Delhi High Court
Meenu Bhargava & Anr. vs Mukul P. Bhargava & Ors. on 3 June, 2011
Author: J.R. Midha
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM No.8716/2008 & FAO(OS)No.282/2008
Date of Decision : 3rd June, 2011
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MEENU BHARGAVA & ANR. ...Appellants
Through : Ms. Sadhna Chaudhry, Adv.
versus
MUKUL P. BHARGAVA & ORS. ...Respondents
Through : Mr. Anjana Gosain, Adv. with
Mr. Mukul P. Bhargava, Respondent
No.1 in person
Mr. Babu Kala, Adv. for Respondent No.2
Mr. B.P. Aggarwal, Adv. for Respondent
No.3.
CORAM :-
THE HON'BLE MS. JUSTICE GITA MITTAL
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
J.R. Midha, J.
1. The appellants have challenged the order dated 18th
January, 2008 whereby the appellants‟ application for setting
aside the ex-parte order dated 13th November, 2006 has been
dismissed by the learned Single Judge.
2. The facts giving rise to the present appeal to the extent
necessary for the purposes of the present case deserve to be
considered and read as follows.
The pedigree of the parties is as follows:-
Saubhagya Bhargava w/o M.P. Bhargava,
Plaintiff/respondent No.3
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Mukul Mayank Meenu Manju
Def-1/Resp-1 Def-2/Resp-2 Def-3/App-1 Def-4/App-2
Thus the appellants are the two daughters while
respondent nos. 1 and 2 are the two sons of the
plaintiff/respondent No.3 and her husband late Sh. M.P.
Bhargava.
3. Late M.P. Bhargava was owning the property bearing
No.A/11A, NDSE Part I, New Delhi (said property hereafter).
After his demise, his widow, Smt. Saubhagya Bhargava
(respondent No.3) instituted a suit bearing CS(OS)
No.590/2006 for partition, possession, permanent injunction
and rendition of accounts in respect of the said property
owned by late M.P. Bhargava.
4. On 23rd August, 2006, Smt. Meenu Bhargava (appellant
No.1/defendant No.3) was present. The plaintiff was
unrepresented and, therefore, the suit was dismissed for
default of appearance on behalf of the plaintiff.
5. On 28th August, 2006, IA No.9433/2006 of the
plaintiff/respondent No.3 seeking restoration of the suit under
Order IX Rule 9 of the Code of Civil Procedure was allowed in
the presence of defendant nos. 1, 3 and 4 while fresh
summons were directed to be issued for the service of
defendant No.2/respondent No.2. The defendant nos. 1, 3
and 4 were given time to file the written statement.
6. It appears that on 13th November, 2006, only defendant
No.1 had filed the written statement and was permitted time
to file additional documents. The defendant No.2 had
appeared through counsel and sought further time to file a
written statement. Unfortunately, there was no appearance
on behalf of defendant Nos.3 and 4 who were consequently
proceeded against ex-parte.
7. On 18th January, 2007, despite time having been given,
additional documents were not filed by defendant Nos.1 and
defendant Nos.2 had also not filed its written statement. So
far as the appellants/defendant nos. 3 and 4 are concerned,
Sh. Mukul Aggarwal, Advocate had put in appearance on their
behalf. The order records that these defendant nos. 3 and 4
had already been proceeded ex-parte.
8. It appears that on 28th February, 2007, a written
statement was filed by Smt. Meenu Bhargava-defendant
No.3/appellant No.1. The next date of hearing was scheduled
on 8th March, 2007. On this date, the learned Joint Registrar
was on leave. The order recorded on that date shows that the
appellants/defendant nos. 3 and 4 were duly represented by a
lawyer. Meenu Bhargava - appellant No.1/defendant No.3 was
also present in person.
9. On 4th May, 2007, the presiding officer of the Court was
on leave. The order sheet of the suit shows that again
appellant No.1 was present in person on this date as well.
10. On 6th August, 2007, the Joint Registrar recorded that
defendant No.3 had filed a written statement on 8th February,
2007 with a copy received by learned counsel for the plaintiff.
However, there was an objection by counsel for the other
defendants.
11. Sh. Mukul Bhargava, defendant No.1 in the suit and
respondent No.1 herein, filed an application under Order VI
Rule 17 of the Code of Civil Procedure on 2nd November, 2007
being I.A.No.12682/2007 seeking leave to amend the written
statement.
12. At this stage, Ms. Sadhna Chaudhry entered appearance
on behalf of defendant Nos. 3 and 4 (appellants herein). The
defendant nos. 3 and 4 filed IA No.13126/2007 dated 5th
November, 2007 purporting to be under Order IX Rule 13 of
the Code of Civil Procedure wherein they had stated as
follows:-
"It is respectfully submitted that both the
applicants/defendants no. 3 & 4 had already filed
their written statements which are on record and are
keenly interested in participating in the proceedings
of the case.
Due to inadvertence of the earlier counsel, the
defendants could not know about the ex-parte order
passed against them. The setting aside of the ex-
parte order will not cause inconvenience to any party
as they had already been supplied with the copies.
It is accordingly, requested that ex-parte order
dt. 13.11.06 passed against the applicants be kindly
set aside."
This application was accompanied by an affidavit of
Meenu Bhargava.
13. The appellants also filed a second application being IA
No.13127/2007 which is also dated 5 th November, 2007 under
Section 5 of the Limitation Act praying for condonation of
delay of 358 days for the following reasons:-
"1. That both the applicants/defendants no. 3 & 4
had already filed their written statements which are
on record and are keenly interested in participating
the proceedings of the case.
2. That both the defendants had been
continuously attending the proceedings of the court
either in person or through counsel but on account of
the inadvertence of their counsel, inspite of their
presence in the court, they were marked absent.
3. That it will result in grave injustice to the
applicants if they are deprived of an opportunity to
be heard in the matter.
4. That the defendants/applicants had been
diligently pursuing their case. Therefore, the ex-
parte order deserves to be set aside.
5. That as soon as the ex-parte order came to the
notice of the applicants, they have moved this
application."
14. These applications came up before the court on 18th
January, 2008. IA No.13127/2007 was rejected by the learned
Single Judge holding that the application seeking setting aside
of ex-parte order was filed by defendant nos. 3 and 4 after
about one year on 5th November, 2007. The learned Single
Judge was of the view that no reason had been given in the
application as to why the delay of one year occurred in filing
the application. It was also held that the application was
totally vague and was therefore dismissed without issuing
notice to the other side.
15. So far as IA No.13126/2007 is concerned, the learned
Single Judge again held that the application was vague; filed
after one year and did not explain any reason for the absence
of the defendants till the time they had filed the instant
application. This application was also dismissed.
16. It is noteworthy that on 18th January, 2008, the Court
granted time to the plaintiff for filing reply to IA
No.12682/2007 filed by defendant No.1 for amendment of the
written statement.
17. On 25th April, 2008, three applications filed by the
plaintiff being IA No.3927/2008 under Section 151 of the Code
of Civil Procedure; IA No.3928/2008 under Order VI Rule 17 of
the Code of Civil Procedure and IA No.3929/2008 under Order
XI Rule 11, 12 and 13 of the Code of Civil Procedure were
listed when Smt. Padma Choudhary, Advocate appeared for
defendant No.4.
18. The suit has been listed on several dates thereafter. Till
the time the appeal came to be listed before this court, it is an
undisputed position that the application of the plaintiff as well
as defendants for amendment of their respective pleadings
were still pending. Thus the suit was at the initial stages even
when the appeal was filed and pleadings in the suit had also
not been completed even qua the defendants who were
appearing.
19. So far as the order dated 18th January, 2008 is
concerned, it appears that the challenge thereto on behalf of
the appellants was filed as a civil revision petition on or about
11th April, 2008. Certain objections were marked by the
Registry and the same was returned for re-filing. The revision
petition was re-filed on 11th April, 2008 when an objection with
regard to the maintainability was raised by the Registry. The
following objection was added by the Registry:-
"No.3 - It should be stated as to how CM(M)/CR is
maintainable"
20. In answer to this objection, learned counsel for the
plaintiff had first made the following endorsement:-
"Since the impugned order has been
passed on the revisionist application under
Order IX R 7 Code of Civil Procedure and
not under Order IX Rule 13 of the Code of
Civil Procedure as wrongly stated in the
impugned order and the application,
therefore, revision is legally maintainable."
Thereafter, learned counsel for the appellants had stated
that "It is being converted in FAO(OS). Objection removed.
Refile." and the revision was re-filed as an appeal.
21. After its refiling, the Registry raised an objection on 30th
April, 2008 that a second set of the paper book was required
to be filed. This was for the reason that while a civil revision
is heard by a learned Single Judge, appeal against an order of
the Single Judge is heard by a Division Bench. Further
objections were raised by the Registry thereafter. On 30th
May, 2008, it was further pointed out that the appeal was
barred by 85 days.
22. In this background, the appellant has filed CM
No.8716/2008 under Section 5 of the Limitation Act praying
for condonation of delay in filing the present appeal pointing
out that the challenge had been laid in the form of a revision
petition by the appellants under the impression that the Court
had acted in exercise of its jurisdiction with material
irregularity and that the revision petition under Section 115 of
the Code of Civil Procedure was maintainable. The appellants
also explained that Order XLIII Rule 1 of the Code of Civil
Procedure did not provide an appeal against an order passed
under Order IX of the Code of Civil Procedure which
strengthened the perception of learned counsel that the
revision petition was maintainable against the impugned
order. It was only after filing of the revision petition, it was
revealed to the "deponent" that only an appeal under Section
10 of High Court Rules was permissible against the impugned
order.
23. It is noteworthy that this application was accompanied
by an affidavit of Smt. Sadhna Chaudhry, Advocate to the
effect that the contents of the application were true and
correct. The appellant points out that a revision petition may
be filed within 90 days of the passing of the impugned order
to be within limitation. However, the 30 day prescribed period
for filing the appeal had expired in the above circumstances.
Counsel for the appellants has stated that the delay in filing
the appeal was not malafide or intentional but was only due to
the above noticed reasons. The above applications came up
for hearing on 1st July, 2008 when notice was issued on the
appeal as well as on CM No.8716/2008. The same has
remained pending.
24. Meanwhile, in the suit, as late as on 17th October, 2008,
learned counsel for the respondent No.1 had stated that he
has to file further documents in the suit which would be filed
within six weeks.
25. Inasmuch as the matter was between close relatives,
mediation efforts were made during the pendency of the
appeal which however failed.
26. We have heard learned counsel for the parties both on
CM No.8716/2008 as well as the main appeal.
27. The learned counsel for the appellants submit that
appellants were not aware that they had been proceeded ex-
parte on 13th November, 2006. It is submitted that the
appellants were under the impression that the previous counsel
would have appeared before the Court on 13th November, 2006
and, therefore, the appellants continued to appear before this
court on 18th January, 2007, 8th March, 2007, 4th May, 2007, 6th
August, 2007 and 5th November, 2007, either in person or
through counsel. The appellants were under the impression that
their counsel was diligently prosecuting the case. It was further
submitted that no period has been prescribed under the
Limitation Act for setting aside of the ex-parte order and the
application for condonation of delay was filed as an abundant
caution. It was further submitted that the suit before the
learned Single Judge was a partition suit in which every party is
at par with the plaintiff and is required to pay court fees on his
share. It was urged that respondents Nos.1 and 2 had not filed
any objections to the application. The appellants have
contended that the application was made bonafide and
sufficient cause was made out by the appellants.
28. Before proceeding to deal with the factual matrix, we
may deal with the applicable legal principles. It is noteworthy
that so far as setting aside of ex-parte proceedings against
the defendant for his non-appearance are concerned, Rule 7
of Order IX of the Code of Civil Procedure permits that if the
defendant, at or before such hearing appears and assigns
'good cause' for his previous non-appearance, he may, upon
such terms as the Court directs as to costs or otherwise be
heard in answer to the suit as if he had appeared on the day
fixed for his appearance.
29. In case the filing of an application under Order IX Rule 7
of the Code of Civil Procedure is delayed, the legislature
permits condonation of delay by an appropriate application
under Section 5 of the Limitation Act which provides that any
appeal or any application, other than an application under any
of the provisions of Order XXI of the Code of Civil Procedure,
1908 (5 of 1908), may be admitted after the prescribed
period, if the appellant or the applicant satisfies the Court that
he had sufficient cause for not preferring the appeal or
making the application within such period.
30. A person proceeded ex-parte on a particular hearing, has a
right to participate in further proceedings of the case and he
cannot be denied the right to participate in the further
proceedings of the case. However, unless the ex-parte order is
set aside, such a person who has been proceeded ex-parte
cannot be relegated back to the initial stage and he will have to
join the proceedings from the stage he started appearing in the
Court.
31. Before considering the aspect of condonation of delay, it
may be useful to advert to the position which would emanate
upon a defendant being proceeded ex-aprte. In this regard, in
Finolex Cables Ltd. v. Finolux Auto Private Ltd., 2007
(35) PTC 680 (DEL) (DB), this Court held as under:-
"10. The legal position which is not in dispute
and which can be extracted from the conjoint
reading of the Supreme Court Judgment in the
case of Sangram Singh v. Election Tribunal,
Kotah AIR 1955 SC 425 and Division Bench
judgment of this Court in Lotus International
and Ors. v. Chaturbhujadas Karnani Textiles (P)
Ltd. 65 (1997) DLT 300 (DB) is this:
(a) if the defendant does not appear on the
date of hearing fixed by the court, the court
has power to proceed ex-parte against him;
(b) when the defendant joins and participates
in the proceedings at a stage when the plaintiff
is yet to examine his witnesses, the defendant
shall have right to cross examine the plaintiff's
witnesses, provided such cross examination
has not already been foreclosed. In that event,
the court has also the power to permit the
defendant to adduce evidence on his side. It
really depends as to at what stage the
defendant was set ex-parte under Order IX Rule
6 Code of Civil Procedure and at what stage he
has chosen to seek permission to participate in
the proceedings;
(c) the defendant can appear later and move
application for setting aside the ex-parte order
by showing sufficient cause for non appearance
on the date the defendant was proceeded ex-
parte. If sufficient cause is shown, the court can
set aside the ex-parte order and in that case it
shall restart the proceedings from the stage
when the defendant was proceeded ex-parte
on the premise that no proceedings were held
at all on the date when the defendant was
proceeded ex-parte and/or on subsequent
dates; and
(d) even if the defendant is not able to show
good cause, he has right to participate in the
proceedings from the stage when he started
appearing. However, in that event he has no
right to set back the clock and, therefore, if any
advantage accrued to the plaintiff on the dates
when the defendant had not appeared, that
advantage would continue to accrue in favour
of the plaintiff."
32. Let us now consider more material facts in the instant
case. The above narration of facts would show that the
defendants were proceeded ex-parte at a stage when the
defendant No.1 had, shortly after filing its written statement,
filed IA No.12682/2007 seeking amendment of its written
statement. The plaintiff's application for amendment of the
plaint being IA No.3928/2008 was also filed thereafter.
33. The defendant No.2 had on that very day been granted
time to file its written statement.
34. The plaintiff/respondent No.3 had filed a suit seeking
partition of property which had been owned by deceased
Sh.M.P. Bhargava.
35. While their two sons were arrayed as defendant Nos.1
and 2, their two daughters were arrayed as defendant Nos.3
and 4. It is trite that in a suit for partition, all parties are
considered as plaintiffs. We had put a query to learned
counsel appearing for the absent respondent nos. 1 and 2 as
to whether the appellants were precluded from asserting their
rights or claim by a separate suit even on date. Learned
counsel for the respondent Nos. 1 and 2 had very fairly
conceded the same. However, it was urged that in case the
appellants were to bring separate suits, they would be
required to pay court-fees thereon which they must in view of
the defence of respondent No.1. Therefore, till date, there
has been no adjudication at all on the rights of the parties and
the main suit is pending for consideration of applications for
amendment of pleadings.
36. Before considering the applications which were filed
before this Court, we may first advert to the delay in filing the
present appeal. Undoubtedly, the learned counsel for the
appellants has blundered in the matter. She has drawn no
distinction between an appeal and a revision petition even in
the drafting and has loosely used technical expressions in the
matter without any application of law.
37. The core submission on behalf of the appellants is that
they are housewives not conversant with the technical and
strict rules of procedures and have relied upon the guidance
given to them by learned counsel. It is a fact that appellant
No.1 has been appearing in this case in person on almost all
dates of hearing, before and after the ex-parte proceedings.
It is not disputed that she is a housewife.
38. A litigant is certainly not expected to know the nature of
remedy which he or she is required to invoke and reasonably
and normally depends upon the guidance given by
professional experts and learned counsel in this behalf.
Distinctions between revision petitions and appeals as well as
the statutory prescriptions of the period of limitation for the
invocation of a remedy are not known to a litigant.
39. In the instant case, there was another nicety involved.
The matter did not relate to a simple appeal under Order XLIII
of the Code of Civil Procedure. The case involves an inter-
court appeal to the division bench in the high court from an
order passed by a learned Single Judge.
40. Learned counsel for the appellants has very honestly
stated in the affidavit which she has filed in support of CM
No.8716/2008 that she was of the view that revision under the
Code of Civil Procedure was maintainable and that, it was only
after the filing of the revision petition, that she became aware
that only an appeal was maintainable. We may notice that
even in this application, learned counsel refers to Section 10
but not of any enactment. She makes a reference to „High
Court Rules‟.
41. The respondents have objected to the manner in which
the matter has been filed in the instant case. However,
during the course of the hearings while the matter remained
pending before us, it was conceded that learned counsel for
the appellants does not normally practice in this Court.
Undoubtedly, she was required to have taken better care in
drafting and filing of appeal and the applications. Even the
manner of removal of the office objections by the Registry is
not appropriate. However, these are all technical matters of
procedure. The main issue remains as to whether the
appellants; who are defendant nos. 3 and 4 in the suit should
be denied the right to lead their defence in such facts.
42. In G. Ramegowda vs. The Special Land Acquisition
Officer, Bangalore, AIR 1988 SC 897, the Court observed
as under:-
"7. .....There is, it is true, no general principle
saving the party from all mistakes of its counsel. If
there is negligence, deliberate or gross inaction or
lack of bona fides on the part of the party or its
counsel there is no reason why the opposite side
should be exposed to a time-barred appeal. Each
case will have to be considered on the
particularities of its own special facts. However, the
expression 'sufficient cause' in section 5 must
receive a liberal construction so as to advance
substantial justice and generally delays in preferring
appeals are required to be condoned in the interest
of justice where no gross negligence or deliberate
inaction or lack of bona fides is imputable to the
party seeking condonation of the delay."
43. An objection that a suit, appeal or an application is
barred by limitation is not a bar relating to the merits of the
case or the rights of the party. The impact thereof is that the
remedy to enforce a relief or invoke a remedy gets
extinguished.
44. It has been repeatedly held by the Supreme Court that
rules of procedure are handmaid to the ends of justice. In
Sangram Singh vs. Election Tribunal, Kotah, [1955] 2
SCR 1, it was held as under:-
"17. Now a code of procedure must be regarded as
such. It is procedure, something designed to
facilitate justice and further its ends: not a penal
enactment for punishment and penalties; not a
thing designed to trip people up. Too technical a
construction of Sections that leaves no room for
reasonable elasticity of interpretation should
therefore be guarded against (provided always that
justice is done to both sides) lest the very means
designed for the furtherance of justice be used to
frustrate it."
45. In Jai Jai Ram Manoharlal vs. National Building
Material Supply, Gurgaon, [1970] 1 SCR 22, the Court
held as under:-
"5. ......Rules of procedure are intended to be a
handmaid to the administration of justice A party
cannot be refused just relief merely because of
some mistake, negligence, inadvertence or even
infraction of the rules of procedure......"
46. In Kalipada Das vs. Bimal Krishna, AIR 1983 SC
876, it was observed that:-
"5. ...a procedural step which facilitates hearing of
the appeal, cannot impede access to justice."
47. In Bhag Singh vs. Major Daljit Singh, 1987 SCC
(Supp) (1) 685, reiterating the law laid down earlier by the
Supreme Court in Union of India vs. Ram Charan, [1964]
3 SCR 467 and approving the view taken in Premnath vs.
M/s. Kaudoomal Rikhiram, AIR 1962 P&H 446 and
Hanumandas vs. Pirthvi Nath, AIR 1956 All 677, the
Court held as under:-
"The Court while considering an application under
Section 5 of the Limitation Act will consider the facts
and circumstances not for taking too strict and
pedantic stand which will cause injustice but to
consider it from the point of taking a view which will
advance the cause of justice." (Emphasis supplied)
48. However the aforenoticed proposition is not an absolute
proposition of law. Even liberal application of the above
principles while interpreting sufficiency of cause shown or
good cause requires that the applicant must be able to
establish that no negligence nor inaction nor want of
bonafides could be imputed to the persons seeking exercise
of distinction. In this regard, in Shakuntala Devi Jain vs.
Kuntal Kumari, [1969] 1 SCR 1006, the Supreme Court
reiterated the observations in Krishna vs. Chathappan,
1890 ILR 13 Mad 269, which is as under:-
"7. ... Section 5 gives the courts a discretion which
in respect of jurisdiction is to be exercised in the
way in which judicial power and discretion ought to
be exercised upon principles which are well
understood; the words `sufficient cause' receiving a
liberal construction so as to advance substantial
justice when no negligence nor inaction nor want of
bonafides is importable to the appellant."
(Emphasis supplied)
49. The principles on this issue were laid down by the
Supreme Court in N. Balakrishnan vs. M. Krishnamurthy,
2008 (228) ELT 162 (SC), where it was held as under:-
"9. It is axiomatic that condonation 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 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 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...
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...."
"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.....".
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......"
(Emphasis supplied)
50. In Union of India vs. Ram Charan (Deceased) by
LRs., [1964] 3 SCR 467, the Hon‟ble Supreme Court
observed as under:-
"11. .....The provisions of the Code are with a view
to advance the cause of justice. Of course, the
Court, in considering whether the appellant has
established sufficient cause for his not continuing
the suit in time or for not applying for the setting
aside of the abatement within time, need not be
over-strict in expecting such proof of the suggested
cause as it would accept for holding certain fact
established, both because the question does not
relate to the merits of the dispute between the
parties and because if the abatement is set aside,
the merits of the dispute can be determined while,
if the abatement is not set aside, the appellant is
deprived of his proving his claim on account of his
culpable negligence or lack of vigilance....."
"12. It is true, as contended, that it is no duty of the
appellant to make regular enquiries from time to
time about the health or existing of the opposite
party, ..."
51. At this stage, we may refer to the reasons given by the
appellant in IA No.13127/2007 seeking condonation of delay
in filing IA No.13126/2007. The appellant No.3 has stated that
she has been appearing in the suit on all dates and was not
informed by the counsel of the proceedings. The ignorance of
the appellants is manifested from the fact that they were
represented by learned counsel whose presence is noted on
18th January, 2007 which was after they had been proceeded
ex-parte. Instead of guiding the appellants correctly, learned
counsel on 28th February, 2007 filed the written statement on
behalf of the defendant No.3. Again after such filing, the
counsel and defendant No.3 have appeared in person on 8th
March, 2007. Defendant No.3 has appeared on 4th May, 2007
as well.
52. The order dated 6th August, 2007 records that defendant
No.3 had filed a written statement on 8th February, 2007
which had been received by the plaintiff. However, an
objection was taken by counsel for defendant nos. 1 and 2 to
the effect that this written statement could not be taken on
record as defendant No.3 had been proceeded ex-parte vide
the order dated 13th November, 2006 and the ex-parte order
had not been set aside. In this background, it was only
thereafter that the appellants engaged Ms. Padma Chaudhry
as counsel and filed the said applications which were
dismissed.
53. The reason for the ex-parte proceedings as well as delay
in filing the applications for setting aside the order dated 13th
November, 2006 as well as the reason given for the delay
which has been occasioned in filing of the appeal has been
explained as fault and conduct of the counsel. We have
adverted to at length to the explanation given by counsel for
the appellant and her erroneous understanding of the law.
54. The fact that the appellants filed the written statement
within two weeks of being proceeded ex-parte and that the
appellant No.1 continued to appear in the suit on every date
of hearing lends substance to the explanation rendered by the
appellants for the delay which has been occasioned in filing
the application for setting aside the order dated 13th
November, 2006.
55. The law with respect to the condonation of delay is also
well settled. In Collector, Land Acquisition, Anantnag vs.
Mst. Katiji, AIR 1987 SC 1353, the Supreme Court was
posed with interpretation of the expression 'sufficient cause'.
The Court read in a touch of elasticity in the phrase and
observing the necessity of applying law in a meaningful
manner to subserve the ends of justice, summed up the
principles as under:-
"1. To condone, or not to condone, is not the only
question. Whether or not to apply the same
standard in applying the "sufficient cause" test to all
the litigants regardless of their personality in the
said context is another.
xxx
3. The legislature has conferred the power to
condone delay by enacting Section 5 (Any appeal or
any application, other than an application under any
of the provisions of Order XXI of the Code of Civil
Procedure, 1908, may be admitted after the
prescribed period if the appellant or the applicant
satisfies the court that he had sufficient cause for
not preferring the appeal or making the application
within such period) of the Indian Limitation Act of
1963 in order to enable the Courts to do substantial
justice to parties by disposing of matters on
'merits'. The expression "sufficient cause" employed
by the legislature is adequately elastic to enable the
courts to apply the law in a meaningful manner
which subserves the ends of justice-that being the
life-purpose for the existence of the institution of
Courts. It is common knowledge that this Court has
been making a justifiably liberal approach in
matters instituted in this Court. But the message
does not appear to have percolated down to all the
other Courts in the hierarchy. And such a liberal
approach is adopted on principle as it is realized
that:-
1. Ordinarily a litigant does not stand to benefit
by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the
very threshold and cause of justice being
defeated. As against this when delay is
condoned the highest that can happen is that
a cause would be decided on merits after
hearing the parties.
3. "Every day's delay must be explained" does
not mean that a pedantic approach should be
made. Why not every hour's delay, every
second's delay? The doctrine must be applied
in a rational common sense pragmatic
manner.
4. When substantial justice and technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim to
have vested right in injustice being done
because of a non-deliberate delay.
5. There is no presumption that delay is
occasioned deliberately, or on account of
culpable negligence, or on account of mala
fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious
risk.
6. It must be grasped that judiciary is respected
not on account of its power to legalize
injustice on technical grounds but because it is
capable of removing injustice and is expected
to do so."
(Emphasis supplied)
56. Even the aspect of a party relying on conduct of a
lawyer to explain the delay which has resulted in doing a
particular act has arisen before the Courts on several
occasions. On this aspect in the judgment reported at
Gopaldas Agrawal vs. Phoolchand Garg, 1990 MPLJ 440,
the Madhya Pradesh High Court (Gwalior Bench) held as
under:-
"7. In our system of administering justice there is
rarely a legal battle fought without the aid of
lawyers. The litigant places his fate along with
papers in the hands of a lawyer, placing implicit
reliance on advice received. Though ignorance of
law is never a permissible defence which may be
raised by a litigant, that factor cannot be lost sight
of while determining the questions of bona fides
and mala fides. Litigants do not know the niceties of
law. Invariably the Courts have been holding
litigants protected by legal advice given by lawyers
even if found to be mistaken, unless, of course,
there be a culpable negligence, deliberate inaction
or lack of bona fides imputable to the Advocate.
Counsel's default constitutes sufficient cause for a
litigant bona fide acting on it, has been the
consistent view of this Court. A diligent prosecution
of proceedings before a wrong forum in the absence
of mala fides has been accepted as a valid ground
for exclusion of time by Their Lordships of the
Supreme Court in Matadin v. A. Narayanan 1970
MPLJ 118 and by this Court in Rewaram v. State of
M. P. 1986 II MPWN 224." (Emphasis supplied)
57. The Supreme Court has also repeatedly cautioned the
courts against taking either too strict a view or too liberal a
view on issues on condonation of delay. It has been observed
that a middle path has to be adopted while taking a practical
view of the events. In this regard, reference can be made to
the observations of this Court in the judgment reported at
Ravindra Jain vs. Natraj Albums Industries (Pvt.) Ltd.,
64 (1996) DLT 572,:-
"34. It is well settled that while dealing with an
application under Section 5 of the Limitation Act, a
liberal and not pedantic approach has to be
adopted. A practical view of the events has to be
taken." (Emphasis supplied)
58. The Madras High Court in its judgment reported as
Biniyabai vs. Sikandar Khan, 1993 (0) MPLJ 738 relied
upon several decisions of the Supreme Court and held as
under:-
"16. The law is thus clear. While dealing with
applications seeking condensation of delay under
Section 5 of Limitation Act or for setting aside of
abatement under Rule 9 of Order 22 Civil Procedure
Code, the approach has to be liberal and judicious
guided by the paramount consideration of not
depriving a litigant ordinarily of adjudication of
rights on merits. Hypertechnical, too strict, and
pedantic approach as may cause injustice has to be
avoided. Ignorance of law is no defense in law but
the realities of life,' the Courts of law cannot afford
to overlook......"
59. We may at this stage also refer to the binding principles
laid down by the Supreme Court in Ram Nath Sao vs.
Gobardhan Sao, [2002] 2 SCR 77, the Supreme Court held
as under:-
"11. Thus it becomes plain that the expression
"sufficient cause" within the meaning of Section 5 of
the Act or Order 22 Rule 9 of the Code or any other
similar provision should receive a liberal
construction so as to advance substantial justice
when no negligence or inaction or want of bona
fides is imputable to a party. In a particular case
whether explanation furnished would constitute
"sufficient cause" or not will be dependent upon
facts of each case. There cannot be a straitjacket
formula for accepting or rejecting explanation
furnished for the delay caused in taking steps. But
one thing is clear that the courts should not proceed
with the tendency of finding fault with the cause
shown and reject the petition by a slipshod order in
over-jubilation of disposal drive. Acceptance of
explanation furnished should be the rule and
refusal, an exception, more so when no negligence
or inaction or want of bona fides can be imputed to
the defaulting party. On the other hand, while
considering the matter the courts should not lose
sight of the fact that by not taking steps within the
time prescribed a valuable right has accrued to the
other party which should not be lightly defeated by
condoning delay in a routine-like manner. However,
by taking a pedantic and hypertechnical view of the
matter the explanation furnished should not be
rejected when stakes are high and/or arguable
points of facts and law are involved in the case,
causing enormous loss and irreparable injury to the
party against whom the lis terminates, either by
default or inaction and defeating valuable right of
such a party to have the decision on merit. While
considering the matter, courts have to strike a
balance between resultant effect of the order it is
going to pass upon the parties either way."
(Emphasis supplied)
60. These very issues were considered in the judgment
reported as Perumon Bhagvathy Devaswom, Perinadu
Village vs. Bhargavi Amma (Dead) by LRs., 2008 (8)
SCC 321 and the following principles were authoritatively laid
down:-
"8. The principles applicable in considering
applications for setting aside abatement may thus
be summarized as follows :
(i) The words "sufficient cause for not making the
application within the period of limitation" should be
understood and applied in a reasonable, pragmatic,
practical and liberal manner, depending upon the
facts and circumstances of the case, and the type of
case. The words `sufficient cause' in section 5 of
Limitation Act should receive a liberal construction
so as to advance substantial justice, when the delay
is not on account of any dilatory tactics, want of
bonafides, deliberate inaction or negligence on the
part of the appellant.
(ii) In considering the reasons for condonation of
delay, the courts are more liberal with reference to
applications for setting aside abatement, than other
cases. While the court will have to keep in view that
a valuable right accrues to the legal representatives
of the deceased respondent when the appeal
abates, it will not punish an appellant with
foreclosure of the appeal, for unintended lapses.
The courts tend to set aside abatement and decide
the matter on merits, rather than terminate the
appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is
not the length of delay, but sufficiency of a
satisfactory explanation.
(iv) The extent or degree of leniency to be shown by
a court depends on the nature of application and
facts and circumstances of the case. For example,
courts view delays in making applications in a
pending appeal more leniently than delays in the
institution of an appeal. The courts view
applications relating to lawyer's lapses more
leniently than applications relating to litigant's
lapses. The classic example is the difference in
approach of courts to applications for condonation
of delay in filing an appeal and applications for
condonation of delay in refiling the appeal after
rectification of defects.
(v) Want of `diligence' or `inaction' can be
attributed to an appellant only when something
required to be done by him, is not done. When
nothing is required to be done, courts do not expect
the appellant to be diligent. Where an appeal is
admitted by the High Court and is not expected to
be listed for final hearing for a few years, an
appellant is not expected to visit the court or his
lawyer every few weeks to ascertain the position
nor keep checking whether the contesting
respondent is alive. He merely awaits the call or
information from his counsel about the listing of the
appeal."
(Emphasis supplied)
61. In the instant case, the contesting respondents before
this Court are unable to point out any malafide, negligence or
deliberation on the part of the appellants for the delays which
have been occasioned in the instant case or for their non-
appearance on 13th of November, 2006. They have dealt with
at length on the conduct of counsels. In the light of the
principles laid down by the Supreme Court in Ram Nath Sao
(Supra) and Peruumon Bhagvathy Devaswom (Supra), it
has to be held that want of diligence or inaction or malafide
cannot be attributed to the appellants and that their
applications rest on pleas of lawyer‟s lapses.
62. Learned counsel for respondent No.1 has placed reliance
on the principles laid down by the Supreme Court in Arjun
Singh vs. Mohindra, AIR 1964 SC 993, where it was held
that a person proceeded ex-parte on a particular hearing, has a
right to participate in further proceedings of the case and he
cannot be denied the right to participate in the further
proceedings of the case. However, unless the ex-parte order is
set aside, such a person who has been proceeded ex-parte
cannot be relegated back to the initial stage and he will have to
join the proceedings from the stage he started appearing in the
Court.
63. Learned counsel for the respondent has also placed
reliance on Babu Ram vs. Devinder Mohan Kaura, AIR
1981 Delhi 14. In this case, it was held in para 22 of the
judgment by a learned Single Judge seized of the revision
petition that there is no universal rule that every mistaken
advice given by the counsel constitutes sufficient cause or
constitutes „good faith‟. The court stated that every case
would depend on its own facts and further that in some cases,
a bonafide opinion given by a counsel can constitute sufficient
cause. The court held that if an opinion is given after taking
due care and attention, then the delay amounts to „good
faith‟ as well as „sufficient cause‟. However, if the opinion
was given off-hand without taking the trouble of knowing the
law on the point it may not constitute sufficient cause and/or
good faith.
64. In the case in hand, the counsel for the appellant has
explained that she had examined the Code of Civil Procedure
which governs the proceedings in a civil suit normally. The
counsel did examine the provision of Order 43 of the Code of
Civil Procedure which provides for an appeal against an order
in the suit. However, finding that the order under challenge
was not appealable under Order 43 of the Code of Civil
Procedure, counsel placed reliance on the earlier existing
provision of Section 115 of the Code of Civil Procedure and
filed the petition which was initially entertained by the
Registry. As noticed above, in the instant case, no fault is
attributable to the appellants who have acted bonafide. It
cannot be held that their actions based on legal advice
suffered from bad faith and that they would be disentitled to
exercise of the discretion with regard to condonation of delay.
65. So far as the delay in filing is concerned, learned counsel
has clearly accepted the fault thereof. The record of the
instant case bears out these facts.
66. The Supreme Court has observed that when no
negligence or inaction or want of bonafide can be imputed on
the defaulting party, acceptance of the furnished explanation
should be the rule and it is the refusal which needs to be an
exception.
67. Given the fact that we are concerned with a suit for
partition of the properties owned by the father of the
contesting respondent nos. 1 and 2 and the appellants in
which the pleadings were not also complete on the date of
filing of the applications, no prejudice would certainly result to
the contesting respondents in case the present application
was allowed. On the contrary, defendant No.2 was granted
time to file his written statement and the plaintiff and
defendant No.1 filed applications for amendment of their
pleadings.
68. We are persuaded to accept the explanation rendered
on behalf of the appellants for the reason that appellant No.1
has continued to appear in person in the case even after
having been proceeded ex-parte on 13th November, 2006.
69. Learned counsels for the respondent nos. 1 and 2 are
unable to point out any lack of bonafides which ensures to the
appellants in permitting ex-parte proceedings against
themselves.
70. The very fact that the appellants filed the written
statement on 8th February, 2007 also substantiates the
bonafides pleaded by the appellants.
71. We find that the learned Single Judge was of the view
that the appellants had failed to explain the entire period up
to the date of filing of the application. However, as noticed
above, the appellants continued to appear in the case either
in person or through counsel. Consequently, the period which
lapsed after they were proceeded ex-parte till the date of
filing of the application is explained by the record of the case
and their submission that they had acted diligently and as per
legal advice.
72. The plaintiff who is arrayed as respondent No.3 has
clearly stated that she has no objection to the condonation of
delay in filing of the appeal as well as allowing
I.A.Nos.13126/2007 and 13127/2007, and setting aside of the
ex-parte proceedings.
73. The position in the present case appears as follows :-
(i) The suit is still at the initial stage and, therefore, it
would be in the interest of justice that all the
parties are heard before deciding the matter.
(ii) In partition suits, the decree passed enures not
merely for the benefit of the plaintiff but for the
benefit of the defendants as well. It is because of
this that in a partition suit, everybody including the
defendants are in the position of the plaintiff.
(iii) The expression "good cause" in Order IX Rule 7 of
the Code of Civil Procedure and "sufficient cause"
in Section 5 have to be given liberal construction
so as to advance substantial justice.
(iv) The primary function of the court is to advance
substantial justice which in this case would be served
by setting aside the ex-parte order dated 13th
November, 2006 and by condoning the delay.
(v) Refusing to set aside the ex-parte order and to
condone the delay would result in the appellants
not being heard and the cause of justice may be
defeated.
74. For all the aforesaid reasons, the appeal is allowed.
The delay in filing of this appeal as well as the delay in filing
of the application for setting aside of the ex-parte order by
the appellants is condoned. The order dated 13th November,
2006 directing ex-parte proceedings against the appellants is
set aside. The respondent No.1 shall remain bound by the
undertaking recorded in the order dated 21st December, 2010.
J.R. MIDHA, J
GITA MITTAL, J
JUNE 3, 2011
