1908 ("the Code"). It was submitted that the
defendant came to know about the judgment and decree in RCS
No.130/2009 on 9th August, 2011 and, thus, the application was
within the period of limitation. However, an objection was raised by
the Registry that there was delay in preferring the application to set
aside the decree. Thereupon, the defendant preferred an application
on 22nd September, 2011 seeking condonation of delay in filing the
application to set aside the decree.
(d) The said application was resisted by the plaintiff.
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(e) The learned Civil Judge recorded the evidence of the parties.
By a judgment and order dated 21 st July, 2015, the learned Civil
Judge was persuaded to reject the application observing that the
material on record indicated that the defendant had raised objection
to the mutation of the name of the plaintiff to the record of rights of
suit properties 1A and 1B. When the notice was served on her, she
had appeared before the revenue authority on 17 th February, 2011.
The proceedings before the revenue authority indicated that the
copies of the judgment and decree were received by her on 28 th
February, 2011. Thus, there was no sufficient cause for not
preferring the application within the stipulated period from 28 th
February, 2011 even if it was assumed that the defendant had not
known about the passing of the judgment and decree in RCS
No.130/2009 on 17th June 2010. Thus, the application came to be
rejected holding that no sufficient cause was ascribed.
(f) Aggrieved, the defendant preferred an appeal before the
District Court.
(g) By the impugned order, the learned Principal District Judge
allowed the appeal observing, inter alia, that there was no delay as
such in filing the application for setting aside the ex parte decree;
thus, the question of satisfactorily accounting for delay did not arise
and, in the facts of the case, a sufficient cause to set aside the decree
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in RCS No.130/2009 was made out. Resultantly, the decree was set
aside and the suit came to be restored to the file of the learned Civil
Judge.
3. Being aggrieved, the plaintiff has invoked the revisional
jurisdiction of this Court.
4. I have heard Mr. Walimbe, the learned Counsel for the
applicant, and Mr. Mangle, the learned Counsel for the respondent,
at some length.
5. At the outset, Mr. Walimbe would urge that the appeal before
the District Court against an order of rejection of application for
condonation of delay was itself not maintainable under Order XLIII
of the Code. That objection was raised before the District Court.
However it was negatived. But, Mr. Walimbe fairly submitted that, in
view of the decision of the Supreme Court in the case of Koushik
Mutually Aided Co-operative Housing Society vs. Ameena Begum
and another1, the said objection cannot be urged. In the said case,
the Supreme Court has observed that against the order passed under
Order IX Rule 13 of the Code rejecting an application for seeking
setting aside the decree passed ex parte, an appeal is provided.
When an application is filed seeking condonation of delay in filing an
application to set aside an ex parte decree and the same is dismissed
1 2023 SCC Online SC 1662.
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and, consequently, the petition is also dismissed, the appeal under
Order XLIII Rule 1(d) of the Code is maintainable. Thus, an appeal
only against the refusal to set aside the ex parte decree is
maintainable whereas if an order allowing such an application is
passed, the same is not appealable.
6. In view of the aforesaid enunciation of law the objection that
an appeal under Order XLIII of the Code was not maintainable
before the District Court need not detain the Court any further.
7. On the merits of the matter, Mr. Walimbe strenuously
submitted that the learned Principal District Judge approached the
controversy from a wholly incorrect perspective. The learned
Principal District Judge went on to observe that there was no delay
at all in preferring the application for setting aside the ex parte
decree by proceeding on an incorrect premise that the time to file an
application to set aside the ex parte decree would begin to run from
the date of receipt of the certified copies of the judgment and decree
in such suit. Though, the learned Principal District Judge quoted the
provisions contained in Article 123 of the Limitation Act, yet, the
said provision was completely misconstrued and it was held that the
limitation begins to run from the date of the receipt of the certified
copies. Such an incorrect impression of law, according to Mr.
Walimbe, vitiated the entire consideration.
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8. Had the learned Principal District Judge recorded that there
was some cause for the delay and condoned the same construing it
to be a sufficient cause, different considerations would have come
into play. The learned Principal District Judge surprisingly held that
there was no delay at all, urged Mr. Walimbe.
9. It was further submitted that since the appeal was against
rejection of application for condonation of delay, at any rate, the
learned Principal District Judge could not have allowed the
application to set aside the ex parte decree. Whether the decree was
required to be set aside for the non-service of summons or any other
sufficient cause was not at all considered by the Trial Court. Yet the
Principal District Judge granted the said relief in an appeal against
an order declining to condone the delay in seeking setting aside of
the ex parte decree. Therefore, the impugned order warrants
interference.
10. Mr. Mangle, the learned Counsel for respondent Nos.1(a) to
1(c), supported the impugned order. It was submitted that the
learned Principal District Judge was justified in observing that there
was no delay as the defendant had, in fact, filed an application
within a period of 30 days from the date of knowledge of the decree.
It was on account of the objection raised by the Registry of the Civil
Court that the application was beyond the period of limitation, by
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way of abundant caution, the defendant had filed application for
condonation of delay. In any event, the suit summons was sent on
the purported address of the defendant at Mumbai. Whereas the
defendant was residing at Pune and the notice of the proposed
change in the mutation entry in the revenue record was served on
the defendant at her address at Pune. Thereupon the defendant
promptly approached the revenue authorities. Thus, even if it was
assumed that there was some delay, in the peculiar facts of the case,
the application for condonation of delay could not have been
rejected by the Trial Court. The learned Principal District Judge thus
cannot be said to have committed any error in allowing the appeal,
submitted Mr. Mangle.
11. To being with, it is necessary to keep in view the nature of the
underlying dispute between the applicant and Ruksanabegam, the
deceased defendant. The applicant had three wives. Ruksanabegam
was the second. The applicant claimed that while the applicant and
defendant were cohabiting together, the applicant had acquired the
suit properties in the name of the defendant, nominally. The entire
consideration was parted with by the applicant. It was never agreed
between the applicant and defendant that suit properties were to be
acquired for the defendant. The possession of the suit properties
continued to remain with the plaintiff. As the defendant started to
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take undue advantage of the suit properties standing in her name,
the applicant was constrained to initiate action for declaration and
perpetual injunction.
12. Incontrovertibly, the suit proceeded ex parte. The cause title of
the plaint indicates that the defendant was then shown to be residing
at "Shreeji Chamber, 37/8, first floor, Calikat Street (Pot Market),
Near General Post Officer, V.T. Mumbai". Indisputably, the suit
summons could not be served on the defendant through the Bailiff.
After few attempts at service of summons on the defendant on the
same address, it seems that the plaintiff filed an application for
service of summons through RPAD and an affidavit of service was
filed to the effect that the postal envelope containing the summons
was returned with the remarks "unclaimed, returned to sender".
Thereupon, the Trial Court declared that the summons was duly
served and, thus, the suit proceeded ex parte. Eventually, a decree
came to be passed on 17th June 2010.
13. It appears that there is not much controversy as to the
proceedings before the Trial Court up to the date of passing of the
decree, save and except the correctness of the address of the
defendant, on which the summons was allegedly served.
14. After the passing of the decree, the defendant initially
approached the Trial Court seeking setting aside of the decree by
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filing an application under Order IX Rule 13 on 8 th September 2011
asserting that she had applied for certified copy of the judgment and
decree in RCS No. 130 of 2009 on 6 th August 2011 and certified
copies were supplied to her on 9 th August 2011 and thus the
application was within the statutory period of limitation. The
Registry of the Civil Court raised an objection, and, thereupon the
defendant filed an application seeking condonation of delay in filing
application for setting aside ex parte decree being CMA No. 80 of
2011.
15. The Trial Court was of the view that defendant had appeared
before the Revenue Authorities on 17th February 2011 pursuant to a
notice issued to her in connection with the application filed by the
applicant to mutate his name to record of rights of suit properties 1A
and 1B on the strength of said decree. Copies of the documents were
furnished to the defendant by the Revenue Authorities on 28 th
February 2011. Thus the defendant had knowledge about the passing
of the decree in RCS No. 130 of 2009 at least on 28 th February 2011.
Yet, the defendant, preferred the Application on 22 nd September
2011 and no cause was ascribed for condonation of delay.
16. The learned District Judge, on the other hand, returned a
finding that there was no delay as such. The proceedings before the
Revenue Authority do not indicate that the defendant was supplied
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copies of the Judgment and Decree passed in RCS No. 130 of 2009.
The defendant can be said to have learnt about the ex parte decree
on 9th August 2011, the day the certified copies were furnished to
her. Thus, filing of the MCA No. 80 of 2011 on 8 th September 2011
was within the stipulated period of limitation.
17. As noted above the thrust of challenge to the impugned order
passed by the learned District Judge was on the premise that the
learned District Judge equated the knowledge of passing of the ex
parte decree with the actual receipt of the certified copies of the
Judgment and Decree in RCS No. 30 2009.
18. Before adverting to deal with this submission, it may be
necessary to consider the material, which was arrayed against the
defendant, to contend that the defendant had knowledge of the
decree in the month of February 2011 itself.
19. The learned District Judge has carefully evaluated the said
material. It was inter alia noted that the notice of the Revenue
proceeding was addressed to the defendant at "Plot No. 21, Survey
No. 72, Shivaji Park, Lane No.3, Samarthnagar, Sai Chauk, Plot No.
29, Al Munib Manjil, New Sangvi, Aundh Camp, Pune". The
acknowledgment (Exhibit "28") also contained aforesaid address.
Another acknowledgment (Exhibit "29") also contained the same
address at Pune. The learned District Judge was of the view that the
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service of notice of Revenue proceeding on the defendant on the
aforesaid address at Pune could have been possible only upon the
said address being made available by the applicant to the Revenue
Authority. In contrast, the suit summons was shown to have been
served on the defendant on the address at Mumbai, which was stated
to be the residential address of her sister. This discrepancy, in the
view of the learned District Judge, was fatal to the applicant's case of
due service of the summons on the defendant.
20. The aforesaid approach of the learned District Judge appears
justifiable. It was the consistent case of the defendant that she was
working and residing at Pune, to the knowledge of the applicant. She
was not residing at the Mumbai address on which the summons was
allegedly served. In this backdrop, the issue of notice of proceeding
before the Revenue Authorities, under few months of the passing of
the decree, at the address of the defendant at Pune leads to an
inexorable inference that the applicant had known that the
defendant was residing at Pune and, yet, in the suit it was stated that
she was residing at Mumbai and multiple efforts were made to serve
the summons on the defendant at said address at Mumbai. This
factor, in my view, is of critical salience. The learned District Judge,
therefore, does not seem to have committed any error in drawing the
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inference about the due service of the summons on the defendant at
Mumbai address.
21. The fact that the defendant had appeared before the Revenue
Authority on 17th February 2011 and there also appears an
acknowledgment of receipt of the documents on 28 th February 2011,
was pressed into service on behalf of the applicant to draw home the
point that in the month of February 2011 itself the defendant had
knowledge about the decree.
22. The learned District Judge downplayed the aforesaid factor by
observing that the endorsement dated 28th February 2011 does not
make it clear as to which documents were received by the defendant,
especially whether the copies of the Judgment and Decree were
delivered to the defendant on 28 th February 2011. During the course
of evidence of the defendant also, it seems, it could not elicited that
on 28th February 2011, the defendant had received the copies of the
Judgment and Decree.
23. In this proceeding this Court may not delve into thickets of
facts. At best, it can be urged that the defendant had knowledge that
the applicant had applied for deletion of her name from the record of
rights of the suit properties and mutation of his name instead of
defendant. It could also be urged that the defendant ought to have
made further enquiries and instantaneously obtained the copies of
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the Judgment and Decree in RCS No. 130 of 2009 and filed an
Application for setting aside the decree. However, the substance of
the matter, especially in the backdrop of the nature of underlying
dispute, cannot be lost sight of.
24. Mr. Walimbe was justified in canvassing a submission that the
knowledge of the decree cannot be equated with the receipt of the
copies of Judgment and Order. It appears the applicant's case
regarding due service of summons on the defendant, in the face of
the service of notice of the revenue proceeding on the defendant at
her Pune address, had significantly weighed with the learned District
Judge in reckoning the date of receipt of the certified copies of the
Judgment and Order as the date of knowledge and returning a
finding that there was no delay. However, the aforesaid finding does
not vitiate the entire order of the learned District Judge.
25. As noted above, the Court cannot lose sight of the fact that
there is a serious cloud of doubt over the service of the Suit
summons on the defendant at Mumbai. The service of summons on
the defendant enters into an arena of uncertainty on account of the
service of the notice of revenue proceeding on the defendant at her
Pune address under few months of the passing of the decree. To add
to this, the underlying nature of the dispute indicates that rights of
the parties to valuable properties are the subject matter of lis. The
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applicant asserts that though the properties stood in the name of the
defendant, he was the real owner and the defendant was a nominal
holder of those properties. In this view of the matter, the aspect of
delay in seeking setting aside the decree ought to have been
considered by the Trial Court.
26. It is trite that an Application for condonation of delay should
receive liberal consideration. The Courts ordinarily lean in favour of
condonation of delay so as to advance the cause of substantive
justice. Thus, the term 'sufficient cause' receives liberal
consideration.
27. Moreover, the distinction in the case where the Court below
has exercised the discretion to condone the delay and where
Application for condonation of delay has been rejected, is also
required to be kept in view. Where the Court below condones the
delay, it is an instance of exercise of positive discretion. Ordinarily,
the Superior or Revisional Court ought not interfere with the exercise
of such discretion, unless the discretion has been exercised sans
material or borders on perversity.
28. A useful reference in this context can be made to the judgment
of the Supreme Court in the case of N. Balakrishnan V/s. M.
Krishnamurthy2 wherein the law was enunciated as under :
2 (1998) 7 SCC 123
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"9. It is axiomatic that condonati on of delay
is a matter of discretion of the court Section 5 of
the Limitation Act does not say that such discretion
can be exercised only if the delay is within a
certain limit. Length of delay is no matter,
acceptability of the explanation is the only
criterion. Sometimes delay of the shortest range
may be uncondonable due to want of acceptable
explanation whereas in certain other cases delay of
very long range can be condoned as the
explanation thereof is satisfactory. Once the court
accepts the explanation as sufficient it is the result
of positive exercise of discretion and normally the
superior court should not disturb such finding,
much less in reversional jurisdiction, unless the
exercise of discretion was on whole untenable
grounds or arbitrary or perverse. But it is a
different matter when the first cut refuses to
condone the delay. In such cases, the superior
court would be free to consider the cause shown
for the delay afresh and it is open to such superior
court to come to its own finding even
untrammeled by the conclusion of the lower court.
10. The reason for such a different
stance is thus:
The primary function of a court is to
adjudicate the dispute between the parties and to
advance substantial justice. Time limit fixed for
approaching the court in different situations in not
because on the expiry of such time a bad cause
would transform into a good cause.
11. Rules of limitation are not meant to destroy
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the right of parties. They are meant to see that
parties do not resort to dilatory tactics, but seek
their remedy promptly. the object of providing a
legal remedy is to repair the damage caused by
reason of legal injury. Law of limitation fixes a life-
span for such legal remedy for the redress of the
legal injury so suffered. Time is precious and the
wasted time would never revisit. During efflux of
time newer causes would sprout up necessitating
newer persons to seek legal remedy by
approaching the courts. So a life span must be
fixed for each remedy. Unending period for
launching the remedy may lead to unending
uncertainty and consequential anarchy. Law of
limitation is thus founded on public policy. It is
enshrined in the maxim Interest reipublicae up sit
finis litium (it is for the general welfare that a
period be putt to litigation). Rules of limitation are
not meant to destroy the right of the parties. They
are meant to see that parties do not resort to
dilatory tactics but seek their remedy promptly.
The idea is that every legal remedy must be kept
alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay
would result foreclosing a suitor from putting forth
his cause. There is no presumption that delay in
approaching the court is always deliberate. This
Court has held that the words "sufficient cause"
under Section 5 of the Limitation Act should
receive a liberal construction so as to advance
substantial justice vide Shakuntala Devi Jain V/s.
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Kuntal Kumari3 and State of W.B. V/s.
Administrator, Howrah Municipality4.
13. It must be remembered that in every case of
delay there can be some lapse on the part of the
litigant concerned. That alone is not enough to
turn down his plea and to shut the door against
him. If the explanation does not smack of mala
fides or it is not put forth as part of a dilatory
strategy the court must show utmost consideration
to the suitor. But when there is reasonable ground
to think that the delay was occasioned by the party
deliberately to gain time then the court should
lean against acceptance of the explanation. While
condoning delay the Could should not forget the
opposite party altogether. It must be borne in mind
that he is a looser and he too would have incurred
quiet a large litigation expenses. It would be a
salutary guideline that when courts condone the
delay due to laches on the part of the applicant the
court shall compensate the opposite party for his
loss."
29. Mr. Walimbe, the leaned Counsel for the Applicant, submitted
that no cause was ascribed for the delay and, therefore, the Trial
Court was justified in rejecting the Application for condonation of
delay. This submission is required to be appreciated in the light of
the fact that it was the consistent case of the defendant that the suit
summons was not duly served on the defendant and the applicant-
3 AIR 1969 SC 575
4 (1972) 1 SC 366
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plaintiff had falsely claimed that the defendant was residing at
Mumbai though the applicant had known that she was residing at
Pune. Thus the tenor of the application was that on account of such
sharp practice on the part of the applicant, the defendant had no
knowledge of the Judgment and Decree and learnt about the same
only after obtaining copies thereof. If this stand of the defendant
finds some credence, as is evident from the material on record, the
submission on behalf of the applicant that no cause was ascribed by
the defendant pales in significance.
30. Thus, to the extent of condonation of delay in filing of the
application to set aside the ex parte decree, this Court does not find
any reason to interfere with the impugned order. On an independent
analysis, this Court finds that the Trial Court was not justified in
rejecting the application for condonation of delay. The Trial Court
could have better exercised the discretion in favour of condonation
of delay.
31. However, the learned District Judge proceeded to set aside the
ex parte decree and restore the suit to file. This part of the impugned
order cannot be sustained. The reason is not far to seek.
32. First and foremost, what was determined by Trial Court was
the application for condonation of delay in filing application to set
aside the ex parte decree, only. As the Trial Court declined to
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condone the delay the next stage of consideration as to whether the
defendant could show a sufficient cause for setting aside the decree
did not arise, before the Trial Court. In that view of the matter, the
learned District Judge could not have embarked upon an enquiry as
to whether the ex parte decree was required to be set aside.
33. Mr. Walimbe, learned Counsel for the Petitioner placed
reliance on a Judgment of the Supreme Court in the case of C.
Prabhakar Rao & Anr Vs Sama Mahipal Reddy & Anr, 5 wherein, in a
revision against an order refusing to condone the delay, the High
Court while condoning the delay in filing an application for setting
aside ex parte decree had proceeded to set aside the ex parte decree
and restored the suit for further hearing, the Supreme Court held
that the High Court could not have proceeded to automatically
restore the Suit after setting aside the order of refusal of application
for condonation of delay. The Supreme Court observed that the
circumstances, justification, consideration and legal remedies for
"condoning the delay" on the one hand and "setting aside the ex
parte decree" on the other are different and must dealt with
independently. The aforesaid pronouncement is on all four with the
facts of the case at hand.
5 2025 SCC OnLine SC 495.
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34. I am, therefore, persuaded to partly allow the Revision
Application.
35. Hence the following order:
:ORDER:
(i) Application stands partly allowed.
(ii) Impugned order to the extent that it set
aside the ex parte decree in RCS No. 130 of 2009
and restores the said Suit to file stands quashed
and set aside.
(iii) The application for condonation delay,
i.e., MCA No. 80 of 2011 stands allowed.
(iv) The delay in filing the application for
setting aside the ex parte decree stands
condoned.
(v) The application for setting aside the ex
parte decree in RCS No. 130 of 2009 stands
restored to the file of the Trial Court.
(vi) The Trial Court shall hear and decide the
application for setting aside the ex parte decree
on its own merits and in accordance with law
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without being influenced by the observations in
the impugned order and the observations made
hereinabove, as expeditiously as possible.
(vii) No costs.
[N. J. JAMADAR, J.]
