Raghubir Singh v. Agra Cantonment Sahkari Awas Samiti Ltd.
2004-03-15
MARKANDEY KATJU, R.S.TRIPATHI
body2004
DigiLaw.ai
JUDGMENT : M. KATJU, J. 1. This appeal has been filed against the impugned order dated 7.5.2002 by which Defendants Appellants' application praying for condonation of the delay in filing the application for setting aside the ex-parte judgment dated 16.5.1998 has been rejected. 2. Heard learned Counsel for the parties. 3. The Plaintiff Respondent filed Suit No. 728 of 1990 for a permanent injunction against the Defendants Appellants for restraining them from digging foundation, laying roads, making any addition, alteration, construction or executing any agreement to sell etc. in favour of any one except the Plaintiff, and for a specific performance to direct the Defendants to execute the sale deed in favour of the Plaintiff in pursuance of the agreement to sell dated 16.11.1984 in respect of disputed property. 4. Notice was issued to the Defendants who entered appearance and filed written statements on 29.8.1991. Thereafter they absented themselves and did not appear in the suit, and hence the court below passed the order dated 18.1.1993 directing the suit to proceed ex-parte and ultimately on 16.5.1998 the suit was decreed ex-parte. 5. On 4.9.2000, the Defendants Appellants filed an application under Order IX, Rule 13, CPC along with application u/s 5 of Limitation Act. 6. One Jan Grah Nirman Samiti claiming under the Defendant Nos. 1 and 2, the present Appellant had got itself impleaded in the suit by moving an application dated 29.8.1991. The said Samiti was made Defendant No. 3, and it contested the suit till the last, copy of the impleadment application is Annexure-CA 1 to the counter-affidavit in reply to the stay application in this appeal. Extract of the relevant order sheet is Annexure-CA 2. It is alleged that on 29.8.2001 when the Samiti applied for impleadment Defendant Nos. 1 and 2 (Appellants) were present in Court, but they did not file any objection and absented themselves in the suit. It is alleged that this was quite deliberate and intentional and they were playing hide and seek. 7. The court below has rejected the application u/s 5 Limitation Act by the impugned order dated 7.5.2002, holding that there was no sufficient cause for the delay. 8. Admittedly the notice of the suit had been served upon the Defendant and they had also put in appearance in the suit by filing written statement on 29.8.1991.
7. The court below has rejected the application u/s 5 Limitation Act by the impugned order dated 7.5.2002, holding that there was no sufficient cause for the delay. 8. Admittedly the notice of the suit had been served upon the Defendant and they had also put in appearance in the suit by filing written statement on 29.8.1991. Thereafter the Defendants absented themselves and did not appear before the court below on any other dates which were fixed in the suit. Ultimately the court below did not have any other alternative except to pass the order dated 18.1.1993 for proceeding with the suit ex-parte against the Defendants. The Defendants filed an application for setting aside the aforesaid decree on 4.9.2000 along with an application u/s 5 of the Limitation Act. The court below has dismissed the application u/s 5 of the Limitation Act after recording a categorical finding that the Defendants having full knowledge of the suit had deliberately absented themselves and that the cause shown for their non-appearance could not be believed, and ultimately the application u/s 5 of the Limitation Act was rejected by the court below on the ground that the Defendants were not entitled to the benefit of Section 5 of the Limitation Act. The Defendants preferred F.A.F.O. No. 700 of 2002 against the order dated 7.5.2002 dismissing the application u/s 5 of the Limitation Act. In our opinion, no F.A.F.O. lies under the provisions of Order XLIII, Rule 1, CPC and as such the aforesaid F.A.F.O. is not maintainable and the same is liable to be dismissed on that ground alone. 9. Even otherwise also the reason for non-appearance of the Defendants has been disbelieved by the court below and the theory set up by the Defendants has been discarded. It has been held by the Supreme Court in P.K. Ram Chandan vs. State of Kerala, AIR 1998 SC 2276 , that the provisions of the Limitation Act should be strictly followed and that the Court has no power to extend the period of limitation on equitable grounds. We are in agreement with the court below that no sufficient ground has been made out to condone the delay. 10. So far as the F.A.F.O. No. 1480 of 2002 is concerned, the same is also liable to be dismissed as the court below has not found the explanation for the absence of the Defendants to be satisfactory.
We are in agreement with the court below that no sufficient ground has been made out to condone the delay. 10. So far as the F.A.F.O. No. 1480 of 2002 is concerned, the same is also liable to be dismissed as the court below has not found the explanation for the absence of the Defendants to be satisfactory. 11. For the reasons given above F.A.F.O. No. 700 of 2002 and F.A.F.O. No. 1480 of 2002 are both dismissed.