Ss Builders vs Smt. Sita Rani Ahuja
2003 Latest Caselaw 963 Del

JUDGMENT

Mahmood Ali Khan, J.

IA Nos.7189/00 & IA No.11152/00

1. By this order an application of the plaintiff filed under Order 9 Rule 9 CPC for restoration of the civil suit which was dismissed in default on 5.8.1999 will be decided.

2. The plaintiff has filed a civil suit against defendants for specific performance of an agreement of sale and in the alternative for a decree for recovery of Rs.1,54,000 with interest. Relief for permanent injunction is also claimed. The suit was contested by the defendants. Issues were framed on 17.10.1997 and the suit was posted on 4.8.1999 for recording the evidence of the plaintiff, on 5th and 6th August, 1999 for recording the evidence of the defendant no.1 and on 7.8.1999 for recording the evidence of the defendants no.2 to 5. The matter was notified before the Joint Registrar on 6.2.1998 in the presence of the counsel for the plaintiff. Joint Registrar noticed that the list of witnesses had not been filed. He directed the parties to produce witnesses at their own responsibility and directed the case to be listed before the court on the date fixed for trial. In accordance with the order of the court dated 17.10.1997 the case was listed before the court on 4.8.1999 for recording the evidence of the plaintiff. Neither the plaintiff nor its counsel appeared at the hearing. The court directed the suit to be listed on 5.8.1999 which was a date for recording the evidence of the defendant. On 5.8.1999 the court dismissed the suit by passing the following order:-

There was no appearance on behalf of the plaintiff yesterday i.e. on 4.8.99. Even today also neither the plaintiff's counsel/plaintiff nor the plaintiff's witnesses is present.

3. Accordingly, the suit is dismissed in terms of Order XVII Rule 3 CPC for non-prosecution.

4. This led to the filing of the present application. In the application after narrating the sequence of events as above-mentioned it was alleged that the plaintiff was diligent in pursuing the matter but its partner Mr. T.C. Punjabi who is an ordinary resident of Mumbai suffered a stroke. He remained mostly confined to bed and was advised against traveling. The other partner of the plaintiff Smt. Sheela T. Punjabi was his wife who also remained busy in looking after her husband. Consequently, the partners of the plaintiff could not pay attention to the pending suit. Moreover, it was alleged, the trial dates were fixed in the year 1997. The counsel for the plaintiff could not carry forward their entry to his diary for the year 2000 (both the parties have stated that it is a typographical error and should be read as 1999). As a result the counsel and the plaintiff could not communicate with each other in relation to the suit which resulted in the non appearance of the plaintiff and the counsel before the court on 4.8.1999. It was further alleged that in July, 2000 Mr. T.C. Punjabi contacted the counsel in connection with the suit and thereafter the suit file was inspected on 18.7.2000 and it transpired that the suit had been dismissed in default. Hence, the present application. The application was filed by the counsel supported by his own affidavit and the copy of the diary of the year 1999. The application IA No.11152/00 was filed by the applicant plaintiff under Section 5 of the Limitation Act for condensation of delay of 355 days in filing the restoration application.

5. The application was opposed by all the defendants. Defendants no.2 to 5 in their reply have contended that the application is barred by time; it is misuse of the process of law and deserves to be dismissed with special cost; application is not signed by the plaintiff nor their affidavit and medical certificates have been filed; sufficient cause has not been shown for non appearance on 4th and 5th August, 1999 and; the suit was dismissed under Order XVII Rule 3 CPC which was an appealable order so the application under Order 9 Rule 9 CPC is not maintainable. Other allegations were also controverter. The application filed for condensation of delay was also similarly resisted by the defendants and it was alleged that sufficient cause has not been shown for the condensation of delay.

6. The defendant no.1 filed a separate reply to the two applications which is more or less on the same lines. The plaintiff's applications were contested by the defendant no.1 also on the grounds which are similar to the grounds pleaded in the reply of the defendants no.2 to 5 so need not be discussed in detail.

7. In the rejoinder to these replies the plaintiff reiterated his own case and has denied the case of the defendants non applicants.

8. The first question that arises for determination is whether the order dated 5.8.1999 was an order Under Rule 2 of Order 17 CPC or it was an order under Rule 3 of Order 17 CPC as appears to have been mentioned in the order. The order dated 5.8.1999 by which the suit was dismissed has been reproduced in the foregoing paragraphs. It is apt to reproduce Rule 2 and Rule 3 of Order 17 CPC as below:-

2.Procedure if parties fail to appear on day fixed:- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

Explanation: Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.

3.Court may proceed notwithstanding either party fails to produce evidence, etc:- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,-

a) if the parties are present, proceed to decide the suit forthwith, or

b) if the parties are, or any of them is, absent, proceed under Rule 2.

9. The Supreme Court in B. Janakiramaiah Chetty Vs. A.K. Parthasarthi and others, had succintively elaborated the scope and ambit of Rule 2 and Rule 3 of Order 17 CPC. It was observed in paragraphs 8,9 and 10 of the judgment as under:-

8.The explanation (to Rule 2) permits the court in its discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary power given to the court is to be exercised in a given circumstance. For application of the provision, the court has to satisfy itself that: a) substantial portion of the evidence of any party has been already recorded b) such party has failed to appear on any day; and c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9 Rule 3 the court may make an order directing that the suit be dismissed when neither party appear when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2,6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are "proceed with the case". Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not.

9. In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rule 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.

10. The crucial question in the Explanation is "where the evidence or a substantial portion of the evidence of a party." There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position The Court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision."

10. In accordance with the order dated 17.10.1997 the evidence of the parties was to be recorded in the case from 4th August, 1999 to 7th August, 1999. The plaintiff was to examine his witnesses on 4th August, 1999. Nobody appeared on behalf of the plaintiff on that date. The court adjourned the suit to the following date which was also fixed for recording evidence (of the defendants). On that date also the plaintiff and the counsel absented and were not present at the hearing. The court, therefore, dismissed the suit. It is clear that on 5.8.1999 when the suit was dismissed evidence of none of the parties had been recorded. It is also evident that the plaintiff has not taken time on 4.8.1999 for producing its evidence on 5.8.1999. The dismissal of the suit was not on merit on consideration of the evidence if any produced by the parties and available on record. Applying the principles of law laid down by the Supreme Court in the above cited case of B. Janakiramaiah Chetty (Supra) there is no escape from holding that the order dated 5.8.1999 was an order envisaged by Rule 2 of Order 17 CPC read with Order 9 Rule 9 CPC. Explanation to Rule 2 of Order 17 CPC was not attracted. This order by no stretch of reasoning could be under Rule 3 of Order 17 CPC. Accordingly, applying the principle in B. Janakiramaiah Chetty (Supra) it has to be held that the order of dismissal of the suit on 5.8.1999 was not on merit and was an order contemplated under Order 9 of the CPC. An application for restoration of the suit under Order 9 Rule 9 CPC, was maintainable. Arguments advanced on behalf of the counsel for the defendants to the contrary are not tenable and are accordingly repelled.

11. The second question which is crucial and more important is the reason given by the plaintiff for non appearance at the hearing on 5.8.1999 and whether sufficient cause is shown within the meaning of Section 5 of the Limitation Act for condensation of 355 days delay in filing the restoration application.

12. In the application the counsel for the plaintiff has taken the blame for the default on himself. It is alleged that the dates of trial fixed on 5.8.1999 to 7.8.1999 were by mistake not transferred to the diary for the year 1999. Counsel, therefore, could not attend the hearing on 4.8.1999 and 5.8.1999. Moreover, it is alleged that Mr. T.C. Punjabi, plaintiff was an ordinary resident of Mumbai. He suffered a stroke and remained mostly confined to bed. He was also advised against traveling. The partner of the plaintiff was his wife who also remained busy in looking after her husband. For this reason the partner of the plaintiff could not remain in touch with their counsel and he contacted only in July, 2000 when on inspection of the record it transpired that the suit had been dismissed in default, thereafter, the application was filed. This application is signed by the counsel and is supported by an affidavit of Mr. S.S. Jauhar, Advocate. The photocopy of the personal diary of the advocate for the relevant date has also been filed in support of the allegation that the entry from the previous orders diary were not carried forward in the new diary for 1999.

13. The arguments raised on behalf of the counsel for the defendants are firstly that the application is not signed by the partner of the plaintiff; copy of the partnership deed has not been filed to disclose as to how many partners were there and; affidavit of Mr. T.C. Punjabi has not been filed and medical certificates showing that he was sick and unable to travel or contact his counsel has not been filed. It is further submitted that there is delay of 355 days in filing the application and the medical certificates of the partners do not make out sufficient cause for condoning of such a long delay. Referring to the order dated 6.2.1998 it was argued that the affidavit of the counsel that he was not aware of the date of trial is factually incorrect. For all these reasons it was argued that the application should be dismissed.

14. The allegations made in the application read as a whole disclose that the case of the plaintiff was that the counsel failed to appear on 4th and 5th August, 1999 because of a mistake in not carrying forward the entry from the personal diary of 1998 to the diary of 1999, coupled with Mr. T.C. Punjabi falling sick, suffering stroke and not remaining in touch with the counsel. It is not the case of the plaintiff that the partner of the plaintiff was present when the dates of trial and recording of evidence were fixed on 17.10.1997. In fact it has not been disputed on behalf of the defendants that the partners of the plaintiff were ordinary resident of Mumbai. The medical certificate of Mr. T.C. Punjabi was not filed with the application but pursuant to the order of this court documents have been filed which show that Mr. T.C. Punjabi was undergoing treatment and investigation. It also showed that he was suffering from cerebrovascular hemorrhage or a stroke. He was undergoing these tests and treatment for a period from 1994 and was still continuing this treatment. Being resident of Mumbai it was but natural that the partners were dependant upon the counsel who was appointed to conduct the trial of the suit on their behalf. It is not pleaded in the application that the plaintiff were aware of the dates fixed on 4th and 5th August, 1999. The averments in the application clearly show that the counsel has taken the blame for the default in appearance on the crucial dates upon himself since he did not note down the dates of trial in his new diary of 1999. The copy of the relevant pages of the diary have been filed by him Along with his own affidavit.

15. It is not necessary that the application under Order 9 Rule 9 CPC should be signed by the party. But the application should be supported by an affidavit of the person who has special knowledge of the facts alleged in the application. The counsel's affidavit has corroborated the allegations made in the application. Counsel has alleged that he had forgotten to note down the dates of hearing in his diary of 1999. He has stated that he partner Mr. T.C. Punjabi contacted him in July, 2000 to know about the proceeding in the suit and then the file was inspected on 18.7.2000 and it was learnt that the suit had been dismissed in default. Therefore, non filing of the affidavit of Mr. T.C. Punjabi to my view will not bring any infirmity in the case pleaded in the application.

16. Counsel for the defendants have referred to Raj Kumar Kapur Vs. Krishan Kumar Kapur, where an application under Order 9 Rule 9 CPC was dismissed by the court since it was filed after a lapse of 16 months but the judgment would show that delay was not the lone factor for the dismissal of the application. More important was that the applicant had failed to explain the reasons for inordinate delay and the court found substance in the allegation of the opposite party that the application was filed with ulterior motive of causing delay in the proceeding. Counsel also cited P.K. Ramachandran Vs. State of Kerala & Anr, 1997 VII A.D SC 25 where the Supreme Court observed " law of limitation may harshly effect a particular party but it has to be applied with all its regour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds." These observations were also made when the court found that no reasonable, satisfactory or proper explanation was given for seeking condensation of the delay. Counsel for the defendants also cited Sh. Kishan Lal Vs. MCD, 1996 II A.D (Delhi) 477 where the court did not find sufficient cause being shown by the appellant for condensation of the delay in filing the appeal. Reason given for delay was that the counsel had never informed the plaintiff about the order of the trial court and he had not taken steps for issue of certified copies so the appeal could not be filed in time. In the view of the first Appellate Court the petitioners were not diligent in pursuing the case and slept over the matter, therefore, could not be allowed to take advantage of their own wrong. The court had also found that the petitioner had not disclosed as to on which date they had contacted the counsel to know the fate of their applications and the learned Appellate Court had given cogent reasons for declining to condone the delay in filing the appeal. The defendants also referred to Union of India Vs. S.P. Timber Industries 1996 III AD(Delhi) 584 where this court observed that even on a pragmatic and liberal approach being taken, the petitioner has not disclosed any sufficient cause for condensation of enormous delay in filing the application, therefore, court refused to condone the delay. He also relied upon Renu Narula Vs. Pratap Chit & Tr. (P) Ltd, 2000 Rajdhani Law Reporter 266 wherein it was held that it objection against arbitration award were filed late and delay was sought to be condoned on the ground of sickness of the objector then it must be supported by a true medical certificate and when during alleged sickness period the objector appeared in court it adversely reflected on the claim of sickness.

17. A perusal of the judgments cited on behalf of the plaintiff shows that they are on their own peculiar facts and will not advance the arguments of the defendants. Moreover the Supreme Court in Ram Nath Sao alias Ram Nath Sahu and others Vs. Gobardhan Sao and others, while considering the expression "sufficient cause", within the meaning of Section 5 of the Limitation Act. After referring to the judgment in State of West Bengal Vs. Administrator, Howrah Municipality, it was observed that the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party. The Supreme Court also referred to a case of N. Balakrishnan Vs. M. Krishnamurthy, where there was delay of 883 days in filing the application for setting aside the exparte decree for which application for condensation of delay was filed. The Supreme Court observed as under:-

"8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

The court further observed in paragraphs 9, 10, 11, 12 and 13 as under:-

9.It is axiomatic that condensation 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 a want of acceptable explanation whereas in certain other cases delay of a very long rang 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 the discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court 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 primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situations is 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 the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The 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 put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the 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 in 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. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality, .

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 the delay the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses."

18. In another case State of Jammu & Kashmir Vs. Dr. Ashok Kumar Gupta & Ors, the Supreme Court held that "Applying the pragmatic approach, the explanation for the delay needs to be considered and the cause of justice advanced and consideration angulated and accordingly, considered from that perspective the delay gets condoned."

19. In M.K. Prasad Vs. P. Arumugam, the Supreme Court in paragraph 9 held as under:-

In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well.

20. It cannot be said that the delay in filing the application for restoration was deliberate or there was any malafide on the part of the plaintiff in approaching the court late. The plaintiff's partner resided in Mumbai. There is documentary evidence to show that Mr. T.C. Punjabi was not keeping good health. Their dependence on their counsel to prosecute this case is understandable. There is explanation for their contacting the counsel in July 2000 for knowing about the suit. Counsel has filed his own affidavit and there is no reason to disbelieve him. The allegation made in the applications are duly corroborated by affidavit of counsel.

21. Applying the law laid down by the Supreme Court in the above cited cases to the facts of the present case it appears that in the application good and sufficient reasons have been given by the plaintiff and the counsel for non appearance at the hearing of the case on 4th and 5th August, 1999. It is well settled that the applicant is not required to explain each days delay individually rather if reading the explanation given by him as a whole makes out sufficient cause which prevented him from attending the hearing of a case when the suit was dismissed in default the court adopting a pragmatic approach and not a narrow view should allow the parties to get their dispute decided on merit and not shut out a party by adopting a hypertechnical approach. If the principles of law governing the condensation of delay under Section 5 of the Limitation Act, as laid down in the above cited cases by the Supreme Court are applied to the facts of the present case there is no escape from holding that the plaintiff had shown sufficient cause within the meaning of that Section and the delay should be condoned. Indeed the defendants had been put to greater inconvenience and it will delay the trial which may occasion further litigation expenses on the defendants. So the defendants may be adequately compensated by cost.

22. The result of the above discussion is that both the applications are allowed. Delay in filing application is condoned. The impugned order dated 5.8.1999 by which the suit of the plaintiff was dismissed in default of appearance of the plaintiff is set aside subject to payment of Rs.5000 as cost to the defendants. The suit shall be restored and re-registered at its old number. Parties shall appear before the court on 15th September, 2003.