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2003 DIGILAW 455 (KER)

Muhamed Ashraf v. Mazeeth

2003-07-16

K.PADMANABHAN NAIR

body2003
Judgment :- The defendants in O.S.74 of 2001 on the file of Subordinate Judge, Nedumangad are the revision petitioners. This Civil Revision Petition is filed against an order passed by the learned Sub Judge dismissing an application filed under Section 5 of the Limitation Act for condoning the delay in filing a petition under Order IX Rule 13 of the Code of Civil Procedure for setting aside and ex parte decree. 2. The short facts necessary for the disposal of the Civil Revision Petition are as follows: The respondent filed a suit for realization of Rupees Twelve lakhs allegedly due to him under an agreement. The revision petitioners entered appearance, but they were absent on the date on which the case was posted for trial. So, on 8.4.2002 the suit was decreed ex parte. The revision petitioners filed I.A.50 of 2003 under Order IX Rule 13 for setting aside the ex parte decree after the period of limitation and I.A.51 of 2003 under Section 5 of the Limitation Act for condoning the delay in filing the petition to set aside the ex parte decree. In the affidavit filed in support of the petition for condonation of delay, it was averred that on receipt of the summons they entrusted the Vakalath with Advocate Mr. V.Shaji of Attingal, who promised to appear and conduct the case for them. It was also averred that a written statement was prepared and the first revision petitioner signed the same and send it to the Advocate for filing the same in the Court. Thereafter they did not hear anything from the Advocate. While so, they received notice form the Sub Court, Iringjalakuda in the Execution Petition filed by the respondent-plaintiff in the suit. They made enquiries and came to know that an ex parte decree was passed on 8.4.2002 and thereafter the decree was transferred to the Sub Court, irinjalakuda for execution and the decree holder sought the sale of the properties. It is averred that on getting notice of the execution petition, they met Advocate Sri. V.Shaji, who informed them that though initially an ex parte decree was passed, the same was set aside on a petition filed by him for that purpose. It is further averred that they requested Advocate Sri. Shaji to provide them with a copy of the order, but he did not handover a copy to them. V.Shaji, who informed them that though initially an ex parte decree was passed, the same was set aside on a petition filed by him for that purpose. It is further averred that they requested Advocate Sri. Shaji to provide them with a copy of the order, but he did not handover a copy to them. It is further averred that on 17.1.2003 the first revision petitioner sent a telegram and on the next day a letter requesting the Advocate to send them the copy of the order. The Advocate did not sent any reply. So, they met him personally. At that time the Advocate told them that he had already sent a copy of the order to the revision petitioners through post. Therefore the revision petitioners engaged another Advocate and made enquiries in the Sub Court and came to know that no such petition was filed and ex parte decree was not set aside. Hence, they prayed for condoning the delay in filling the petition to set aside the ex parte decree. They also filed I.A.50 of 2003 for setting aside the ex parte decree supported by an affidavit containing the very same averments. 3. The respondent did not file any counter affidavit or statement. An objection signed by the counsel appearing for the respondent was filed, contending that the prayer in the petition is not a bonafide one and the averments contained in the affidavit are false. It was contended that the reasons stated in the affidavit filed in support of the petition for condoning the delay are not sufficient. It was contended that the allegations leveled against Advocate Sri.Shaji were baseless and not sufficient. It was contended that there were laches on the part of the revision petitioners and all along they were in touch with Sri. Shaji, who was appearing for them in three criminal cases. It was averred that the petitioners appeared before the Sub Court, Irinjalakuda on 8.11.2002 and filed their objection on 2.12.2002 and they appeared in the Court before the receipt of notice. It was contended that that fact itself shows that the revision petitioners were aware of the entire proceedings. The averment that they have no knowledge about the passing of the ex parte decree is false. It was also contended that the petition is filed with malafide intention to delay the execution of the decree passed. It was contended that that fact itself shows that the revision petitioners were aware of the entire proceedings. The averment that they have no knowledge about the passing of the ex parte decree is false. It was also contended that the petition is filed with malafide intention to delay the execution of the decree passed. Hence, they prayed for dismissal of both the applications. 4. The first petitioner gave evidence as P.w.1. Exhibits A1 and A2 series were marked. 5. The learned Sub Judge found that the reasons stated for condoning the delay are neither sufficient nor genuine. Hence, dismissed the petition for condoning the delay. As a consequential order, he dismissed the petition filed under Order IX Rule 13 also. The present revision is filed against the order dismissing the application filed for condoning the delay. 6. When the matter came up for hearing, the learned counsel appearing for the respondent has raised a preliminary objection regarding the maintainability of the Civil Revision Petition. It is argued that the petitioner filed a petition under Order IX Rule 13 for setting aside the ex parte decree and that application was dismissed and that order is an appealable order under Order XLIII Rule 1(d) and the petitioners have not filed any appeal. This Civil Revision Petition is filed against the order dismissing Section 5 Petition alone. It is argued that the petitioners ought to have filed a Civil Miscellaneous Appeal against the order dismissing Order IX Rule 13 petition and the order passed in that petition has become final and conclusive and hence this Civil Revision Petition is not maintainable. It is also contended that the impugned order is not a composite order and in the present Civil Revision Petition there is no challenge against the order passed by the Court below dismissing the Order IX Rule 13 petition. 7. The learned counsel appearing for the revision petitioners has argued that the order passed by the Court below dismissing the order IX Rule 13 petition in only a consequential order passed by the Court in view of the dismissal of the petition I.A.51 of 2003 which is filed for condoning the delay. Hence, the Civil Revision petition filed under Section 115 of the Code of Civil Procedure against the refusal to condone the delay alone is maintainable. Hence, the Civil Revision petition filed under Section 115 of the Code of Civil Procedure against the refusal to condone the delay alone is maintainable. It is argued that identical reasons were stated for condoning the delay as well as to set aside the ex parte decree and if the Court finds that there is sufficient reason for condoning the delay in spite of the fact that no separate revision or appeal is filed against the order passed in the petition filed under Order IX Rule 13, this Court can set aside the ex parte decree and restore the suit to file. He relied on a decision reported in Jayakumari v. Ismail Rawther (2001 (2) KLT 551). It is also contended that the objection filed against the affidavit filed in support of the petition to condone the delay was not signed or verified by the respondents and hence the learned Sub Judge ought to have rejected the pleadings and allowed both the applications. 8. According to the learned counsel for the respondent-plaintiff, the principle laid down in Jayakumari’s case (Supra) is not correct and in view of the subsequent decision of the Supreme Court, the principle laid down in Jayakumari’s case (Supra) is not good law. Alternatively, it is argued that in that case a composite order was passed and the revision was filed against both orders. But, in the case at hand separate orders were passed and the Civil Revision Petition is directed against the order passed in the petition to condone the delay only and the failure to challenge the order passed by the Court below in the petition filed to set aside the ex parte decree is Patal and no useful purpose will be served even if the Civil Revision Petition is allowed. It is also argued that the order passed in the other I.A. will operate as res judicata. 9. The revision petitioners filed I.A.50 of 2003 for setting aside the ex parte decree and I.A.51 of 2003 for condoning the delay in filing the petition to set aside the ex parte decree. The petition to condone the delay was treated as the main petition. The first petitioners was examined as P.W.1. Exhibits A1 and A2 series were marked. But, the learned Sub Judge after considering the pleadings and evidence, passed two separate orders. The petition to condone the delay was treated as the main petition. The first petitioners was examined as P.W.1. Exhibits A1 and A2 series were marked. But, the learned Sub Judge after considering the pleadings and evidence, passed two separate orders. This Civil Revision Petition is directed against the order dismissing the petition to condone the delay. No appeal or revision is filed against the order passed by the Court below dismissing the petition to set aside the ex parte decree. So, the question arising for considering is whether this Court can interfere with the order passed in the petition filed under Order XI Rule 13 to set aside the ex parte also if this Court finds that the petitioners had shown sufficient cause for condoning the delay. 10. In Jayakumari’s case (Supra) a common order was passed and a Civil Revision Petition was filed challenging the common order passed in both the petitions. In that case an objection was raised that in the absence of an appeal filed against the order dismissing the petition filed under Order IX Rule 13 a revision is not maintainable. Reliance was placed on the decision reported in Kunhiraman v. Rossy (1979 KLT 718) in support of the argument. A learned Single Judge of this Court found that the principle laid down in Kunchiraman’s case (Supra) does not have any application to the facts of this case. The order dismissing a petition field under order IX Rule 13 is appealable under Order XLIII Rule 1(d). But when the petition to set aside the ex parte decree is filed after the expiry of the period of limitation and accompanied by a petition to condone the delay, the order passed in the petition to condone the delay is only revisable and not appealable. When the petition for ocndonation of delay and the petition for setting aside the decree are dismissed, the aggrieved person can file and appeal against the order passed in the petition filed an appeal against the order passed in the petition filed under Order IX Rule 13 and file a Civil Revision Petition against the order dismissing the petition to condone the delay before this Court. It is also open to the party to challenge the order passed in the petitioner to condone delay also in the appeal in view of the provisions contained in Section 105 of the Code of Civil Procedure. It is also open to the party to challenge the order passed in the petitioner to condone delay also in the appeal in view of the provisions contained in Section 105 of the Code of Civil Procedure. It is well settled position of law that an interlocutory order, which had not been appealed against either because no appeal lay or eventhough an appeal lay, an appeal was not taken, can be challenged, in an appeal from the final order under Section 105 of the Code of Civil procedure. Interlocutory orders granting certain relief’s are thus not conclusive and can be made as grounds in the appeal against the final order as held in Satvadhavan v. Smt. Deoralin (AIR 1960 SC 941) and in Kshitish Chandra v. Commissioner of Ranchi (AIR 1981 SC 707). Admittedly in the instant case no appeal or Civil Revision Petition is filed against the order rejecting the prayer to set aside the ex parte decree. The question arising for consideration in this Civil Revision Petition is whether this Court can interfere with the order of the court below dismissing the petition filed for setting aside the ex parte decree on the ground that it is only a consequential order. 11. In Jayakumari’s case (Supra) this Court held as follows: - “When an appeal is provided against the order passed by the trial court and there is not further provision for second appeal against the order passed by the appellate court, a revision to the High Court under S,115 of the C.P.C. is competent. It is also laid down that when two remedies are available to a party against the order passed by the trial court, he can elect out of the two remedies available to him. In this case the respondent has no contention that a second appeal is provided under the C.P.C. against the judgment in appeal challenging the order passed by the trial court under 0.9 R.13 of the C.P.C. Under the circumstances the preliminary objection raised by the respondent that the above revision is incompetent under S.115 of the C.P.C. since appeal lies from the lower appellate court against the order dismissing the application under 0.9 R.13 of the C.P.C. to set aside ex parte decree, is absolutely unsustainable”. The learned counsel for the respondent relying on the decision reported in Janaradasundari v. Madhabohandrau (AIR 1932 Calcutta 482) has argued that the principle laid down in Jayakumari’s case(Supra) requires reconsideration. In Janadasundari’s case (supra), the question arose for consideration was whether an order rejecting a memorandum of appeal as insufficiently stamped is a decree under Section 2(2) of the Code of Civil Procedure. In Mamuda Khateen v.Benivan Bibi (AIR 1976 Calcutta 415) a Full Bench of the Calcutta High Court considered whether the order passed in a time barred memorandum of appeal consequent to the dismissal of the petition for condonation of delay in filing the appeal is a decree or not. The Full Bench held that it will not amount to a decree and the order is revisable. In Kunhiraman’s case (Supra) a learned Single Judge of this Court held that when an appeal was dismissed consequent to the dismissal of the application for condoning the delay in filling the appeal, the proper remedy available to the aggrieved party is to file a Second Appeal against the decree if it is allowed under law and take a ground in the appeal that the Court below ought to have condoned the delay also. In Ratansingh v. Vijaysingh (AIR 2001 SC 279) the apex Court has found that when a first appeal is dismissed consequent to the rejection of the application for condonation of delay, that dismissal of the appeal will not amount to a decree. The Supreme Court was considering whether the period of twelve years prescribed under Article 136 of the Limitation Act for execution of the decree will start from the date of dismissed of the appeal or form the original date of the decree. In view of the principles laid down in Ratansing’s case (Supra) the dictum laid down in Kunhiraman’s case (Supra) is no longer good law. So, the principle laid down in the above said decisions can also have no application to the facts of this case. 12. In M.K.Prasad v. P.Arumugam (2001) 6 SCC 176) a Special Leave Petition was filed before the Supreme Court only against the order dismissing the petition filed under Section 5 of the Limitation Act. So, the principle laid down in the above said decisions can also have no application to the facts of this case. 12. In M.K.Prasad v. P.Arumugam (2001) 6 SCC 176) a Special Leave Petition was filed before the Supreme Court only against the order dismissing the petition filed under Section 5 of the Limitation Act. It was held as follows: - “In the interests of justice and under the peculiar circumstances of the case, we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well”. So, the apex Court in an appeal filed against the order dismissing an application filed under Section 5 of the Limitation Act set aside the order passed by the trial Court in the petition under Order IX Rule 13 and allowed that petition. In Vedabai v. Shantharam Baburao Patil ((2001) 9 SCC 106) after allowing a petition filed under Section 5 of the Limitation Act, the apex Court ordered the restoration of the appeal to the file of the lower appellate Court and directed the District Judge to decide the appeal on merits. In Jayakumari’s case (Supra), the learned single Judge or this Court found that when the petition to set aside the ex parte decree was dismissed consequent to the dismissal of the application for condoning the delay in filing the same, a Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the order dismissing the application to set aside ex parte decree is maintainable. So, the principle laid down in Jayakumari’s case (Supra) does not require any reconsideration and I respectfully follow the principle laid down in that decision. In view of the principle laid down in M.K.Prasad’s case (Supra), Vedabai’s case (Supra), Jayakumari’s case (Supra), the legal position is clear. If the defendant files a petitioner to set aside the ex parte decree after the expiry of the period along with a petition to condone the delay the Court may treat the petition to condone the delay as the main petition and dispose of both the petitions. In such a case, the order passed in the petition to set aside the ex parte decree is only a consequential order. In such a case, the order passed in the petition to set aside the ex parte decree is only a consequential order. In such cases if the revisional court allows the Civil Revision Petition filed against the order passed in the petition to condone the delay, the consequential order passed in the other petition also goes since the very substratum for that order goes. In such case the rivisional Court can consider the legality and propriety of the consequential order also and the failure to file and appeal or revision against the order is not fatal. In appropriate cases the revisional Court can consider the correctness of that decision by itself or direct the trial Court to reconsider that petition on its merits. Since the reasons stated for condoning the delay and for setting aside the ex parte decree are one and the same, if there are materials to show that the order passed by the trial Court dismissing the petition to condone the delay is unsustainable, this Court can set aside the order dismissing the petition to set aside the ex parte decree also. 13. The learned counsel appearing for the respondent has argued that the order passed by the Court below dismissing the petition filed to set aside the ex parte decree has become final and conclusive, the same will operate as res judicata. He has placed reliance on the decision reported in Workmen. C.P.Trust v. Board of Trustees (AIR 1978 SC 1283). Since that order is only a consequential order, it cannot be held that the same has become final and conclusive. 14. For the reasons stated above, I do not find any merit in the contention raised raised by the counsel for the respondent that since no appeal is filed against the order passed in I.A.50 of 2003, the petition to set aside ex parte decree, this Civil Revision Petition is not maintainable. 15. The learned counsel appearing for the respondent also relied on the decision reported in N.Balakrishnan v. M.Krishnamurthy (AIR 1998 SC 3222) and argued that the reason stated by the trial Court for dismissing the petition to condone the delay are very valid and this Court shall not interfere with that discretion. In Balakrishnan’s case (Supra) there was a delay of 883 days in filing the petition to set aside the ex parte. In Balakrishnan’s case (Supra) there was a delay of 883 days in filing the petition to set aside the ex parte. According to the appellant, the delay occurred due to the default on the part of the Advocate to inform the party. The trial Court found that there was valid explanation and set aside the ex parte decree. In revision, the High Court set aside the order and dismissed the petition to condone the delay. The apex Court after considering the pleadings and evidence found that the explanation offered is vailid; but further held that the trial Court ought to have awarded cost especially in view of the fact that the appellant secured compensation from the delinquent Advocate. So, infact the Court accepted the case of the appellant that the delay occurred due to the fault on the counsel and condoned the delay. 16. The learned counsel appearing for the revision petitioners relied on the decision reported in M.K.Prasad’s case (Supra). It was held in that decision that the discretion conferred under Section 5 of the Limitation Act has to be exercised to advance substantial justice. After considering the meaning of the words sufficient cause, the apex Court held that eventhough the appellant was not vigilant, the petition can be allowed on exemplary costs. In Vedabal’s case (Supra) also the apex Court considered the meaning of the words sufficient cause”. In Bam Nath Sao v. Gobardhan Sao ((2002) 3 SCC 195) the Supreme Court held that the expression “sufficient cause” within the meaning of Section 5 of the Limitation Act, 1963 or Order XXII Rule 9 of the Code of Civil Procedure or any other similar provision should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned. 17. Now I shall consider whether the petitioners have shown any sufficient cause for condoning the delay in filing the petition to set aside the ex parte decree. It is true that their case in the affidavit was that they came to know about the passing of the ex parte decree only on receipt of the notice form the executing Court is not true. It is true that their case in the affidavit was that they came to know about the passing of the ex parte decree only on receipt of the notice form the executing Court is not true. The learned counsel appearing for the revision petitioners has argued that a friend of the first petitioner is practicing as an Advocate at Irinjalakuda Courts and when he came to know about the pendency of the E.P., he informed the revision petitioners and due to an inadvertent omission in the affidavit it is stated that they came to know of the proceedings only on receipt of the notice form the executing Court. At the time of oral evidence P.W.1 explained that fact. I do not find any reason to discard the explanation offered by P.W.1. So merely because of that discrepancy alone the petition for condoning the delay ought not have been rejected. The specific case put forward by the revision petitioners is that they, on receipt of the Summons, entrusted the case bundle with Advocate Mr. Shaji practicing at Attingal who promised to appear and defend the case for them at the Subordinate Judge’s Court, Nedumangad. It is also averred that when they came to know about the passing of the ex parte decree , they approached the counsel and he told them that though initially an ex parte decree was passed, subsequently the same was set aside on an application filed by him. To show their bona fides, they produced a copy of the telegram sent and a copy of the letter written to Advocate Sri.Shaji by them. I do not find any reason to disbelieve the oral evidence given by p.w.1 on this aspect also. It is true that they have not examined Advocate Sri. Shaji. Even if Advocate Sri. Shaji was examined, one cannot expect him to give evidence in favour of the petitioners. The trial Court took the view that Mr.Shaji was appearing for the revision petitioners in three oriminal cases also. That fact is not disputed by the revision petitioners. But there is nothing on record to show that he had appeared for the petitioners after 17.1.2003. Upto 17.1.2003, they had no reason to suspect the conduct of the Advocate. So even if he appeared for them between 8.4.2002 and 17.1.2003, there is nothing strange in that. That fact is not disputed by the revision petitioners. But there is nothing on record to show that he had appeared for the petitioners after 17.1.2003. Upto 17.1.2003, they had no reason to suspect the conduct of the Advocate. So even if he appeared for them between 8.4.2002 and 17.1.2003, there is nothing strange in that. If there is evidence to show that after 17.1.2003 also Mr.Shaji appeared for them in the other cases, that would have gone a long way against the case of the revision petitioners. But, there is no such evidence. The mere fact that Mr.Shaji appeared for them in the connected criminal cases is not sufficient to hold that the case put forward by the revision petitioners is false. The first petitioner gave evidence as P.W.1. He produced Exhibits A1 and A2 series, the copy of the telegram as well as the copy of the letter written by him to Advocate Sri Shaji to show that they were made to believe that though an ex parte decree was passed, it was subsequently set aside. Ofcourse, there is laches on the part of the revision petitioners also. Atleast on receipt of the information about the execution petition they ought to have verified whether any petition to set aside ex parte decree was filed. But, that laches can be compensated by awarding heavy cost. According to me, an amount of Rs, 10,000/- as cost is sufficient to meet the ends of justice. 18. The learned counsel for the revision petitioners has argued that the applications filed in the Court below were supported by affidavits sworn to by the first revision petitioner. It is argued that though objections were filed against the petitioners, those objections were not signed by the respondent, but by his counsel alone. It is argued that in view of the provisions contained in Order VI Rule 14, it is mandatory that pleadings should be signed by the party and not by his pleader. It is also argued that the authority given to the advocate to represent the party in Court under Order III Rule I does not confer him the power to sign the pleadings. In Varkev v. Nenshi Devshi Kathawala Ltd. (1963 KLT 463) it was held that signing and verification of a plaint is not any appearance, application or act in or to a Court as provided under Order III Rule 1. In Varkev v. Nenshi Devshi Kathawala Ltd. (1963 KLT 463) it was held that signing and verification of a plaint is not any appearance, application or act in or to a Court as provided under Order III Rule 1. In view of the provisions contained in Order VI Rule 14, the pleadings shall be signed by the party. But, the failure to sign the pleadings is only a defect that can be cured. No such objection was raised in the Court below. So, there is no merit in that contention. In the result, the Civil Revision Petition is disposed of in the following manner: The Civil revision Petition will stand allowed and the order passed by the Court below dismissing I.A.51 of 2003 in O.S.74 of 2001 will stand set aside in case the petitioners pay or deposit in the Court below for payment to the respondent an amount of Rs.10, 000/- (Rupees ten thousand only) as cost within one month from today. If the cost is paid or deposited within the time allowed, the order passed by the Court below dismissing I.A.51 of 2003 will stand set aside and the I.A. will stand condoned. If the condition is complied with, the consequential order passed by the Court below dismissing I.A.50 of 2001, the petitioner filed under Order IX Rule 13, will also stand set aside and the same will stand allowed. The learned Sub Judge will restore O.S.74 of 2001 back to file and dispose of the same afresh in accordance with law after giving a brief by reasonable opportunity to the revision petitioners to file their written statement. If the condition is not complied with, the order passed by the Court below dismissing I.A.51 of 2003 will stand confirmed and this Civil Revision petition will stand dismissed. The Court below shall make every endeavour to dispose of the suit as expeditiously as possible. C.M.P.2479 of 2003 shall stand dismissed.