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Madhya Pradesh High Court · body

2009 DIGILAW 1151 (MP)

Darshan Singh v. Collector Singh

2009-09-23

A.M.NAIK

body2009
ORDER 1. Facts relevant for the purpose of this appeal are in very narrow compass. Plaintiff/respondents instituted a suit for declaration of title and perpetual injunction which was decreed on 1st November, 2007 by the Courts of Civil Judge Class-I, Ambah, District Morena. Defendants/appellants preferred a regular CivlAppea1 accompanied by application under Order 41 Rule 3-A of CPC read with section 5 of Limitation Act on 1.1.09. In the application for condonation of delay, it was stated that the appellant No.3, Mahaveer Singh was looking after the case, who is as illiterate agriculturist. He was not informed by his counsel in the trial Court about the judgment dated 1st of November, 2007. On 10.11.08 plaintiffs/ respondents threatened them that they have succeeded in the suit and they will not allow the defendants to perform agricultural operations on the suit land. Mahaver Singh immediately, visited his advocate at Ambah, who did not respond satisfactorily. Thereafter, he contacted another advocate, namely, Shri Abhishek Kamthan, who collected the information, since Mahaveer Singh was not having file papers with him. Shri Kamthan, learned Advocate, informed the appellant Mahaveer Singh about the suit having been decreed in favour of plaintiffs on 1.11.07. After acquiring information, an application to obtain certified copy of the judgment and decree of the trial Court was submitted on 12.11.08. Certified copies were delivered on 15.12.08. After going through it, defendants/appellants were asked to obtain the certified copy of Khasra of Sam vat 2007, 2009, 2020-2024, 2025, 2026-2030. They were so obtained from the office of Collector, Morena on 29.12.08. Mahaveer Singh made available all the said papers to counsel at Morena for preparation of appeal which was submitted on 1.1.09 alongwith an application for condonation of delay because there was winter vacation in the intervening period from 22.12.08 to 31.12.08. Rest of the time was taken by the counsel in preparation of regular Civil Appeal. Thus, it was prayed that the delay in submission of regular Civil Appeal before the Court of Additional District Judge, Ambah District Morena may be condoned. 2. Leaned lower appellate Judge even without issuing notice to the opposite party (i.e. present plaintiffs/respondents) dismissed the application for condonation of delay and further dismissed the appeal as barred by limitation. Thus, it was prayed that the delay in submission of regular Civil Appeal before the Court of Additional District Judge, Ambah District Morena may be condoned. 2. Leaned lower appellate Judge even without issuing notice to the opposite party (i.e. present plaintiffs/respondents) dismissed the application for condonation of delay and further dismissed the appeal as barred by limitation. Aggrieved by the same, present appeal has been preferred which is admitted and heard on the following substantial question of law: Whether the appellate Court has acted with illegality in dismissing appeal as barred by time without holding an enquiry on the application for condonation of delay?" 3. Shri P.C. Chandil, learned counsel and Shri K.S. Tomar, Sr.counsel made their respective submissions. 4. Shri P. C. Chandil, learned counsel appearing on behalf of appellants contended that the application for condonation of delay contained factual assertions which was duly supported by affidavit. There was nothing on record to disbelieve the contents which were duly supported by the affidavit. Thus, the learned lower appellate Judge has acted illegally in denying the condonation. According to him, sufficient cause within the meaning of Section 5 of Limitation Act was duly established and in the absence of contraty evidence, the same ought to have been accepted. The reasons assigned by learned lower appellate Judge are not sustainable in law, according to learned counsel Shri Chandil. 5. Shri Tomar, learned Sr. Advocate while countering it submitted that there was a gross negligence on the part of defendants and in the absence of valid explanation for delay, no interference is warranted in the impugned order. Shri Tomar, learned Sr. Advocate placing reliance on Division Bench decision of Madras High Court in the case of M.Subramania Mudaliar v. K. Janardhanam (AIR 1994 Madras 102) contended that there being proven gross negligence on the part of appellants, the application for condonation has been rightly rejected. 6. I am not impressed with this submission because in the light of unreburred affidavir for the time being on record, it cannot be treated as a case of proven gross negligence. I may also profitably quote the following observations of Supreme Court in the case of M.K. Prasad v. P. Arumugam, (2001) 6 SCC 176 . 6. I am not impressed with this submission because in the light of unreburred affidavir for the time being on record, it cannot be treated as a case of proven gross negligence. I may also profitably quote the following observations of Supreme Court in the case of M.K. Prasad v. P. Arumugam, (2001) 6 SCC 176 . "In the instant case, the appellant tried to explain the delay in filing the application for setting a side the exparte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as. vigilant. as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable while deciding the application for setting aside the exparte decree, the Court should have kept in mind the judgment impugned, the extent of property involved and the stake of the parties. We are of the opinion that the inconvenience caused to a respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interest 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 the exparte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting the exparte decree as well. "Aforesaid observations should not have been lost sight of by the lower appellate Judge while passing the order on an application under Section 5 of Limitation Act. 7. It is almost settled that judicial system of this country encourages bi parte proceedings on merits. Technicalities are not permitted to come in the way while imparting justice. An illiterate villager normally trusts his lawyer that his interest will be well protected and he will be guided by him for taking appropriate steps for such protection. 7. It is almost settled that judicial system of this country encourages bi parte proceedings on merits. Technicalities are not permitted to come in the way while imparting justice. An illiterate villager normally trusts his lawyer that his interest will be well protected and he will be guided by him for taking appropriate steps for such protection. There is nothing wrong if a client expects from his lawyer that in case of desirability of appeal he would be guided timely by his lawyer to take appropriate steps. In the present case it was expressly and specifically stated in the application for condonation of delay that the case on behalf of the defendants/appellants was being looked after by Mahaveer Singh, who was and is an illiterated agriculturist. He has stated on oath that he was not aware of the decree granted in favour of the plaintiffs/respondents and was not so informed by his lawyer. This fact which is duly supported by affidavit, could not have been disbelieved by learned lower appellate Judge at his own whims. On perusal of the impugned order, it may be seen that learned lower appellate Judge has not even taken affidavit into consideration. He has not even discussed it and has not further disbelieved. This being so, there is absolutely no reason to dismiss the application of defendant/appellants at the thershold out rightly. Learned lower appellate Judge ought to have considered the seriousness of such rejection that this may deprive the appellants from establishing their case on merits. 8. Sanctity of affidavit has been explained by this Court on various occasions. This Court in the case of Suresh Singh v. Dinanath, 1986 (II) MPWN 147 had found that sufficient cause shown by the appellant in his application was that he was operated upon for birth control and that is why he was indisposed and could not obtain the copy within the period of limitation and it is the cause due to which appeal could not be filed within the period of limitation and hence, it should be condoned. Though he filed an affidavit also in support of his application, yet the lower Court rejected the application on the ground that no certificate regarding the birth control operation has been filed by him. Though he filed an affidavit also in support of his application, yet the lower Court rejected the application on the ground that no certificate regarding the birth control operation has been filed by him. In my opinion, when an affidavit was filed alongwith the application under Section 5 of Limitation Act and it was not controverted by the other party because the other party was not before it, the lower Court should have accepted the unrebutted statement on oath of the appellant (supra). 9. In the case of Kher Singh v. Phoolchand (1981 JLJ SN 5) this Court observed: "Now on merits, the application submitted by the defendant under Order 9 Rule 13 was duly supported by his affidavit. An affidavit filed in support of an application for setting aside exparte decree is evidence in the case. The defendant submitted the affidavit along with the application and it was received by the Court, and, as such, the affidavit filed by the defendant has to be treated as evidence in the case, The plaintiff has not filed any counter affidavit. No dispute was thus raised by the plaintiff non-applicant necessitating any enquiry. The facts averred show the circumstances in which the defendant could not, inspite of due diligence, appear in the case. His reliance on counsel for the purpose cannot be regarded to be motivated by any ulterior motive or an out-come of gross negligence. The provisions of Order 9 are not penal in character. In absence of motive to remain deliberately absent from the Court, the defendant should be given a chance to meet the case on merits. Rules of procedure are not to be so strictly construed and applied as to deny justice." 10. Division Bench of this Court in the case of Radha Kishan v. Commissioner of Sales Tax, 1980 (II) MPWN 97 has held that there is no reason to disbelieve the affidavit in the absence of rebuttal or in the absence of cross-examination. Since the learned lower appellate Judge had not issued the notice to the opposite party, there could not have been any prayer for cross-examination. Learned lower appellate Judge did not choose to suo motu cross-examine the deponent on the contents of application which was supported by affidavit. Thus, there was absolutely no reason to disbelieve the contents which were duly supported by affidavit. Learned lower appellate Judge did not choose to suo motu cross-examine the deponent on the contents of application which was supported by affidavit. Thus, there was absolutely no reason to disbelieve the contents which were duly supported by affidavit. It is true that the question of condonation of delay under Section 5 of Limitation Act may be decided on the basis of affidavit but such decision has to be obviously taken in judicious manner with an intent to promote justice. In the absence of rebuttal or patent falsity of the affidavit, the same cannot be disbelieved. Learned lower appellate Judge has dismissed the application for condonation, assuming that the defendants, who contested the suit till end must be aware of the judgment and decree having been passed against them. This finding is based purely on surmises and conjectures and does not derive strength from the material on record. Learned lower appellate Judge did not bother to call the record of trial Court even to examine that whether the parties were personally present on the date of final arguments and finally on the date of judgment. He has further not mentioned about the affidavit having been filed in support of the application for condonation of delay. He has neither discussed it nor has taken it into consideration. He has not even disbelieved the affidavit. It is revealed in the impugned order that the learned lower appellate Judge has proceeded on his own whims, ignoring the settled procedure as well as affidavit on record. He has also passed the impugned order overlooking the object of Section 5 of Limitation Act empowering the Court to condone the delay in appropriate cases. He has also not held any enquiry even on affidavit by issuing notice to the opposite party on the question of condonation of delay and has thus acted with illegality in dismissing the appeal as barred by limitation. 11. In the result, substantial question of law is decided in favour of the appellants. Impugned order is hereby set aside. Learned lower appellate Judge is directed to decide the application for condonation of delay afresh in accordance with law after giving opportunity of hearing to the respondents. Parties to appear before the lower appellate Court on 20th of October 2009.