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2000 DIGILAW 705 (PNJ)

Bhairo Parshad v. Karam Chand

2000-07-11

V.M.JAIN

body2000
JUDGMENT V.M. Jain, J. - This is a revision petition against the judgment dated 30.8.1997 passed by the District Judge, dismissing the application under Section 5 of the Limitation Act, seeking condonation of delay in filing the appeal and resultantly dismissing the appeal as time barred. 2. The facts which are relevant for the decision of the present revision petition are that Karam Chand, plaintiff, had filed a suit for declaration against the defendants, namely, Bhairo Parshad, Smt. Bado Devi and Smt. Nimbo. In the said suit, the defendants were proceeded against ex parte. After recording ex parte evidence, the learned trial Court, vide ex parte judgment and decree dated 2.4.1994, decreed the suit of Karam Chand, plaintiff. Aggrieved against the said ex parte judgment and decree dated 2.4.1994, Bhairo Parshad, defendant, filed an appeal before the District Judge and since the appeal was time barred, he also filed an application under Section 5 of the Limitation Act, seeking condonation of delay in filing the appeal. The said application was contested by the plaintiff-respondent No. 1 by filing written reply. On the pleadings of the parties, the learned District Judge framed the following issues :- " 1. Whether delay in filing the appeal is liable to be condoned for the reasons given in the application ? OPA 2. Relief." 3. The parties were given opportunity to produce evidence in support of their respective contentions. After hearing both sides, the learned District Judge decided Issue No. 1 against the defendant-appellant, Bhairo Parshad, and it was held that no case was made out for condoning the delay in filing the appeal. In the result, the learned District Judge dismissed the application of Bhairo Parshad, defendant-appellant, under Section 5 of the Limitation Act, seeking condonation of delay in filing the appeal. Resultantly, the appeal was also dismissed as time barred, vide judgement dated 30.8.1997. Aggrieved against this judgement of the learned District Judge, Bhairo Parshad, defendant, filed the present revision petition in this Court. 4. Notice of motion was issued. Trial Court record was summoned. Counsel for the parties have been heard and record perused. 5. Resultantly, the appeal was also dismissed as time barred, vide judgement dated 30.8.1997. Aggrieved against this judgement of the learned District Judge, Bhairo Parshad, defendant, filed the present revision petition in this Court. 4. Notice of motion was issued. Trial Court record was summoned. Counsel for the parties have been heard and record perused. 5. The learned counsel appearing for the defendant-petitioner submitted before me that it was only on 16.5.1994, that the petitioner came to know about the ex parte judgment and decree dated 2.4.1994 when he received a letter from his counsel before the Financial Commissioner at Chandigarh and thereupon he filed the appeal on 1.6.1994 alongwith an application seeking condonation of delay in filing the appeal. It was submitted that the limitation for filing the appeal would be 30 days from the date of the knowledge when the ex parte judgment and decree was passed, in view of the provisions of Article 123 of the Limitation Act and that being so, the appeal was filed within time and in any case the delay in filing the appeal was liable to be condoned. Reliance was placed on Amarjit Singh v. Harnam Singh, 1990 PLJ 22, Angrez Singh and another v. Sadha Singh and others, 1978 PLJ 308 and Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 Supreme Court 1353. It was further submitted that in the present case the counsel appearing for the defendants in the trial Court had pleaded no instructions on 25.11.1993 and the defence of the defendants was struck off and the case was adjourned to 10.12.1993, on which date no one had appeared on behalf of the defendants and the defendants were proceeded against ex parte. It was submitted that when the counsel appearing for the defendants had pleaded no instructions before the trial Court on 25.11.1993, the Court was required to issue notice to the defendants. Reliance was placed on Tahil Ram Issardas Sadarangani and others v. Ramchand Issardas Sadarangani and another, AIR 1993 Supreme Court 1182. 6. On the other hand, the learned counsel appearing for plaintiff-respondent No. 1 submitted before me that in the present case, the defendants had put in appearance in the suit and had filed the written statement and reply to the ad-interim injunction application and thereafter the issues were framed on 25.2.1991. 6. On the other hand, the learned counsel appearing for plaintiff-respondent No. 1 submitted before me that in the present case, the defendants had put in appearance in the suit and had filed the written statement and reply to the ad-interim injunction application and thereafter the issues were framed on 25.2.1991. It was further submitted that thereafter the plaintiff had led his evidence and had closed the evidence in the affirmative on 26.4.1993 and thereafter the case was adjourned for defendants evidence to 23.7.1993, on which date no evidence of the defendants was present and the case was adjourned to 4.10.1993 for defendants evidence, on which date again no evidence of the defendants was present and the case was adjourned to 25.11.1993 for the defendants evidence at their own responsibility subject to payment of Rs. 50/- as costs. It was further submitted that on 25.11.1993, neither any evidence of the defendants was present nor the adjournment costs of Rs. 50/- was tendered. Infact, the learned counsel appearing for the defendants had shown his inability to pay the adjournment costs and had stated that he had no instructions to appear on behalf of the defendants and under these circumstances, the defence of the defendants was struck off under Section 35-B C.P.C. on 25.11.1993 and the case was adjourned to 10.12.1993 for arguments. It was further submitted that on 10.12.1993, no one had appeared on behalf of the defendants and accordingly the defendants were proceeded against ex parte. It was submitted that on these facts, there would be no question of the defendants having knowledge about the ex parte judgment and decree dated 2.4.1994 only on 16.5.1994, when they received a letter from their counsel before the Financial Commissioner at Chandigarh. It was further submitted that it was the duty of the defendants to have enquired about the date from their counsel at Sirsa and there was no sufficient cause to condone the delay. Reliance was placed on Gram Panchayat, Malout v. Prem Singh, 1998(1) PLJ 552, P.K. Ramachandran v. State of Kerala and another, JT 1997(8) SC 189, Kesar Singh v. Hans Raj and others, 1995 HRR 392 and Paramjit Singh v. Sandeep Kaur, 1992(2) PLR 24. It was further submitted that merely because the counsel appearing for the defendants had shown his inability to tender the conditional costs of Rs. It was further submitted that merely because the counsel appearing for the defendants had shown his inability to tender the conditional costs of Rs. 50/- on 25.11.1993 and had stated that he had no instructions to appear on behalf of the defendants, no case was made out for issuing any notice to the defendants. Reliance was placed on a Division Bench judgment of this Court in the case reported as Suresh Kumar v. Smt. Daryai and others, 1996(3) Punjab Law Reporter 379. 7. After hearing the counsel for the parties and perusing the record, I am of the opinion that there is no merit in this revision petition and the same is liable to be dismissed. 8. As referred to above, Karam Chand, plaintiff, had filed the suit for declaration and injunction against the defendants. The defendants had put in appearance before the trial Court and had filed the written statement and also reply to the ad-interim injunction application. Thereafter, the trial Court had framed the issues on 25.2.1991 and the case was adjourned for plaintiffs evidence. On 26.4.1993, the plaintiff closed his evidence in the affirmative and the case was fixed for defendants evidence. The defendants failed to produce their evidence on 23.7.1993 and 4.10.1993 and accordingly the case was adjourned to 25.11.1993 for defendants evidence subject to payment of Rs. 50/- as costs. All these orders were passed in the presence of the counsel for the defendants. On 25.11.1993, neither any evidence on behalf of the defendants was present nor summoned, whiled the learned counsel appearing for the defendants had shown his inability to pay the adjournment costs of Rs. 50/- and had stated that he had no instructions to appear on behalf of the defendants. Accordingly, the learned trial Court struck off the defence of the defendants under Section 35B C.P.C. and adjourned the case for arguments to 10.12.1993, on which date no one had appeared on behalf of the defendants and the defendants were proceeded against ex parte. Ultimately, the learned trial Court vide ex parte judgment and decree dated 2.4.1994 had decreed the suit of the plaintiff. Ultimately, the learned trial Court vide ex parte judgment and decree dated 2.4.1994 had decreed the suit of the plaintiff. On the facts and circumstances of the present case, it could not be said that the defendants came to know about the ex parte judgment and decree dated 2.4.1994 only when they got a letter on 16.5.1994 from their counsel at Chandigarh who had appeared on their behalf before the Financial Commissioner in some their proceedings. On the other hand, the defendants through out knew about the pendency of the civil suit before the court at Sirsa and the case was fixed for defendants evidence and in spite of three opportunities the defendants had failed to produce any evidence and had even failed to tender the conditional costs. It was under those circumstances that the defence of the defendants was struck off by the learned trial Court on 25.11.1993. 9. In P.K. Ramachandrans case (supra), it was held by their Lordships of the Supreme Court as under :- "The Court has not recorded any satisfaction that the explanation for the delay was either reasonable or satisfactory, which is essential pre-requisite to condone the delay ....... Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the status so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained." 10. The law laid down by their Lordships of the Supreme Court in this authority was followed by this Court in Gram Panchayat, Malouts case (supra) and it was held that once the remedy under a statute became barred by time, a definite right accrues to the other party and this right which in law has to be construed as a valuable right can be taken away only when sufficient and good cause supported by bona fide action is shown to have been taken by the applicant, who approaches the Court for condonation of delay. In Paramjit Singhs case (supra), a Division Bench of this Court had refused to condone the delay of 12 days in filing the appeal, when only vague allegations were made in the application, seeking condonation of delay in filling the appeal without giving the details and as a result the appeal was dismissed as barred by time. Similar view was taken by this Court in Kesar Singhs case (supra). 11. So far as the provisions of Section 123 of the Limitation Act, 1963 relied upon by the learned counsel for the defendant-petitioner, are concerned, in my opinion, the same would have no application to the facts of the present case. Article 123 of the Limitation Act provides limitation of 30 days for setting-aside a decree passed ex parte and the starting point of limitation is the date of the decree or where the summons or notice were not duly served, then from the date when the applicant had the knowledge of the decree. In the present case, no application under Order 9 Rule 13 C.P.C. was filed by the defendants before the trial Court for setting aside the ex parte judgment and decree dated 2.4.1994. On the other hand, the appeal was filed before the District Judge, challenging the judgment and decree dated 2.4.1994. Thus, the provisions of Article 123 of the Limitation Act would have no application to the facts of the present case. Even otherwise, even if the provisions of Article 123 of the Limitation Act are taken into consideration, it could not be said that in the present case the limitation was 30 days from the date of knowledge of the ex parte decree. This clause would apply only where the summons or notice had not been duly served and in that eventuality, the limitation for setting-aside the ex parte decree would be 30 days from the date of the knowledge. Otherwise, the limitation for setting-aside an ex parte decree is 30 days from the date of the said decree. In the present case, admittedly, the defendants were duly served with the summons and had put in appearance and has filed the written statement and issue were also framed. Otherwise, the limitation for setting-aside an ex parte decree is 30 days from the date of the said decree. In the present case, admittedly, the defendants were duly served with the summons and had put in appearance and has filed the written statement and issue were also framed. Under these circumstances, the defendant-petitioner cannot claim limitation of 30 days, from the date when he allegedly came to know about the ex parte judgment and decree dated 2.4.1994 on 16.5.1994, when he received the letter from his lawyer at Chandigarh. Amarjit Singhs case (supra) and Angrez Singhs case (supra), relied upon by the learned counsel for the petitioner, in my opinion, would have no application to the facts of the present case and would be of no help to the petitioner. Similarly, Collector, Land Acquisition, Anantnags case (supra), relied upon by the learned counsel for the petitioner, would be of no help to the petitioner when the petitioner had miserably failed to make out a case by showing sufficient grounds for condoning the delay in filing the appeal. As referred to above, the record was summoned in this case. A perusal of the appellate Court record would show that the only ground taken by the defendant-petitioner for seeking condonation of delay in filing the appeal was that his counsel at Sirsa had not informed the defendants about the judgment and decree dated 2.4.1994 and the defendants came to know about it only from their counsel at Chandigarh, who had appeared on their behalf before the Financial Commissioner and as such the delay in filing the appeal be condoned. In my opinion, on the facts and circumstances of the present case, it could not be said that were sufficient cause for condoning the delay in filing the appeal, especially when the application filed by the petitioner was so vague and did not explain the circumstances under which the defendant-petitioner did not contact their counsel at Sirsa to know about the fate of the suit filed by the plaintiff against them. The mere allegation that the counsel at Sirsa did not inform the defendants about the result of the suit, could not be taken as a sufficient cause for condoning the delay in filing the appeal, as held by this Court in Kesar Singhs case (supra). 12. The mere allegation that the counsel at Sirsa did not inform the defendants about the result of the suit, could not be taken as a sufficient cause for condoning the delay in filing the appeal, as held by this Court in Kesar Singhs case (supra). 12. So far as the statement of the learned counsel for the defendant- petitioner regarding the counsel having pleaded no instructions before the trial Court on 25.11.1993 is concerned, in my opinion, it could not be said that the trial Court committed any illegality in not issuing any notice to the defendants, when their counsel in the trial Court had pleaded no instructions on 25.11.1993. In Suresh Kumars case (supra), after noticing Tahil Ram Issardas Sadarangani and others case (supra), it was held by a Division Bench of this Court as under :- "The argument of the learned counsel that..... should have given a fresh notice to the petitioner after his counsel had pleaded no instructions on.... cannot be accepted because merely by engaging a counsel the petitioner did not get an immunity from prosecuting his case by appearing in the Court. It was for the petitioner to have looked after his interest in the case by personal appearance or by ensuring the appearance of his duly instructed counsel. If a party engages a counsel without giving full instructions to him and suffers an adverse order because the counsel pleads no instructions, then, blame squarely lies on that party and such party cannot plead that it was prevented from appearing in the Court due to sufficient cause." "We hold that it is not necessary for the Court/Tribunal or other quasi- judicial authority to give a fresh notice in all cases where a party is represented by a counsel or a representative at one stage but subsequently such counsel/representative withdraws from the case or pleads no instructions." 13. In view of law laid down by a Division Bench of this Court, after considering the law laid down by their Lordships of the Supreme Court in Tahil Ram Issardas Sadarangani and others case (Supra), it could not be said that the trial Court committed any illegality by not issuing notice to the defendants when the counsel for the defendants pleaded no instructions on 25.11.1993. The said authority relied upon by the learned counsel for the petitioner, thus, would be of no help to the petitioner on the facts and circumstances of the present case. No other point has been raised before me in this revision petition. For the reasons recorded above, finding no merit in the revision petition, the same is hereby dismissed with no order as to costs. Revision dismissed.