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Madhya Pradesh High Court · body

2008 DIGILAW 1455 (MP)

SHAIKH KHALIL v. SHAIKH JAMIL

2008-12-19

ABHAY M.NAIK

body2008
Judgment ( 1. ) SHORT facts relevant for the purpose of this appeal are that the plaintiff/respondent No. 1 instituted a suit before the Court of XIII civil Judge Class-II, Jabalpur, on 15. 9. 1982 for declaration of title, partition and mesne profits. It was decreed ex-parte. On 20. 11. 1992, an application under order 9 Rule 13 of the Code of Civil Procedure for setting aside ex-parte decree was filed which was registered as M. J. C. No. 19/92. ( 2. ) SIMULTANEOUSLY, a regular Civil Appeal under Section 96 of the Code of Civil procedure was filed by the defendant/appellant on 23. 2. 1993 which was registered as Civil Appeal No. 17-A/93. On 30. 3. 1993, the appeal was dismissed on account of non-payment of Court Fees as well as non-appearance of appellant and his counsel. ( 3. ) M. J. C. NO. 19/92 under Order 17 Rule 3 of the Code of Civil Procedure was rejected on 29. 3. 1994 since the appellant/defendant failed to produce his evidence in support of the application for setting aside ex-parte decree. Application submitted under Order 9 Rule 9 of the Code of Civil Procedure for restoration of m. J. C. No. 19/92 was rejected on 12. 5. 1995. Against such rejection, M. A. No. 60/95 was submitted by the defendants under Order 43 Rule 1 of the Code of Civil procedure which was dismissed by the Court of X Addl. District Judge, Jabalpur on 16. 9. 1996. ( 4. ) AFTER dismissal of M. A. No. 60/95, the defendant/appellant on 22. 8. 2000 submitted an application under Order 9 Rule 4 of the Code of Civil Procedure for restoration of Civil Appeal No. 17-A/93 along with an application under Section 5 of the Limitation Act for condonation of delay. Court of III Addl. District Judge, jabalpur, dismissed the application for condonation on the ground of delay of more than 7 years and five months for no justiciable reason on 12. 2. 2001. Consequently, the application under Order 9 Rule 4 of the Code of Civil Procedure also stood dismissed being barred by limitation without registration of the Misc. Judicial Case under Order 9 Rule 4 of the Code of Civil Procedure. Aggrieved by the same, present appeal has been preferred by the defendant/ appellant. ( 5. 2. 2001. Consequently, the application under Order 9 Rule 4 of the Code of Civil Procedure also stood dismissed being barred by limitation without registration of the Misc. Judicial Case under Order 9 Rule 4 of the Code of Civil Procedure. Aggrieved by the same, present appeal has been preferred by the defendant/ appellant. ( 5. ) SHRI Virendra Verma, learned counsel for the appellant contended that there is sufficient cause for the defendant/ appellant in submitting application for restoration of Civil Appeal No. 17-A/93 since he was busy in prosecuting the application for setting aside ex-parte decree. Dismissal of C. A. No. 17-A/93 on 30. 3. 1993 was not informed timely to the appellant by his counsel. Additionally, it is submitted that Civil Appeal No. 17-A/93 may be restored even on cost which will not prejudice the plaintiff/respondent No. 1. ( 6. ) COUNTERING the aforesaid, it is contended by Shri Parag Chaturvedi, learned counsel for the plaintiff/respondent No. 1 that the application for setting aside ex-parte decree was dismissed for want of evidence under Order 17 Rule 3 of the code of Civil Procedure. After its dismissal, it is not open for the defendant/appellant to press the regular appeal. This apart, it is contended that the Civil appeal was dismissed on 30. 3. 1993, whereas, the application for its restoration was submitted on 22. 8. 2000. There was no sufficient cause for not moving an application for restoration of Civil Appeal for more than seven years. Thus, it is contended that the impugned order has been rightly passed. ( 7. ) CONSIDERED the submissions and perused the record. ( 8. ) MUCH reliance has been placed by Shri Parag Chaturvedi, learned counsel for respondent No. 1, on the following passage of the decision of the Apex Court in the case of Rani Choudhary Vs. Lt. Col. Suraj Jit Choudhury ( AIR 1982 SC 1397 ) : "the legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. " An explanation has been added to Rule 13 of Order 9 of the code of Civil Procedure by virtue of Civil Procedure Code amendment Act, 1976 with effect from 1. 2. " An explanation has been added to Rule 13 of Order 9 of the code of Civil Procedure by virtue of Civil Procedure Code amendment Act, 1976 with effect from 1. 2. 1977 which reads as under : Explanation.- 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 that ex parte decree. ( 9. ) A bare perusal of this explanation goes to show that it will get attracted if an appeal is preferred against an ex parte decree and the same is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. In such a situation, an application for setting aside ex parte decree under Order 9 rule 13 of the Code of Civil Procedure would not lie after disposal of the appeal in the aforesaid manner. Effect of the explanation has been discussed and explained by the Supreme Court in Rani Choudharys case (supra) in the following words :- "the Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law. By enacting the Explanation, Parliament left it open to the defendant to apply under R. 13 of O. 9 for setting aside an ex parte decree only if the defendant had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer an adjudication by the appellate court on the merits of the decree of have the decree set aside by the trial court under R. 13 of 0. 9. The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under R. 13 of O. 9. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under R. 13 of O. 9. The disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation. " ( 10. ) THE passage relied upon by Shri Parag Chaturvedi, learned counsel appearing for the plaintiff/respondent No. 1 cannot be read and construed in a disjunct manner. It will have to be read as a whole with reference to other portions of the passage quoted above. Thus, the confinement of the defendant to a single course of action by virtue of the said explanation would be applicable only when he tries to approach the trial Court under Order 9 Rule 13 of Code of Civil Procedure for setting aside ex parte decree after disposal of his regular Civil Appeal on any ground except on that of withdrawal of appeal. Vice versa meaning cannot be given to the Apex court decision because the explanation itself would be applicable, when the defendant, after disposal of his regular Appeal tries to approach the trial Court for setting aside ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure this is presumably because in case, if, an appeal is preferred on merits against the ex parte decree, such a decree gets merged in the decision of the appellate court. Thus, the explanation may be invoked only when the appeal and its decision on any ground other than on the ground of withdrawal precede the application for setting aside ex parte decree under Order 9 Rule 13 of Code of Civil Procedure and decision thereon. ( 11. ) RANI Choudharys decision (supra) came up for consideration before the apex Court in the case of Shyam Sunder Sarma Vs. Pannalal Jaiswal and others [2005 (1) MPLJ 6], wherein Rani Choudharys decision was approved in the following passage : "15. We are not impressed by the argument of learned counsel for the appellant that the decision in Rani Choudharys case (supra) requires reconsideration. Pannalal Jaiswal and others [2005 (1) MPLJ 6], wherein Rani Choudharys decision was approved in the following passage : "15. We are not impressed by the argument of learned counsel for the appellant that the decision in Rani Choudharys case (supra) requires reconsideration. On going through the said decision in the light of the objects and reasons for the introduction of the explanation to Order IX, Rule 13 and the concept of an appeal as indicated by the Privy Council and this Court in the decisions already cited, the argument that an appeal which is dismissed for default or as barred by limitation because of the dismissal of the application for condoning the delay in filing the same, should be treated on a par with the non filing of an appeal or the withdrawal of an appeal, cannot be accepted. The argument that since there is no merger of the decree of the trial Court in that of the appellate Court in a case of this nature and consequently the explanation should not be applied, cannot also be accepted in the context of what this Court has earlier stated and what we have noticed above. " ( 12. ) IN the present case, the application under Order 9 Rule 13 of Code of Civil procedure was submitted on 20. 11. 1992, when the appeal under Section 96 of code of Civil Procedure was not even preferred by the defendant/appellant. Thus, there would be no application of the explanation to Order 9 Rule 13 of Code of civil Procedure. However, the effect of dismissal of application under Order 9 rule 13 of the Code of Civil Procedure would be that the defendant/appellant in civil Regular Appeal would be confined to the grounds of attack on merits only and shall not have a right to establish a sufficient cause within the meaning of order 9 Rule 13 of Code of Civil Procedure. This being so, the objection of Shri prag Chaturvedi regarding maintainability of the application for restoration of appeal is, hereby, not accepted. ( 13. ) SHRI Virendra Verma, learned counsel for the appellant further relying upon the decision of the apex Court in the case of N. Balakrtshnan Vs. M. Krishnamurthy ( AIR 1998 SC 3222 ), contended that dismissal of Civil Appeal on 30. 3. ( 13. ) SHRI Virendra Verma, learned counsel for the appellant further relying upon the decision of the apex Court in the case of N. Balakrtshnan Vs. M. Krishnamurthy ( AIR 1998 SC 3222 ), contended that dismissal of Civil Appeal on 30. 3. 1993 was not intimated to the appellant and the delay was caused on account of absence of intimation to the appellant. In the case of N. Balakrtshnan (supra), the trial Court dealing with an application under Section 5 of the Limitation Act had found the existence of sufficient cause due to failure of advocate to inform his client the result as well as to take action. ( 14. ) IN the present case, Civil Appeal No. 17-A/93 was also dismissed on account of non-payment of Court Fees. Obviously, a litigant is under an obligation to pay the Court Fees and the non-payment of Court Fees is in no case attributable to the lawyer alone who cannot be blamed for such non-payment unless he is already in receipt of the amount of Court fees. ( 15. ) APART from this, it may be seen that the defendant/appellant had already filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside ex-parte decree which was dismissed on 29. 3. 1994 for want of evidence under Order 17 Rule 3 of the Code of Civil Procedure. In the meantime, under Section 96 of Code of Civil Procedure (C. A. No. 17-A/93)the appeal was preferred and dismissed on 30. 3. 1993. The defendant/appellant further submitted an application under Order 9 Rule 9 of the Code of Civil Procedure for restoration of M. J. C. No. 19/92 (under Order 9 Rule 13 of Code of Civil Procedure ). Thus, he is found to be prosecuting his cause and was expected as a man of common prudence to remain aware of development of his appeal. Honble Supreme Court of India in the case of P. K. Ramachandran Vs. State of Kerala and another ( AIR 1998 SC 2276 ) has observed that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on. equitable grounds. ( 16. State of Kerala and another ( AIR 1998 SC 2276 ) has observed that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on. equitable grounds. ( 16. ) RELIANCE by Shri Virendra Verma on another decision of the Supreme Court in the case of M. K. Prasad Vs. P. Arumugam ( AIR 2001 SC 2497 ), is also distinguishable on facts on the basis of aforesaid discussions and also on the basis of the fact that M. A. No. 60/95 in the matter of Order 9 Rule 13 of Code of Civil procedure was dismissed on 16. 9. 1996. Thereafter, also the application for restoration of Civil Appeal was not preferred immediately, but was preferred after more than 3 years and 11 months. Instead, the suit for partition and mesne profit was instituted in the year 1982, plaintiff/respondent No. 1 has prayed for separate possession. Obviously, the defendant/appellant and other defendants may be deriving total benefits from the suit property. Their anxiety would always be in prolonging the case. This being so, after a period of about 28 years from the date of institution, it would not be desirable to show any liniency in the matter even on cost since it will highly prejudice the plaintiff. Reliance by Shri Verma, learned counsel on Union of India and another Vs. M/s Diamond Cement [ 2001 (3)MPLJ 371 ] is also of no assistance in the light of the aforesaid discussion. ( 17. ) APEX Court in the case of Mrs. Sandhya Rani Sarkar Vs. Smt. Sudha rani Debi and others ( AIR 1978 SC 537 ) has provided guidelines for dealing with an application under Section 5 of the Limitation Act in the following words : "it is undoubtedly true that in dealing with the question of condoning the delay under S. 5 the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay. However, it is not possible to lay down precisely as to what facts or matters would constitute sufficient cause under S. 5. However, it is not possible to lay down precisely as to what facts or matters would constitute sufficient cause under S. 5. But those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bonafides is imputable to a party, i. e. , the delay in filing an appeal should not have been for reasons which indicate the partys negligence in not taking necessary steps which he would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case. " ( 18. ) IN the case in hand, the defendant/appellant though was prosecuting his cause under Order 9 Rule 13 of Code of Civil Procedure until 16. 9. 1996, allowed his appeal (Civil Appeal No. 17-A/93) to be dismissed on 30. 3. 1993 and did not take appropriate steps for its restoration which is quite indicative of negligence as well as inaction and want of bona fide on his part. Suit being for separate possession by partition, plaintiff must have been deprived of the fruits, whereas, the defendant/ appellant must be taking undue advantage of the same. ( 19. ) ON perusal of the record, it is found that the appellant has mentioned that civil Appeal No. 17-A/93 was dismissed on 30. 3. 1993 which is stated to have been intimated to the appellant on 21. 8. 2000 after the record of appeal was inspected by his counsel. His local lawyer must have maintained a diary. He has stated on oath that he had attended the appeal on 12. 3. 1993 and 22. 3. 1993. On later date, the case was adjourned to 30. 3. 1993 for payment of Court Fees. Thus, the appeal must have been entered in the register/diary of the local lawyer. Day to day entries are made in the register/diary of a lawyer. There could have been no reason for not following the case. Moreover, the diary of the said lawyer was also not produced in the Court. ( 20. ) CONSIDERING the aforesaid and other factors of the case, learned lower appellate Court has rightly found that there was no sufficient cause for not preferring the application for restoration of Civil Appeal No. 17-A/93 at earlier stage. Apex Court in the case of Damodaran Pillai and others Vs. ( 20. ) CONSIDERING the aforesaid and other factors of the case, learned lower appellate Court has rightly found that there was no sufficient cause for not preferring the application for restoration of Civil Appeal No. 17-A/93 at earlier stage. Apex Court in the case of Damodaran Pillai and others Vs. South indian Bank Ltd. [2005 AIR SCW 4603] has observed that hardship may be a relevant consideration in applying the principles of interpretation of statute, but cannot be a ground for extending the period of limitation. ( 21. ) THUS, in the totality, the findings of the learned lower appellate Court that there was no sufficient cause for not preferring the application under Order 9 rule 4 of Code of Civil Procedure upto 22. 8. 2000 at earlier stage is based on correct appreciation of the material on record and warrants no interference. ( 22. ) IN the result, appeal being devoid of merit is, hereby, dismissed, however, with no order as to costs. Appeal dismissed.