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2010 DIGILAW 348 (JK)

Shabir Ahmad Najar v. Zooni

2010-06-05

Hasnain Massodi

body2010
1. The petitioner through medium of instant Civil Revision calls in question Order of Learned Ist Additional District Judge Pulwama dated 20th March 2010, whereby Learned Judge has declined to condone less than two weeks delay in filing First Civil Appeal against the exparte judgment and decree, passed by Learned Munsiff, Pulwama in Eviction Suit titled Mst. Zooni and anothers v. Shabir Ahmad Najar (Suit No.53-numbri) 2. In order to understand controversy involved, the relevant facts need to be noticed first. 3. The respondent commenced Eviction Suit against the petitioner in the court of Munsiff, Pampore on Ist of August 2002. The suit was later transferred to the court of Munsiff Pulwama. The respondent asked for an ejectment decree in respect of a shop existing on plot of land bearing survey No.589 Min, situated at National Highway Kadlabal, Pampore, against the petitioner on the grounds set out in the suit. The respondent also asked for a direction to the petitioner to deposit an amount of Rs.7,000/- on account of arrears of rent, against the petitioner. The petitioner, after contesting the suit for a few years, absented himself from the proceedings on 29th of May 2008. On 5th of May 2008, the earlier date of hearing, both the parties were absent. The Trial Court on 29th of May 2008 did not set the petitioner exparte but proceeded to close his evidence. The petitioner did not appear thereafter before the Trial Court. The Trial Court on 17th of July 2008 heard arguments in exparte and on 9th of August 2008 rendered the final judgment, operative portion whereof reads as under:- "the suit of the plaintiff is decreed and a decree of eviction is passed in favour of the plaintiff and against defendant No.1 directing the latter to hand over the possession of the suit shop to the plaintiff. A decree of mandatory injunction is also passed against the defendant No.1 to pay the plaintiff the outstanding rent of rupees seven thousand which had accrued prior to the institution of the suit with interest thereon at the rate of six percent to the date of realization. No costs. Office to prepare decree sheet in accordance with the terms of the decree and file after due completion be consigned to records." 4. No costs. Office to prepare decree sheet in accordance with the terms of the decree and file after due completion be consigned to records." 4. Though the Trial Court did not mention in the operative part of the judgment that the suit was decided in exparte, yet the minutes of the proceedings as also the judgment itself sufficiently indicate that the suit was decided in exparte. 5. The petitioner on 24.11.2008 filed First Civil Appeal against judgment and decree dated 9.8.2008 in the Court of Principal District Judge Pulwama. The petitioner conscious of delay in filing the appeal, put up an application for condonation of delay. The ground set up by the petitioner to explain the delay was that the counsel engaged by the petitioner to appear on behalf of the petitioner in Munsiff Court Pampore, failed to appear in the Munsiff Court Pulwama and due to non-appearance of the counsel, the petitioner was set exparte. It was insisted that counsel representing the petitioner in Munsiff Court, Pampore continued to appear in Munsiff Court, Pulwama till May 2008, making the petitioner to believe that the petitioner was duly represented. The petitioner insisted that there was no negligence on his part and his absence from the proceedings and ensuing order was attributable to negligence of his counsel. The petitioner pleaded that due to turmoil in the Valley, the petitioner was not in a position to personally appear before the Trial Court. The petitioner insisted that he acquired knowledge regarding exparte judgment and decree on 4th of November 2008 and immediately applied for the certified copies and without wasting any time, approached the First Appellate Court. The petitioner contended that as per law laid down by the Supreme Court the cases are to be decided on merits after the parties are provided an opportunity to put forth their case. The respondent resisted the application on the grounds that the petitioner was required to appear in the Court on each and every date of hearing notwithstanding his having engaged a Lawyer and that the alleged negligence on the part of Lawyer was not valid ground to explain and condone delay. The respondent complained that the suit was pending for about six years and condonation of delay was likely to prejudice her rights. 6. Learned Additional District Judge Pulwama vide order dated 20.3.2010, impugned herein, dismissed the application for condonation of delay. The respondent complained that the suit was pending for about six years and condonation of delay was likely to prejudice her rights. 6. Learned Additional District Judge Pulwama vide order dated 20.3.2010, impugned herein, dismissed the application for condonation of delay. Learned Appellate Court, after reproducing the facts, noticed law laid down in AIR 1998 SC 2276 , SLJ 2008 (II) and AIR 2002 SC 1201 , SLJ 2008 (II) 635 and proceeded to hold that the petitioner had not made out any sufficient cause for condonation of delay in filing the appeal. What appears to have weighed with the Court was that the petitioner had been guilty of the negligence in pursuing case right from the date of institution of the suit till final decision. It appears that the Court made reference to the case law on the subject, as if to complete a formality, and did not pay any attention to principles of law emerging therefrom. While in AIR 1998 SC 2276 , the Courts are asked to apply the law of limitation with all rigour. In AIR 2002 SC 1201 , the Courts are advised not to take pedantic and hyper technical view. The Courts are reminded that explanation furnished should not be rejected when arguable points of facts and law are involved. It reminds the Court that "acceptance of explanation furnished is a rule and refusal an exception". In SLJ 2008(II) 635, the party, asking for condonation of delay, was found guilty of deep and long slumber and thus the case before the Ist Appellate Court was distinguishable on facts. 7. The Learned Court failed to appreciate, that only delay of less than two weeks was involved in filing appeal and that the petitioner had come up with an explanation that merited to be considered and even accepted. The Court also took into account conduct of the petitioner from the commencement of the suit and not whether the petitioner had sufficient cause for delay in filing appeal. In AIR 1987 SC 1353 the Supreme Court held that the expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply law in a meaningful manner, which subserves the ends of justice, that being the life purpose for existence of institution of Courts. In AIR 1987 SC 1353 the Supreme Court held that the expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply law in a meaningful manner, which subserves the ends of justice, that being the life purpose for existence of institution of Courts. The Supreme Court laid down following principles to be followed while dealing with the application for condonation of delay:- * Ordinarily a litigant does not stand to benefit by lodging an appeal late. * Refusing to condone 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 day’s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner. * When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. * There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. * It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 8. The baseline is that rules of limitation are not punitive in character and meant to destroy the rights of the parties and that the delay in approaching the Court within prescribed period must be condoned if the explanation offered is plausible and convincing and surrounding circumstances, are not indicative of the delay being part of dilatory tactics or the person asking for delay being guilty of gross negligence. 9. In Balakrishnan v. M. Krishnamurthy, AIR, 1998 SC 242, it was held:- "A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. 9. In Balakrishnan v. M. Krishnamurthy, AIR, 1998 SC 242, it was held:- "A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not putforth as part of a dilatory strategy the court must show utmost consideration to the suitor." 10. Though the period of delay is not by itself decisive of the fate of an application for condonation of delay, yet long and inordinate delay on the part of a petitioner, seeking condonation of delay may be an important circumstance in deciding whether the delay, was intentional and deliberate or otherwise. 11. In AIR 2004 SC 2191, it was held:- The proof of sufficient cause is a condition precedent for exercise of extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. The expression "sufficient cause" should therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every days delay". 12. In the present case, the court appears to have failed to appreciate that the judgment and decree, appealed against was passed in exparte and that arguable points of facts and law were involved in the appeal. The court was expected to be alive to the fact that the petitioner’s evidence was closed at his back and it was debatable whether the trial court on the date the petitioner absented himself from the proceedings was required to set exparte the petitioner or was competent to pass an order, closing petitioner’s evidences and whether the relief granted was in accordance with the law. The court has taken pedantic and hyper technical view of the matter and dismissed appeal and time barred, oblivious, to the fact that the important question of law and fact were raised in the appeal and that the delay on the part of the petitioner was neither inordinate, nor intentional and deliberate. 13. So viewed, Ld. Ist. Addl. District Judge Pulwama while passing the impugned order exercised jurisdiction in arbitrary manner with material irregularity and in the process caused failure of justice. The order of Ld. Addl. District Judge Pulwama dated 20th March 2010 rejecting application for condonation of delay deserves to be set-aside. 14. This does not clinch the matter. 15. The Executing Court after it became aware of fate of the condonation of delay application, acted in most rash and irresponsible manner. It is apt to point out that on the date the Civil Ist. Appeal against the judgment and decree with condonation of delay application was filed the judgment and decree were directed by the Ist. Appellate Court to remain in abeyance. The Executing Court was duly informed of the order of 1st. Appellate Court and resultantly no effective proceedings were taken in the execution petition. On 28th April 2010 the decree holder appeared before the Executing Court. The court of its own assumed that the judgment debtor was absent despite being aware of the fate of his appeal. The Executing Court, after making an observation in this regard, proceeded to issue non bailable warrant addressed to SHO Pampore against the judgment debtor. The matter was directed to come up on 3rd May 2010. On said date the judgment debtor was brought before the Court in execution of non-bailable warrant. The judgment debtor, as per minutes of the proceedings, was informed in the Court about the decree, asked to handover vacant possession of the suit shop to the decree holder and also to pay an amount of Rs.7,000/- on account of arrears of rent with 06% interest to the decree holder. The judgment debtor was further informed in Court on 03.05.2010 that in case of either of defaults the judgment debtor would be committed to civil prison. Interim order dated 3.5.2010 records that the judgment debtor refused and his signatures were taken on margin of the order sheet. The judgment debtor was further informed in Court on 03.05.2010 that in case of either of defaults the judgment debtor would be committed to civil prison. Interim order dated 3.5.2010 records that the judgment debtor refused and his signatures were taken on margin of the order sheet. Thereafter on 3.5.2010 the Executing Court took up the matter again and the counsel for the decree holder deposited an amount of Rs.1200/- as subsistence allowance and the judgment debtor was committed to civil prison for a period of one month or till payment of the arrears of rent. The Executing Court, while the judgment debtor was in the civil prison, took up the matter on 10th/11th of May 2010, recorded absence of judgment debtor and that the judgment debtor was in civil prison and none of his legal heirs were present in the Court. The Executing Court thereafter issued a commission to the Nazir of the Court, fixed his fee as Rs.3,000/- and asked the Nazir to go to spot, break open the locks of the shop and make inventory of the goods, if any, lying in the shop and handover possession of the shop to the decree holder. 16. It is stated by the learned counsel for the petitioner that the locks of the shop have been broken up while the petitioner was in civil prison. The possession of the shop taken over in a most rash and slipshod manner. 17. The mode and manner in which the Executing Court has proceeded in the matter, is highly objectionable, to say the least. 18. Order 21 Rule 37 to 40 CPC, lays down the procedure to be followed by the Executing Court when the application for execution of decree for payment of money by arrest or detention of a judgment decree is made to the Executing Court. The course open to the Executing Court is to issue the notice to the judgment debtor and ask him as to why he may not be committed to civil prison, unless of course the Court is satisfied that the judgment debtor is likely to abscond or leave the local limits of the Court. In the present case neither any affidavit was sworn to this effect nor Court otherwise recorded its satisfaction that in its opinion for the reasons given the judgment debtor was likely to abscond or leave the local limits of the Court. In the present case neither any affidavit was sworn to this effect nor Court otherwise recorded its satisfaction that in its opinion for the reasons given the judgment debtor was likely to abscond or leave the local limits of the Court. On 28.4.2010, neither the court had any such information nor was any subsistence allowance deposited by the judgment debtor. The court nonetheless proceeded to issue a non-bailable warrant on mere assumptions and presumptions. In terms of Order 21 Rule 40 CPC, on the date the judgment debtor appears before the court in obedience to the notice, issued under Rule 37 or is brought before the Court after being arrested in execution of a warrant, the Court is to proceed to hear the decree holder and take all such evidence in support of execution petition. It is after that the judgment debtor is to be given an opportunity to show cause why he should not be committed to civil prison. The Executing Court pending conclusion of inquiry under Order 21 Rule 40 (1) CPC may order the judgment debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance. It is only after conclusion of the inquiry under Order 21 Rule 40 Sub Rule 1 CPC, the Court may make an order, committing the judgment debtor to civil prison. The Court even at this stage is empowered rather advised to give the judgment debtor an opportunity of satisfying the decree and before making an order of detention leave the judgment debtor in the custody of an officer of the Court for a period not exceeding 15 days or release him on his furnishing security to the satisfaction of the Court for his appearance. The scheme envisioned under Order 21 Rule 37 to Rule 40 CPC is to afford the judgment debtor an adequate opportunity to satisfy the decree so as to escape the civil prison. The object of Order 21 Rule 37 to 40 is not to punish the judgment debtor but only to ensure execution of the decree. 19. The scheme envisioned under Order 21 Rule 37 to Rule 40 CPC is to afford the judgment debtor an adequate opportunity to satisfy the decree so as to escape the civil prison. The object of Order 21 Rule 37 to 40 is not to punish the judgment debtor but only to ensure execution of the decree. 19. The Executing Court as must be evident by now, has observed the rules of procedure in breach and in the process violated the rights available to the judgment debtor under Order 21 Rules 37 to 40 CPC including the right to have an opportunity to oppose the motion to commit the judgment debtor to civil prison. The Executing Court, in effect, has used the power to commit the judgment debtor to civil prison as a tool to punish the judgment debtor rather than, a measure to ensure satisfaction of the decree. What is worst, the Executing Court, for the reasons best known to it, has converted civil prison of the judgment debtor into an opportunity to evict him from the shop under his tenancy in his absence, leaving almost no option for him to seek remedy against the order of Ist. Appellate Court dated 20.3.2010 and the decree available under law, before his eviction from the suit shop under the decree impugned in the appeal. The Executing Court has not concealed its zeal to see the decree willy-nilly executed, by fixing a fee of Rs.3000/- for the Nazir to break open the locks of the suit shop and handover its possession to the respondent. It was least realized that execution of a decree was part of the duty of Nazir of the Court and no incentives like fee payable to a Commissioner were to be given, prompting immediate action in the matter. The Executing Court by acting in the afore discussed manner has exercised jurisdiction vested in it with material irregularity resulting in miscarriage of justice. 20. Judicial independence and judicial accountability are two faces of the same coin. Whenever we speak of judicial independence the question of judicial accountability surfaces on its own, for they are inter-dependent. The judges are answerable to their conscience and the law and are expected to administer the law impartially, without fear or favour, ill-will or malice. 20. Judicial independence and judicial accountability are two faces of the same coin. Whenever we speak of judicial independence the question of judicial accountability surfaces on its own, for they are inter-dependent. The judges are answerable to their conscience and the law and are expected to administer the law impartially, without fear or favour, ill-will or malice. A judge whatever the intentions, must not allow impulses and emotions to control the decision making and in the process loose sight of the rules that delineate course of judicial proceedings. A Judge has no freedom to act at his whim and caprice unmindful of the procedure. Benjamin Cardozo in his treatise, "The Nature of Judicial Process" voices the caution against disregard of rule book and surrender to sentiments, in following words: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to `the primordial necessity of order in the social life’. Wide enough in all conscience is the field of discretion that remains." 21. In the case in hand the Presiding Officer of the Executing Court, unfortunately, has allowed the sentiments to overcome the decision making process and responded to a situation, by no means extraordinary and well taken care of the rules, in a reactionary manner. The Presiding Officer has issued a non bailable warrant that also addressed to a particular Police Officer, where a notice was required to be issued and caught the petitioner unawares, least realizing that arrest and detention amounted to curtailment of the right of personal liberty guaranteed under Article 21 Constitution of India and that an order for arrest and detention of a order of a court at a lower rung of the judicial hierarchy. The present case and such other cases make it imperative for the State Judicial Academy to organize batch-wise comprehensive training programmes for the Presiding Officers of the Munsiff/Magisterial Courts. In the event suggestion finds approval of the competent authority, the Presiding Officer of the Executing Court must undoubtedly figure in the Ist. The present case and such other cases make it imperative for the State Judicial Academy to organize batch-wise comprehensive training programmes for the Presiding Officers of the Munsiff/Magisterial Courts. In the event suggestion finds approval of the competent authority, the Presiding Officer of the Executing Court must undoubtedly figure in the Ist. Batch of the officers selected for such training programme. 22. A copy of the order be forwarded to the Registrar General, J&K High Court and Director, J&K State Judicial Academy, for information and necessary action. 23. The Revision Petition is accordingly disposed of alongwith connected CMP(s).