Smt.Vidya Devi vs Smt. Ramwati Devi
2011 Latest Caselaw 371 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  CM.(M) 1735/2005


%                      Judgment delivered on: 21.1.2011


Smt. Vidya Devi                                  ...... petitioner.

                  Through: Mr. Dinesh Kumar Gupta, Adv.

                       versus

Smt. Ramwati Devi                         ..... Respondent.

                  Through: Mr. O.P. Aggarwal, Adv.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.   Whether the Reporters of local papers may
     be allowed to see the judgment?                          Yes

2.   To be referred to Reporter or not?                       Yes

3.   Whether the judgment should be reported
     in the Digest?                                           Yes


KAILASH GAMBHIR, J. Oral

*

1. By this petition filed under Article 227 of the

Constitution of India, the petitioner seeks quashing of the

order dated 4.9.2002, passed by the learned Additional

District Judge whereby the application of the petitioner filed

by her under Section 5 of the Limitation Act was dismissed.

2. Before I proceed to deal with the contentions

raised by the counsel for the parties, it would be appropriate

to state the brief background of facts of the case.

3. A suit for specific performance was filed by the

respondent against the petitioner seeking specific

performance of the agreement to sell dated 24.9.1987. The

said suit was decreed ex-parte by the learned trial court on

13.5.1988, but subsequently on the application moved by the

petitioner the said ex-parte decree was set aside by the

learned trial court vide order dated 1.11.1988. After the said

ex-parte decree was set aside, the petitioner had filed

written statement and thereafter the issues were framed by

the learned trial court. But when the case was fixed for

evidence of the respondent, the same was dismissed in

default by the learned trial court due to the non appearance

of the respondent vide order dated 20.8.92. A restoration

application was moved by the respondent to seek restoration

of the said suit and in the said application the petitioner had

appeared on 4.9.1995. Since nobody appeared from the side

of the respondent, the same resulted in dismissal of her

application. The respondent then moved application under

Order 9 Rule 9 CPC. The said application moved by the

respondent was restored by the learned trial court without

directing notice of the same upon the petitioner. On

24.7.1996 the petitioner was proceeded ex-parte in the said

application and the suit was restored by the learned trial

court on the same day. Once again on 14.8.1996, the suit

was dismissed in default and yet another application was

moved by the respondent on 22.8.96 seeking restoration of

the suit. The said suit was again restored by the learned

trial court on 4.12.96 and the matter was adjourned by the

learned trial court for ex-parte evidence. On 20.12.96, the

evidence was adduced by the respondent and the learned

trial court heard final arguments on the same day and

thereafter reserved the matter for orders. Vide

order dated 8.1.97, an ex-parte decree for specific

performance was passed by the learned trial court against

the petitioner and in favour of the respondent. After passing

of the said judgment and decree an execution application

was moved by the respondent and without directing any

notice upon the petitioner, the learned trial court directed

appointment of Local Commissioner through whom the sale

deed was executed and registered in favour of the

respondent. When the petitioner learnt about the said ex-

parte judgment and decree dated 8.1.97 on 24.12.1999, she

filed an application under Order 9 Rule 13 CPC along with

an application under Section 5 of the Limitation Act. The said

application filed by the petitioner under Section 5 of the

Limitation Act was dismissed by the learned trial court vide

impugned order dated 4.9.2002 and as a result of the

dismissal of the said application, the application moved by the

petitioner under Order 9 Rule 13 CPC was also dismissed.

4. Assailing the said order dated 4.9.2002, Mr. D.K.

Gupta, counsel for the petitioner contends that the

respondent has played fraud not only upon the petitioner but

upon the learned trial court as well, as the respondent

failed to take steps to serve the petitioner after the dismissal

of her case in default on various occasions. Counsel for the

petitioner also submits that the learned trial court has

adopted a hyper technical approach while dismissing the

application filed by her under Section 5 of the Limitation Act

instead of doing substantial justice between the parties.

Counsel for the petitioner also submits that the petitioner

explained sufficient reasons for not filing the condonation

application within the prescribed period of limitation, but yet

the learned trial court ignored the sufficient reasons given by

the petitioner in her said application. Counsel further

submits that reasonable opportunity was not granted by the

learned trial court to the petitioner to substantiate the

averments made by her in the said application by leading

evidence and therefore abrupt dismissal of the said

application is in gross violation of the principles of natural

justice and ultimately the same has resulted into causing

serious miscarriage of justice.

5. Opposing the present petition, Mr. Aggarwal

counsel for the respondent submits that the petitioner has

been most negligent in her conduct throughout the

proceedings i.e. before the learned trial court as well as in

filing the present petition. The contention of the counsel for

the respondent is that the petitioner failed to disclose any

sufficient reason for not filing the application under Section 5

of the Limitation Act within the prescribed period of

limitation from the date of her coming to know about the

dismissal of the suit. Counsel further submits that not only

there was a delay before the learned trial court but before

this court as well the petitioner has preferred the present

petition after a lapse of about three years period from the

date of passing of the said order dated 4.9.2002.

6. Elaborating his arguments further, counsel for

the respondent submits that the present petition was

preferred by the petitioner after another suit was filed by

the respondent claiming decree of possession and mesne

profits against the petitioner was decreed by the learned

trial court vide judgment and decree dated 15.4.2004, and

even after the appeal against the said judgment and decree

was preferred by the petitioner vide RFA No.617/2004.

Counsel thus submits that even the present petition would

not be maintainable on account of inordinate and

unexplained delay and laches on the part of the petitioner.

7. I have heard learned counsel for the parties at

considerable length and gone through the records.

8. In the application filed by the petitioner under

Section 5 of the Limitation Act and also in the application

under Order 9 Rule 13 CPC, the petitioner disclosed that she

had received the notice dated 15.12.99 on 24.12.99, which

was handed over by her to one Mr. R.S. Gulia, Advocate who

did not take any steps in the matter and had expired on

21.1.2000. The petitioner thereafter managed to get back the

notice and engaged a new counsel on 29.1.2000. In the

application it was further stated that the petitioner had got

the case file inspected in the first week of May 2000, and

thereafter she got filed the said applications on 8.5.2000.

Since the petitioner in her both the said applications failed

to give any reasons for not filing the application between

29.1.2000 till 8.5.2000, therefore the learned trial court did

not find any ground to condone the delay in filing the

application by the petitioner under Order 9 Rule 13 CPC.

The learned trial court also did not find any merit in the

explanation given by the petitioner that since due to the

dismissal of the said case on four occasions different

goshwara numbers were given, therefore, the same resulted

in not locating the file for a long period of four months. The

learned trial court further found that the petitioner did not

disclose the fact that for how long the lawyers remained on

strike during the said period of delay.

9. Under Article 123 of the Limitation Act, the

limitation for filing an application to set aside an ex-parte

decree is 30 days and the time begins to run from the date of

the judgment and decree or where the summons or notice

were not duly served from the date when the applicant has

derived knowledge of the decree. In the facts of the present

case, the learned trial court passed the ex-parte judgment and

decree dated 8.1.1997 while the said application under Order

9 Rule 13 and application under Section 5 of the Limitation

Act were filed by the petitioner on 8.5.2000. The petitioner

has claimed knowledge of the said ex-parte judgment and

decree dated 8.1.1997 on 24.12.99 when she had received

the notice from the court in the other case. Prior to this date

the petitioner has claimed total ignorance about passing of

the said ex-parte judgment and decree against her. From

the said date of notice dated 15.12.99, 30 days period came

to expire on 14.01.2000. In both the applications the

petitioner has failed to advance any explanation as to why

the said applications could not be filed by the petitioner

within the said period of 30 days from the date of the receipt

of the notice. The only explanation given by the petitioner is

that she had handed over the notice to Mr. R.S. Gulia,

Advocate who had expired on 21.1.2000. Even if the said

period is condoned, then also the petitioner should have

explained the delay from 29.1.2000 when she had engaged a

new advocate. Even from that date again no explanation has

come forth from the petitioner to explain the delay. The

petitioner has also not disclosed as to when the counsel for

the petitioner had taken steps to inspect the file and how

the counsel did not succeed in carrying out the inspection

of the said four files and how come the counsel for the

petitioner could only inspect the files in the first week of

May, 2000.

10. To seek condonation of delay under Section 5 of

the Limitation Act, the applicant should have explained each

day's delay or at least sufficient reasons for not filing the

application within the period of 30 days from the date of

the knowledge as prescribed under Article 123 of the

Limitation Act. Once having not given any sufficient or

plausible explanation to explain the delay, can it be still said

that the learned Trial Court should have exercised discretion

in favour of the petitioner to condone the delay. The Hon'ble

Apex Court in a catena of judgments has taken a view that

when substantial justice and technical considerations are

pitted against each other then cause of substantial justice

deserves to be preferred. The Apex Court in Special

Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma,

(1996) SCC 634, also held that the approach of the Court

should be pragmatic and not pedantic. There cannot be any

dispute with the above said legal position as it stands that the

technicalities cannot be given precedence over the substantial

justice and substantive rights of the parties. In every case the

endeavour of the court should be to decide the lis between

the parties on its merits. The courts are also required to see

whether any party to the suit has been adopting dilatory

tactics to cause unnecessary and inordinate delay in final

disposal of the case due to mala fide and oblique reasons.

The ex-parte judgment and decree in the present case was

passed by the trial court on 08.01.1997 and the petitioner

claimed knowledge of the said judgment and decree only on

24.12.99. It can be hardly believed that the petitioner

would not have known the said judgment and decree dated

8.1.97, when the other case filed by the respondent i.e.

suit for possession was being hotly contested by the

petitioner. Nevertheless, even if the explanation given by the

petitioner is accepted as correct, then she should have at

least taken prompt steps in filing the said applications to

seek setting aside of the ex-parte decree. It is one thing that

one is not able to give plausible and sufficient reasons for

delay while it is another thing if one does not offer any

explanation as to how and for what reasons delay has taken

place in filing the application. Here is a case where there is

no explanation on the part of the petitioner in not taking

timely steps to file the said applications. In the absence of

any such explanation given by the petitioner, the court was

not expected to assume on its own as what reasons could

have prevented the petitioner to file the said applications.

Although the petitioner was not seen crossing the bridge so

far her feeble case before the learned trial court was

concerned, yet another hurdle that came in the way of the

petitioner was the failure of the petitioner to explain the

reasons for not filing the present petition for a period of

about three years. Nowhere in the present petition the

petitioner has given any explanation for not challenging the

said order dated 4.9.2002, of which certainly the petitioner

cannot feign ignorance. The petitioner was fiercely

contesting the other case filed by the respondent i.e. suit for

possession and it is only when the decree in the suit for

possession was challenged by the petitioner in RFA

No.617/2004, the petitioner woke up from her deep slumber

to challenge the said order dated 4.9.2002 in the present

petition. There is thus evidently gross unexplained delay and

laches on the part of the petitioner in filing the present

petition.

11. Taking in view the totality of the facts and

circumstances of the case, this court is not inclined to

exercise jurisdiction in favour of the petitioner who not only

failed to act reasonably or to give any explanation for delay in

filing the application under Order 9 Rule 13 and Section 5 of

the Limitation Act before the learned trial court, but has

further failed to challenge the said order expeditiously or at

least within a reasonable period of time. The legal maxim

Vigilanibus, non dormentibus, jura subvenient which means

that equity aids the vigilant and not the indolent is an

undisputed axiom that eternal vigilance is the price of liberty

and if one sleeps upon his right, his right will slip away from

him. The present case is an ideal example where the delay

has proved to be catastrophic to the cause of equity and it is

expected of people approaching the portals of law to be alert

in espousing their cause.

12. In the light of the above, there is no merit in the

present petition, hence the same is hereby dismissed.

January 21, 2011                       KAILASH GAMBHIR, J
mg