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2005 DIGILAW 635 (PAT)

Life Insurance Corporation Of India v. Sheo Pujan Prasad

2005-07-24

R.N.PRASAD

body2005
Judgment 1. The revision has been filed against the order dated 24.8.2004 passed by District Judge, Rohtas in Money Appeal No. 1 of 2004 whereby the appeal filed by the petitioners has been rejected on the ground of limitation stating that no sufficient cause has been shown for delay in filing the appeal. 2. The plaintiff-opposite party filed Money Suit No. 19/2000 before the Subordinate Judge IX Sasaram, against the petitioners. The petitioners did not appear in the suit. The suit was taken up for ex-parte hearing and it was decreed ex-parte on 14.8.2003. The petitioners filed an appeal against the judgment and decree before the District Judge, Sasaram bearing Money Appeal No. 1/2004 alongwith a petition under Section 5 of the Limitation Act for condoning the delay in filing the appeal stating therein that they had no knowledge of the suit/decree in the suit. The limitation petition was rejected on the ground that no sufficient cause has been shown and consequently the appeal was also dismissed by the order impugned. 3. The submission of the learned counsel for the petitioners is that sufficient cause was shown as the petitioners had no knowledge of the suit/decree nor any summons was served on them. The appellate Court has misconstrued the cause shown by the petitioners which has resulted in rejection of the limitation petition, and consequently the appeal has been dismissed. On the other hand, counsel for the opposite party supported the order impugned and stated that revision petition is not maintainable. He relied upon a decision in the case of Shyam Sundar Sharma vs. Pannalal Jaiswal & Ors. 2005(1) PLJR 137 (SC). 4. On consideration of the submission made by the counsel for the parties this much is obvious that the money suit was filed by the plaintiff-opposite party. The petitioners did not appear ir, the suit on the ground that no valid summons was served upon them. In the judgment the fact has been admitted that defendant did not appear in the suit and as such the suit was taken up for ex-parte hearing and it was decreed ex-parte. The petitioners coming to known the judgment and decree passed in the money suit filed an appeal alongwith a petition under Section 5 of the Limitation Act for condoning the delay. The petitioners coming to known the judgment and decree passed in the money suit filed an appeal alongwith a petition under Section 5 of the Limitation Act for condoning the delay. It was explained in the limitation petition that they had no knowledge of the suit as no summons was served upon them nor they had knowledge of the decree in the suit, on coming to know about the judgment and decree they preferred the appeal. The appellate Court rejected the appeal on the ground that no sufficient cause has been shown. 5. Counsel for the opposite party submitted that the revision is not maintainable. In support of the submission he relied upon a decision in the case of Shyam Sundar Sharma (supra). In the aforesaid case the suit was decreed ex-parte against which the defendant filed a petition under Section 9 Rule 13 CPC alongwith an application under Section 5 of the Limitation Act. The said limitation petition was allowed which was upheld upto the High Court. The defendant also filed a regular appeal against the ex-parte judgment and decree accompanied with an application under Section 5 of the Limitation Act. However, the limitation petition filed in the regular appeal by defendant was dismissed in default and consequently the appeal was also dismissed in default. The question arose for decision as to whether the petition under Order 9, Rule 13 CPC would be maintainable when regular appeal was dismissed in view of the explanation to Order 9 Rule 13 which says that, "Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex-parte decree." The Apex Court in the circumstances held that the petition under Order 9, Rule 13 will not be maintainable in view of the explanation to Order 9, Rule 13 CPC. The said decision in appeal cannot be treated at par with the non-filing of the appeal or withdrawal of the appeal. It is thus obvious from the aforesaid decision that the Apex Court has passed the order in different context which has no application in the facts and circumstances of the present case. The said decision in appeal cannot be treated at par with the non-filing of the appeal or withdrawal of the appeal. It is thus obvious from the aforesaid decision that the Apex Court has passed the order in different context which has no application in the facts and circumstances of the present case. 6 With regard to the rejection of the limitation petition on the ground that no sufficient cause was shown, it would be pertinent to mention herein that the legislature conferred power to the Court to condone the delay so that the case may be disposed of on merit. The Court in such a matter takes a lenient view to condone the delay. In this regard a decision in the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji & Ors. 1987 (2) SCR 387 =AIR 1987 Supreme Court 1353), the Apex Court has held, "the expression sufficient cause employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy." It has further been held that "refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. Every days delay must be explained does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. Similar view was taken in the case of State of Bihar and others vs. Kameshwar Prasad Singh and others, 2000(3) PLJR 81 (SC). 7. In this case cause was shown that no summons was served on the petitioners and as such they had no knowledge of the suit/decree in the suit. Therefore, it is evident that in absence of knowledge the appeal was filed after the expiry of the period stipulated for filing the appeal. 7. In this case cause was shown that no summons was served on the petitioners and as such they had no knowledge of the suit/decree in the suit. Therefore, it is evident that in absence of knowledge the appeal was filed after the expiry of the period stipulated for filing the appeal. In such a situation each day, each hour is not required to be explained. The Court below thus, has committed error in rejecting the petition for condoning the delay on the ground that no sufficient cause has been shown and consequently dismissal of the appeal. 8. Thus, on consideration as discussed above, the revision petition is allowed. The order impugned is hereby set aside, but without cost. The Appellate Court is directed to deside the appeal on merit.