Chattisgarh High Court

Ramkhilawan vs Sheikh Rahimuddin on 13 January, 2025

Author: Parth Prateem Sahu

Bench: Parth Prateem Sahu

1/6

2025:CGHC:1951
NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

MA No. 116 of 2024

1. Ramkhilawan S/o Dauwaram Satnami Aged About 55 Years R/o Demar,
Tahsil And District- Dhamtari Chhattisgarh
2. Ramlakhan S/o Dauwaram Satnami Aged About 45 Years R/o Demar, Tahsil
And District- Dhamtari Chhattisgarh.
3. Chandar Bai W/o Motiram Satnami Aged About 68 Years R/o Village Bodtara,
Tahsil Gurur, District- Balod Chhattisgarh.
4. Janki Bai W/o Chanduram Satnami Aged About 42 Years R/o Village
Dhanapuri Tahsil Gurur, District- Balod Chhattisgarh.
5. Savita S/o Dauwaram Satnami Aged About 36 Years R/o Village Demar,
Tahsil And District- Dhamtari Chhattisgarh.
6. Bishan Bai W/o Dilip Kumar, ( Daughter Of Dauwaram), Aged About 40 Years
R/o Devpuri Raipur Chhattisgarh.
7. Chandrautin Bai W/o Of Balaram ( Daughter Of Dauwaram ), Aged About 65
Years R/o Village Kandal, Tahsil And District- Dhamtari Chhattisgarh. ( Died )
Through Legal Heirs Are As Under
7.1 - Mukesh Kurrey S/o Balaram Satnami Aged About 40 Years R/o Village
Kandal, Tahsil And District- Dhamtari Chhattisgarh.
7.2 - Ravi Kumar Kurrey S/o Balaram Satnami Aged About 38 Years Village
Kandal Tahsil And District- Dhamtari Chhattisgrh.
7.3 - Indubai Daughter Of Balaram Aged About 36 Years R/o Village Kandal,
Tahsil And District- Dhamtari Chhattisgarh
7.4 - Durga Bai Daughter Of Balaram Satnami Aged About 34 Years R/o
Village Kandal Tahsil And District- Dhamtari Chhattisgarh.
... Appellant
Versus
• Sheikh Rahimuddin S/o Sheikh Shamsuddin Aged About 60 Years R/o
Baniyapara, Dhamtari, District- Dhamtari Chhattisgarh.
... Respondent

For Appellant : Mr. B.L. Sahu, Adv. and Mr. Rekhraj Baghel, PAWAN KUMAR Advocate JHA Digitally signed For Respondent : Mr. Syed Imtiyaz Ali, Advocate by PAWAN KUMAR JHA

Hon'ble Shri Justice Parth Prateem Sahu ORDER ON BOARD 13/01/2025

1. This appeal is filed under Section 43 Rule 1(d) of CPC questioning the

legality and sustainability of the order dated 23.09.2023 passed in an

application under Order 9 Rule 13 CPC, whereby the application under

Order 9 Rule 13 was dismissed on the ground of delay and laches.

2. Facts relevant for disposal of this appeal are that the respondent has

filed a civil suit bearing Civil Suit No. 9A/15 for specific performance of

contract. The suit filed by the appellant plaintiff was decreed in their

favour (ex-parte judgment and decree). The appellants herein thereafter

filed an application under Order 9 Rule 13 of CPC along with an

application under Section 5 of the Limitation Act seeking condonation of

delay in filing application under Order 9 Rule 13 and further prayed for

setting aside for ex parte judgment and decree dated 27.10.2017.

Application under Order 9 Rule 13 CPC as also application under

Section 5 of Limitation Act were replied by the respondent.

3. Upon considering the application under Section 5 of the Limitation Act,

learned trial Court came to the conclusion that the application is filed with

a delay of about 14 months from the date of judgment and decree, no

sufficient cause has been shown for condoning the delay in filing of the

application under Order 9 Rule 13 CPC and dismissed the application

under Section 5 of Limitation Act and accordingly the application under

Order 9 Rule 13 CPC was also dismissed to be barred by limitation.

4. Learned counsel for appellants would submit that the court below

committed error in not considering the grounds pleaded in the application

under Section 5 of the Limitation Act that the appellants were not having

knowledge of the date of proceedings before the trial court. He also

contended that in the application it is also specifically pleaded that after

getting notice of the execution proceedings they came to know about ex

parte judgment and decree and further that the applicants therein/

appellants were not having any knowledge of the proceeding, after

getting the knowledge of the ex parte judgment and decree, they have

obtained certified copy of the relevant documents and thereafter filed an

application under Order 9 Rule 13 CPC along with application under

Section 5 of the limitation Act. The grounds raised in the application

under Section 5 of the Limitation Act has not been properly appreciated

and arbitrarily dismissed the applications under Section 5 of the

Limitation Act as also the application under Order 9 Rule 13 CPC. He

also contended that in the civil suit, the relationship of Budhkunwar and

Dauwaram has been erroneously mentioned as mother and son whereas

they were wife and husband.

5. Learned counsel for respondent vehemently opposes the submission of

learned counsel for appellants and would submits that the ground

pleaded in the application under Section 5 of the Limitation Act is not

correct. After notice of the civil suit, the appellants herein/ defendants

were represented by the respective advocates. The appellants have filed

vakalatnama through their advocates who appeared continuously on

their behalf before the trial court on number of dates for about more than

one year and therefore the pleadings made in the application under

Section 5 of the Limitation Act that they were not having knowledge of

the proceedings of the civil suit is not correct. He contended that the

appellants have made an attempt to obtain the order on the application

under Section 5 of the Limitation Act as also application under Order 9

Rule 13 CPC by pleading wrong facts and therefore the trial court has

not committed any error in dismissing the application under Section 5 of

the Limitation Act by observing that no sufficient cause has been shown

for condoning the delay in filing an application under Order 9 Rule 13

CPC. The pleadings incorrect facts in the application is sufficient cause

for dismissing applications under Section 5 as also under Order 9 Rule

13 CPC.

6. I have heard learned counsel for the parties and also perused the record

of MJC as also the civil suit.

7. Perusal of record of civil suit would show that after issuance of notice in

the civil suit, the defendants therein have filed vakalatnama through their

advocate and defendants No. 1 to 3, 6 to 8 were represented by

advocate Mr. Amit Jha and defendants No. 4 & 5 were represented by

advocate Mr. Anil Gandhi. The advocates caused their appearance

before the trial court on 08.09.2015, defendant No. 8 therein has filed

vakalatnama through his advocate on 25.02.2016. The advocates

engaged by the defendants have sought time to file written statement till

13.05.2016 and the right to file written statement was closed on

16.06.2016. The advocates continuously even thereafter have appeared

on behalf of defendants till 18.07.2017, on which date both the

advocates have pleaded no instructions. The order sheet dated

04.12.2015, 08.01.2016 bear signature of Ramkhilawan ie., appellant

No. 1 and in the ordersheet dated 04.04.2016 there are signatures of

Ramkhilawan and Ramlakhan ie., appellants No. 1 & 2.

8. In the aforementioned facts of the case, when appellants No. 1 and 2

have caused their appearance before the trial court through their

advocate and further aforementioned ordersheets bear signature of

appellants, the pleadings made in the application under Section 5 of the

Limitation Act that they were not aware of the proceedings of the civil

suit, on the face of record, is incorrect and wrong. After causing

appearance, they chose not to appear before the trial court and after

about 14 months of passing of judgment and decree, application under

Order 9 Rule 13 has been filed.

9. Period of delay is not relevant and material for its condonation, however,

sufficient cause explanation is the relevant factor to consider whether the

delay in filing of proceedings can be condoned or not. From the grounds

pleaded in the application and also perusal of ordersheet which bears

signature of appellants No. 1 & 2 and further defendants/ appellants

herein were represented by the advocate before the trial court, would

show that they are having knowledge of proceedings of the civil suit.

However, in the application filed under Order 9 Rule 13 CPC and under

Section 5 of the Limitation Act, they have pleaded that they are having

no knowledge, which is not correct, hence, in the opinion of this Court,

no sufficient cause has been shown by the appellants in the application

under Section 5 of the Limitation Act for condonation of delay of about 14

months.

10. Hon'ble Supreme Court in the case of Mohd. Sahid and others vs.

Raziya Khanam (dead) through Lrs reported in (2019) 11 SCC 384

has observed as under:

"19. The order-sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of Original Suit No. 591 of 1979 and also about the disposal of Writ Petition (C) No. 19550 of 1985 and the appellants have filed application for condonation of delay with incorrect facts. Both the first appellate court and the High Court recorded concurrent findings that the appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay. We do not find any perversity or infirmity in the impugned order warranting interference and the appeal is liable to be dismissed."

11. From the aforementioned facts of the case as also the decision of

Hon'ble Supreme Court as above, in the opinion of this Court, the

appellants have failed to show sufficient cause for condonation of delay

in filing application under Order 9 Rule 13 CPC and therefore learned

court below has not committed any error in rejecting application under

Section 5 of the Limitation Act seeking condonation of delay and

consequently dismissing the application under Order 9 Rule 13 CPC as it

is barred by limitation, I do not find any illegality or infirmity in the order

impugned.

12. Accordingly, the appeal being devoid of substance is liable to be and is

hereby dismissed.

Sd/-