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2005 DIGILAW 207 (JK)

Swaran Devi v. Sita Devi

2005-08-03

PERMOD KOHLI

body2005
1. This revision petition has arisen out of an order dated 18.1.2003 passed by the Ist Additional District Judge, Jammu whereby an ex parte preliminary decree drawn on 12.8.1999, has been set-aside. 2. In a suit for partition filed by petitioners herein as plaintiffs in the court of Additional District Judge, Jammu, respondent, Sita Devi was arrayed as one amongst six defendants. She filed her written statement through Mr. R.P. Sangra, Advocate and thereafter absented from the proceedings. The trial court framed issues on 2.11.1996 and the plaintiffs were in process of leading evidence when respondent, Sita Devi was proceeded ex parte vide order dated 8.5.1997. The trial court passed ex parte preliminary decree vide order dated 12.8.99 against respondent. Respondent made application on 16.12.1999 seeking setting aside ex parte decree and judgment dated 12.8.1999 passed in the suit on the ground that she is an old lady of 70 years and is a chronic diabetic patient . It was stated that she had engaged Mr. R.P. Sangra, Advocate to defend her in the suit. She further alleged that she being an old and unhealthy lady had conveyed to her counsel that she will not be in a position to attend the case on each and every hearing and her counsel should appear on her behalf. It is also averred that the counsel assured her that he will appear and remain in touch with her. According to the respondent, she approached her counsel on 20.1.99 to enquire about the proceedings in the case. The counsel was unable to provide exact information regarding the latest position of the case and next date of hearing. This prompted her to approach the court, when she came to know that ex parte proceedings had been initiated against her on 12.8.1999. The applicant accordingly made an application on 16.12.1999 after obtaining copy of the impugned judgment and decree. The trial court after inviting objections from the petitioner herein, allowed the application vide impugned order dated 18.1.2003. It is against this order that the present plaintiff/petitioner has come up before this court .The only argument that has been addressed before me is, that application filed by respondent was barred by time and no application for condonation of delay was made and therefore, the trial court had no jurisdiction to allow the application, which was otherwise barred by time. 3. 3. I have heard learned counsel for the petitioner on admission of this revision and perused impugned order. 4. The trial court has dealt with the question of limitation and specifically observed that application filed by respondent for setting aside ex- parte proceedings itself contains a prayer for condonation of delay. The trial court accordingly rejected the plea of the present petitioner for dismissal of application in absence of separate condonation application for condoning the delay. The trial court is of the opinion that in view of the plea raised in the application itself seeking condonation of delay, the technical plea of not filing separate application, is not to be accepted. 5. Mr. Achal Sethi, learned counsel for petitioners has vehemently argued before me that the order impugned condoning limitation without an application to that effect, is an order without jurisdiction and is liable to be set aside. He has referred to a case titled Ramesh Chand Sharma Vs. Udham Singh Kamal and Others reported as AIR 1999 SC 3837. In this case, the order of appointment was challenged before the Administrative Tribunal of Himachal Pradesh after the expiry of three years. The original application filed before the Tribunal besides the averments on merit contained a stipulation regarding limittation. In para-5 thereof it was mentioned that the application is within limitation prescribed under Section 21 of the Administrative Ttribunal Act, 1995. On examination, it was found by the Tribunal that it was not so. The tribunal was of the opinion that the application was beyond time having been filed beyond the period of three years and there was no application for condonation of delay . The Tribunal accordingly dismissed the application. It was against this order, the appeals were preferred before the Apex Court and the Apex Court on consideration of the issue, held that in absence of application under sub section 3 of Section 21 for condonation of delay, the tribunal had no jurisdiction to dispose of the application on merit. Some explanation was sought to be given before the Supreme Court, which was not entertained as the Apex Court considered that no such explanation having been tendered before the tribunal, it could not be entertained at the level of the Apex Court. Learned counsel for petitioner has also referred to another case titled Ballumal A Jaisingh Vs. Some explanation was sought to be given before the Supreme Court, which was not entertained as the Apex Court considered that no such explanation having been tendered before the tribunal, it could not be entertained at the level of the Apex Court. Learned counsel for petitioner has also referred to another case titled Ballumal A Jaisingh Vs. M/s J.J. Builders and Others reported as 2003( 2) Civil Cout Cases 656 ( Bombay). In this case also, it was held that in absence of an application for condonation, the court is not empowered to condone the delay. To same effect the reliance is placed upon other judgments. 6. It is further stated on behalf of petitioners that in absence of any proper application for condonation of delay, the trial court has committed glaring illegality in condoning the delay. 7. I have examined the original application for setting aside the ex parte decree . Respondent/ applicant in para 5 of the application stated as under: That immediately thereafter the applicant took steps and applied for copy of judgment dated 12.8.99. And after obtaining the said judgment approached this Hon™ble court through the medium of this application to set aside the ex parte judgment and decree dated 12.8.1999. The delay if any, may kindly be condoned in the interest of justice. It is submitted that the aforesaid ex parte judgment came to be passed just because of the negligence of the counsel to whom she authorized and by whom the assurance was given to pursue the case properly and communicate to the applicant accordingly, as applicant old and infirm lady was unable to pursue her case on every date of hearing.� 8. In the preceding paragraph, the applicant has stated the ground for setting aside the judgment and decree. The application was also accompanied with number of medical reports and prescriptions and tests reports to demonstrate that the applicant is a chronic diabetic patient. 9. The trial court accepted the plea of the respondents on the ground urged by applicant for setting aside ex parte decree. As a matter of fact, the perusal of the application reveals that the ground for setting aside ex parte decree and condonation of delay are common and could not be splited. 9. The trial court accepted the plea of the respondents on the ground urged by applicant for setting aside ex parte decree. As a matter of fact, the perusal of the application reveals that the ground for setting aside ex parte decree and condonation of delay are common and could not be splited. The judgments relied upon by the petitioner referred to above, have laid down proposition of law that in absence of any application for condonation, the court has no jurisdiction to condone the delay. The proposition is well settled. However, the present case, is not one where there is no application for condonation of delay though it is a fact that there is no distinct and separate application seeking condonation of delay and non applicant filed one composite application for setting aside the ex parte decree and for condonation of delay. There is no provision under law which forbids filing of composite application. Learned counsel for petitioners has not been able to show any provision of law which require filing of distinct application for condonation even when the ground for setting aside and condonation are common.The judgments cited by the learned counsel for the petitioners have no application to the facts of the present case, as there is specific prayer for condonation of delay in the application for setting aside ex parte decree on the same and common grounds. I, therefore, reject the contention of the learned counsel for the petitioners and disagree with him that the order of the trial court is without jurisdiction. 10. Apart from above circumstances, the trial court in its wisdom and based upon facts/ material before it, exercised its discretion in allowing application for setting-aside the ex parte decree by condoning the delay also. The view taken by the trial court, is one of the possible view emerging from the record. The revisional authority cannot and should not interfere in exercise of judicial discretion by the court below. 11. In view of the above, I find no merit in this revision petition, which is accordingly dismissed. 12. At this stage, Mr.Achal Sethi, learned counsel for petitioner submits that the civil suit is pending since 1992 and there is considerable delay in its disposal. 13. 11. In view of the above, I find no merit in this revision petition, which is accordingly dismissed. 12. At this stage, Mr.Achal Sethi, learned counsel for petitioner submits that the civil suit is pending since 1992 and there is considerable delay in its disposal. 13. Under these circumstances, I direct the trial court to fix the dates in the suit after every fortnight for expeditious trial and avoid granting unnecessary adjournments to the parties.