Page No.# 1/8 vs Krishna Sharma And 3 Ors
2021 Latest Caselaw 3167 Gua

                                                                 Page No.# 1/8

GAHC010124612020




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : CRP(IO)/117/2020

         HEERA SANCHETI
         PRESENTLY RESIDENT OF E 77, 2ND FLOOR, KIRTI NAGAR, NEW DELHI-
         110015.



         VERSUS

         KRISHNA SHARMA AND 3 ORS.
         R/O. SADGURU BHAWAN, (UCO BANK BUILDING), OPP. N.E. TV BUILDING,
         A.K. AZAD ROAD, REHABARI, DIST. KAMRUP (M), GUWAHATI-781008.

         2:VINOD KUMAR SHARMA
          R/O. SADGURU BHAWAN
          (UCO BANK BUILDING)
          OPP. N.E. TV BUILDING
         A.K. AZAD ROAD
          REHABARI
          DIST. KAMRUP (M)
          GUWAHATI-781008.

         3:DEEPAK SHARMA
          R/O. SADGURU BHAWAN
          (UCO BANK BUILDING)
          OPP. N.E. TV BUILDING
         A.K. AZAD ROAD
          REHABARI
          DIST. KAMRUP (M)
          GUWAHATI-781008.

         4:NIMISHA MATOLIA
          R/O. C/O. THANMAL DEEPAK MATOLIA
          173B
         VARDMAN NAGAR
                                                                                    Page No.# 2/8

              AJMER ROAD
              200 FEET BYE PASS
              JAIPUR (RAJASTHAN)

Advocate for the Petitioner   : MR. V K CHOPRA

Advocate for the Respondent : MR. B K JAIN




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          JUDGMENT

29.11.2021

Heard Mr. J Chopra, learned counsel for the petitioner and Mr. BK Jain, learned counsel for the respondent No.1.

[2] This is an application under Article 227 of the Constitution of India challenging the order dated 17.03.2020 passed by the Civil Judge No.2, Kamrup (M) Guwahati in Misc (J) Case No.752/2018 arising out of Money Suit No.60/2014, whereby the condonation application condoning the delay of 736 days in filing the application under Order 9 Rule 13 was allowed.

[3] For the purpose of disposal of the instant proceedings the relevant facts of the case are that the petitioner had filed the suit against the defendant Nos.1 to 5 for realization of an amount of Rs.38,43,468/- along with interest from the date of filing of the suit. Pursuant to the filing of the suit the petitioner who is the plaintiff was directed to take steps within a period of 7 (seven) days and the Court below fixed the suit for service report and written statement on 12.06.2019. Accordingly, the plaintiff took steps vide Registered Post with A/D upon the defendant Nos.1 to 4 and upon return of the acknowledgement due, the trial court vide an order dated 12.06.2014 having taken into consideration that the service upon the defendant Nos.1 to 4 were complete, directed that the suit shall proceed ex-parte against the said defendant Nos.1 to 4. As regards the defendant No.5 as no acknowledgement due card was Page No.# 3/8

received, the Court fixed the suit for service report upon the defendant No.5. On 05.01.2015 the AD card upon the defendant having returned and as the defendant No.5 was absent the Court below directed that the suit shall proceed ex-parte also against the defendant No.5. Thereupon, the records further shows that on 26.06.2015, the ex-parte judgment and decree was passed whereby it was decreed that the plaintiff was entitled to a decree for recovery of Rs.38,43,468/- from the defendant jointly and severely along with the cost of the suit.

[4] The records of the instant revision application further shows that pursuant to the decree so passed on 26.06.2015, an execution case being Money Execution Case No.45/2017 was filed before the Court of the Civil Judge No.2, Kamrup (M) at Guwahati and the Executing Court vide a notice dated 04.12.2017 asked the judgment debtors to show cause as to why the decreetal amount should not be realized by attachment of movable properties. The order sheet of the execution proceeding i..e, Money Execution Case No.45/2017 has been enclosed to the present revision application as Annexure-14 and a perusal of the order dated 02.08.2018 shows that two applications were filled by the respondent No.1 herein seeking setting aside of the ex-parte judgment and decree and one for condonation of delay under section 5 of the Limitation Act.

[5] To the said application for condonation of delay the petitioners herein filed the written objection both on law as well as on facts.

[6] I have also perused the contents of the said application seeking condonation of delay and in paragraph No.7 the respondent No.1 herein only states that on 06.08.2017 he came to learn about the judgment and decree dated 26.06.2015 and there is no mention whatsoever as to how the said respondent No.1/defendant No.4 came to know about the said judgment and decree. As the said paragraph No.7 is relevant for the purpose of adjudication of the present lis the same is quoted herein below:

"7. That the petitioner defendant No.4 comes to know regarding the judgment and order dated 26.06.2015 on 06.08.2017 and after having the knowledge of Page No.# 4/8

the same, the petitioner/defendant No.4 had applied for the certified copy of the judgment and decree dated 26.06.2015 on 07.08.2017 and obtained the same on 10.08.2017."

[7] Further to that, a perusal of the said application seeking condonation of delay shows that the certified copy of the judgment and decree was obtained on 10.08.2017 and it was only on 02.08.2018 that the application for setting aside the ex-parte judgment and decree under Order 9 Rule 13 of the CPC was filed along with the said application seeking condonation of delay. Although there are statements being made that the defendant No.4/respondent No.1 herein was suffering from medical ailments and thereafter his wife was suffering from medical ailments but no certificate in that regard was placed before the Court in support of the said applications for condonation of delay.

[8] To the said statement made in paragraph 7 of the application seeking condonation of delay, the petitioners replied to the same in paragraph 9 of their written objection specifically denying that the petitioner had no knowledge of the judgment and decree and the date 06.08.2017 has been adopted as per the sweet will of the respondent No.1 herein. The said paragraph 9 is quoted herein below:

"9. That with regard to the statement made in para 7 of the petition, it is submitted that in the instant Money Suit No.60/2014, the summon was served upon the defendant No.4 and therefore he ought to have filled the petition under 9 Rule 13 within 30 days from the date of decree dated 26.06.2015 i.e., by 26.07.2015. But he didn't. So there is a requirement for explaining the delay from 26.07.2015 and onwards and hence, the instant condonation petition would have been for condoning the delay of 1101 days i.e. since 16.07.2015 to 01.08.2018. But vide instant petition No.3031/2018 in Misc (J) Case No.752/2018, the delay was computed for only 736 days. Thus, there is no complete explanation for such delay and therefore the same is liable to be rejected.

In para No.7 of the instant condonation petition, petitioner/defendant No.4 has mentioned that date of knowledge of such ex-parte decree dated 26.06.2015 was 06.08.2017. But, he has nowhere stated that how and from what source did he come to know about the judgment and order dated 26.06.2015. the date 06.08.2017 on which Page No.# 5/8

the petitioner claims of having the knowledge of judgment and order dated 26.06.2015 is false and adopted as her his sweet will and is intended to save him to some extent from the barrier of limitation and hence, the same has nothing to do in the instant case in view of the facts that summon of the instant suit had duly been served upon the petitioner/defendant No.4 and as each and every day of delay remained unexplained, the petition is liable to be rejected.

For the sake of argument, just assuming and not accepting, as per Article 123 of the Limitation Act, a petition under Order 9 Rule 13 ought to have been filed by 05.09.2017 i.e., within 30 days from the date of knowledge, but the same is filed on 01.08.2018. So, the purported delay is of 330 days only i.e., since 05.09.2017 to 01.08.2018. Now, if we do the back calculation from 01.08.2018 for 736 days delay and 30 days as the period under limitation, the 25.06.2016 would come as the date of knowledge of ex-parte decree. It indicates that a different date i.e., 25.06.2016 was supposed to have been taken as date of knowledge but due to unavailability of true, just and sufficient reasons, a different date i.e., 06.08.2017 is chosen as per his sweet will. This clearly shows that the statement of petitioner/defendant no.4 with regard to the date of knowledge is a false statement. And also there is no explanation in the instant petition as to from what source or how did he got the knowledge of ex-parte decree dated 26.06.2015 on 06.08.2017. The proof that he obtained the knowledge on 06.08.2017 is the first thing to be proved for ascertaining that there are sufficient reasons for condoning the delay. As the number of days for condoning the delay are unsure, improper and is smelling of a deceitful act by the petitioner/defendant No.4, the instant petition is liable to be rejected with cost.

[9] That the Court below vide an order dated 17.03.2020 condoned the delay of 736 days in filing the petition under Order 9 Rule 13 solely on the ground that the first mode of service ought to have been through process server and only after receipt of the report of the process server and on consideration of exceptional circumstances substituted mode ought to have been taken into consideration and as such the service of summons upon the defendant No.4/respondent No.1 herein was not proper and consequently condoned the delay of 736 days in filing the petition under Order 7 Rule

13.

[10] I have heard the learned counsel for the parties at length.

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[11] Mr. J Chopra learned counsel appearing for the petitioner submits that the trial Court had very rightly accepted the service upon the respondent on the defendant Nos.1 to 4 to be complete vide its order dated 12.06.2014. He further submits that all the defendant Nos.1 to 4 stay under the same roof and they had due knowledge about the suit being filed as well as the summons being issued and the date fixed for their appearance but they did not appear before the Court for which the court had rightly passed the order on 12.06.2014. He further submits that a perusal of the application for condonation of delay would go to show that there is no mention whatsoever as to on what basis the respondent No.1 claims to have come to learn about the judgment and decree dated 26.06.2015 on 06.08.2017. He also submits that there is also no medical documents or anything produced to substantiate that the respondent No.1 was ill as well as his wife was ill as claimed in the petition. He submits that all these statements made in the condonation application are all false and frivolous and the said application has been filed at the behest of the other defendants who admittedly had knowledge about the summons being served upon them. He further submits that the perusal of the impugned order would also go to show that the Court below had allowed the condonation application on the ground of irregularity of service inasmuch as, the court below held that the service of summons ought to have been done through a process server and not through Registered Post with AD and he submits that the said aspect of the matter had no relevance whatsoever to the decision as regards condonation of delay for the period from the judgment and decree being passed till the filing of the application seeking condonation of delay under Order 9 Rule 13 of the CPC.

[12] On her other hand Mr. BK Jain, learned counsel for the respondent No.1 submits that service upon the respondent No.1 was wrongly accepted as service of notice upon respondent No.1 by the Court below on 12.06.2014 inasmuch as the service ought to have been made through process server and not through Registered Post with A/D. He further submits that it is an admitted fact that there was no signature in the AD card of the respondent No.1 though, however he admits that the defendant Nos.1 to 4 stays under the same roof. He further submits that the order Page No.# 7/8

impugned in the instant proceeding should not be inferred with in the interest of justice as the Respondent No.1 has a meritorious case and interfering with the said order would foreclose the respondent No.1's right to have an adjudication of the lis on merits.

[13] On a pointed query to both the counsel by this Court as to whether the execution proceedings are still continuing against the other defendants/judgment debtors, it was submitted on behalf of the petitioner that the execution proceedings have not been proceeded with on the ground that if the said execution proceedings are proceeded with, it shall affect all the judgment debtors including the respondent No.1 herein.

[14] The application seeking condonation of delay surprisingly do not mention how the defendant No.4/respondent No.1 came to learn about the judgment and decree dated 26.06.2015 on 06.08.2017 and it is absolutely silent. Article 123 of the Limitation Act stipulates that in the case of the summons having not been served, the period of limitation to file an application under Order 9 Rule 13 would be 30 days from the date of knowledge of the defendants and it is relevant therefore that the person applying for condonation of delay has to justify on what basis the said person had come to learn about the judgment and decree which, as already stated herein above is absolutely absent. A further perusal of the condonation application as stated herein above states about medical ailments of the petitioner as his wife but there is no supporting materials being placed before the Court to justify the said cause. The laxity on the part of the respondent No.1 is further apparent from the fact that he at his sweet will and time was taking the proceedings casually, though he knew about the necessity for filing of the said application within a period of 30 days from a perusal of paragraph No.10 of the said application seeking condonation of delay wherein, the counsel had advised him to file an application for setting aside the ex-parte decree along with a condonation application. In spite of that even taking into consideration what the respondent No.1 says to be correct then also he had taken more than 8 months for filing that application under Order 9 Rule 13 along with the application seeking condonation of delay. This conduct of the respondent No.1 does not inspire Page No.# 8/8

the confidence of this Court as regards there being any sufficient cause for condonation of delay under section 5 of the Limitation Act.

[15] Now coming to the impugned order it is strange that the Court below instead of adjudicating the delay in filing the application under Order 9 Rule 13 from the date of the decree till the date on which the said application was filed went on to adjudicate whether the service of notice of summons upon the defendant No.4/respondent No.1 herein was proper. There is no discussion or reasons assigned as regards how the respondent No.1 came to learn about the judgment and decree dated 26.06.2015 on 06.08.2017 nor there is any discussion as regards the delay in filing of the application for setting aside the ex-parte judgment and decree from the date of the knowledge till the date of filing of the application. Just on the basis that the summon was not properly served, the Court below condoned the delay which in my opinion not only suffers from failure to exercise jurisdiction vested upon it by law in the manner provided but also exercise of jurisdiction illegally and with material irregularity.

[16] The findings arrived at the by the Court below in the impugned order also suffers from perversity as it has failed to take into consideration material facts and the same shocks the conscience of this Court. Accordingly the impugned order is set-aside and quashed.

[17] With the above observations, the petition is allowed. No costs.

JUDGE

Comparing Assistant