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2011 DIGILAW 465 (GAU)

Basant Singhania v. Dilip Singhania

2011-05-30

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. This Civil Revision petition is directed against the Annexure-V order dated 22.07.2008 passed by the learned Assistant District Judge, Shillong, in Misc case No. 18(H) 2008 arising out of Title Suit No. 22 (SH) 2005, by which the application filed by the defendant in the suit who is the respondent in this Revision petition under Order 9 Rule 13 CPC to set aside the order for ex parte hearing of the Suit was allowed. The said order was carried on Review by the plaintiff petitioner but the said Review application has also been dismissed by order dated 03.09.2009 (Annexure-IX). Hence, this Revision petition. Another challenge made is against order dated 22.07.2008 passed in the Title Suit allowing the defendant respondent to file written statement after expiry of the stipulated period for doing so. For ready reference the impugned orders/their operative parts are quoted below:- IN THE COURT OF THE ASSISTANT DISTRICT JUDGE AT SHILLONG Misc. Case No. 18 (H) of 2009 Shri Dilip Singhania : Petitioner S/o (L) T. Singhania Thana Road, Shillong. : Opposite Party Shri Basant Singhania S/o (L) T. Singhania Thana Road, Shillong. 22.07.2008 Submission heard on 18.07.2008 and today is reserved for passing order. The Petitioner/Defendant filed an application for condonation of the delay in filing application under Order 9 Rule 13 CPC. The Notice was issued to the Opposite Party/plaintiff and the opposite party/Plaintiff also filed show cause, praying to allow his show cause and to dismiss the application filed by the Petitioner/Defendant. However, the Petitioner/Defendant's Counsel submitted that the Opposite party/Plaintiff had filed a suit for declaration and permanent injunction with regards to the landed property situated at Police Bazar Thana Road Shillong being TS No. 22(H) 05. The Petitioner/Defendant entered appearance and contested the suit. That on 31.03.2006, the Court passed an order directing the Case to proceed ex-parte against Petitioner/Defendant on failing of filing of W/S. That there is delay of 759 days in filing an application for setting aside the ex-parte order dated 31.03.2006, as there is lack of communication between the previous lawyers of the Petitioner/Defendant and they were not aware of the status of the Case. Hence pray to admit the petition and condone the delay and allow the Petitioner/Defendant to contest the case of merit. Hence pray to admit the petition and condone the delay and allow the Petitioner/Defendant to contest the case of merit. The Petitioner/Defendant relied for his submission upon 2007 57 AIC 942 OR 1 H.C) Orissa High Court between Suresh Bhai and Uiagar Urma and others. The Opposite Party/Plaintiff objected to the applications of the Petitioner/Defendant tried to mislead the Court by suppressing the facts. The Opposite Party/Plaintiff submits that delay for ling of the application Under Order 9 Rule 13 of CPC was 2(two) years and therefore the contention by the petitioner/Defendant that the delay was due to lack of communication with the previous lawyers contains no merit and this apparently shows that the intention of the Petitioner/Defendant is only to delay the Proceeding of the case and the Opposite/Plaintiff therefore pray to consider his Show cause and dismiss the application of the Petitioner/Defendant. Heard both the Counsels perused the case record. As the Parties are both the sons of Shri (L) T Singhania whose landed property was allotted by virtue of the Deed of family settlement. I am of the considered view to allow the petition of the Petitioner/Defendant and allow the Parties to contest on merit. Accordingly the petition for condonation of delay and the application Under Order 9 Rule 13 CPC is allowed and case is disposed of. Sd/- Smti. MB Chalam Asstt. District Judge Shillong. 03.092009 .... Upon considering prayer for reviewing the order dated 22.07.05 filed by the review petitioner/plaintiff, I have perused the written argument of the review petitioner/plaintiff and the answering OP/defendant, case record, relevant materials on record and an application under Section 114of the CPC being Petition No. 268/08 dated 25.08.08 for reviewing the order dated 22.7.08 passed by this Court in Misc. Case No. 18 (H) 08 arising out of Title Suit No. 22 (H) 2008. It is seen that all decrees of orders cannot be reviewed, the right of review has been conferred by Section 114 and Order 47 Rule 1 of the Code. Any person aggrieved:- (a) by decree or order for which no appeal is allowed by this code, but for which no appeal has been preferred. (b) by decree or order from which no appeal is allowed by this code. (c) by a decision on reference from a Court of small causes. Any person aggrieved:- (a) by decree or order for which no appeal is allowed by this code, but for which no appeal has been preferred. (b) by decree or order from which no appeal is allowed by this code. (c) by a decision on reference from a Court of small causes. May apply for review of Judgment to the Court which passed the decree or made the order and the Court may make such order there on as it thinks fit on the following grounds:- (1) discover by the applicant of new and important matter with in his knowledge or could not be produced by him at the time when the decree was passed or order made, or (2) on account of mistake or error apparent on face of record. (3) For any sufficient reason. However in the light of the above and after perusal the application for review, it appears to the Court that there is no sufficient ground for a review, hence under the above circumstances I am of the considered view to reject the application and to order proceeding of trial in TS No. 22(H)05. With this observation and order the review petitioner is disposed of." 22.07.2008 CR put up today. That in view of the Order dated 22.07.08 passed in Misc Case No. 17 (H) 08 and Misc Case No. 18 (H) 08 allowing condonation and setting aside the Order of this Court dated 31.03.06. Hence the Case is restored back to file and shall proceed accordingly. Fix 22.08.08 for W/S. 2. The aforementioned suit was filed by the present petitioner as the plaintiff for declaration and permanent injunction against the defendant/respondent. On receipt of notice, although the defendant entered appearance in the Suit and filed an application under Section 10 CPC but later on abandoned the proceeding and no longer appeared. Consequently, the learned trial Court vide its order dated 31.03.2006 ordered for ex-parte hearing of the Suit. For ready reference the said order dated 31.03.2006 is quoted below: - Plaintiff and defendant are present through hajira only. Notice issued to the parties returned duly served. No written statement is filed today. Hence the Suit shall proceed ex-parte. Deft through N. Khan, Advocate present through hajira only. Fix 20.04.2006 for ex-parte hearing. 3. After the aforesaid order providing ex-parte hearing/proceeding against the defendant, the defendant filed an application for setting aside the said order. Notice issued to the parties returned duly served. No written statement is filed today. Hence the Suit shall proceed ex-parte. Deft through N. Khan, Advocate present through hajira only. Fix 20.04.2006 for ex-parte hearing. 3. After the aforesaid order providing ex-parte hearing/proceeding against the defendant, the defendant filed an application for setting aside the said order. The application was filed under Order 9 Rule 13 CPC after a delay of 759 days. The application was accompanied by an application for condonation of delay in filing the said application under Order 9 Rule 13 CPC. While the delay condonation petition was registered and numbered as Misc. Case No. 17 (H) 2008 the application under Order 9 Rule 13 CPC was registered and numbered as Misc Case No. 18 of 2008. 4. Both the applications although filed separately, but the contents/statements therein were one and the same except in paragraph-10 of the delay condonation petition where there was mention of "759 day" while stating about the delay in filing the application. On the other hand, in paragraph 10 of the application under Order 9 Rule 13, the words "759 days" were not there. The only statement made in paragraph-10 of the said application was that there was delay in filing the application 5. The plaintiff petitioner filed his objection against the prayer for delay condonation and for setting aside the order for ex-parte hearing, such objection was filed jointly against both the delay condonation petition and the application under Order 9 Rule 13 CPC. In the said objection it was contended that there was no proper explanation towards filing the application after 759 days delay. It was also contended that the petition filed by the defendant respondent was bad in law and that the defendant tried to mislead the Court by suppressing the material fact. In paragraph 9 of the said objection it was stated that the counsel for the defendant had filed hazira on 31.03.2006 but did not file written statement or any petition seeking further time to file written statement. In paragraph-8 of the objection it was stated that the delay of two years was not properly explained and thus the ground for delay condonation allowing the application under Order 9 Rule 13 did not exist. 6. The learned trial Court on the basis of the aforesaid proceedings passed the above quoted Annexure V Order dated 22.11.2008. In paragraph-8 of the objection it was stated that the delay of two years was not properly explained and thus the ground for delay condonation allowing the application under Order 9 Rule 13 did not exist. 6. The learned trial Court on the basis of the aforesaid proceedings passed the above quoted Annexure V Order dated 22.11.2008. The only ground assigned for setting aside the order for ex-parte hearing was that the parties to the suit are brothers whose landed property have been allotted by virtue of Deed of Family Settlement. 7. The learned trial Court was not required to enter into the merit of the case, but was required to consider as to whether the delay was properly explained or not. The learned trial Court was also required to consider as to whether the application filed under Order 9 Rule 13 was maintainable or not. 8. It is in the above context Mr. B. Bhattacharjee, learned counsel for the plaintiff petitioner submits that the impugned order depicts total non application of mind. He further submits that the application under Order 9 Rule 13 CPC was not at all maintainable. 9. Being aggrieved by the aforesaid order, the plaintiff petitioner filed the Annexure VII Review Petition for setting aside the above quoted impugned order. In the Review application, the plaintiff petitioner raised various grounds including the ground of non-maintainability of the application under Order 9 Rule 13 CPC . It is the operative part of the Review order dated 03.09.2009 which has been quoted above. The said operative part of the order is preceded by the contentions raised by both the parties in support of their case. Be it stated here that, against the Review application, the defendant respondent filed his objection and the learned trial Court recorded the contentions raised by the parties in the Review application and the objection in the order dated 03.09.2009. 10. Mr. H. Kharmih, the learned counsel for the defendant respondent, has submitted that the learned trial Court has passed the impugned orders in correct appreciation of both fact and law involved in the proceeding and the said findings recorded by the trial Court should not be interfered with by exercising revisional jurisdiction. 10. Mr. H. Kharmih, the learned counsel for the defendant respondent, has submitted that the learned trial Court has passed the impugned orders in correct appreciation of both fact and law involved in the proceeding and the said findings recorded by the trial Court should not be interfered with by exercising revisional jurisdiction. He further submits that the trial Court has taken a lenient view in the matter towards condoning the delay and setting aside the order for ex-parte hearing and also taking into account the objection filed by the defendant respondent in the Review application. 11. After the aforesaid impugned orders, the learned trial Court passed the third impugned order dated 22.07.2008 quoted above by which the defendant respondent was allowed time to file written statement which was admittedly beyond expiry of the period stipulated in the provisions of the CPC for filing written statement (Order 8 Rule 1). 12. Mr. B. Bhattacharjee, learned counsel for the plaintiff petitioner has submitted that the trial Court ought not to have passed the aforesaid order dated 22.07.2008 allowing the defendant respondent to file written statement by giving another opportunity. According to him, the stipulation made in the aforesaid provision of CPC providing time limit for filing written statement cannot be lightly diluted. He submits that a written statement can be allowed to be filed beyond 90 days in very exceptional circumstances but the learned trial Court allowed the same to the defendant respondent without recording any reasons. 13. Mr. B. Bhattacharjee, learned counsel for the petitioner during the course of his arguments has placed reliance on the following decisions. (1) AIR 1964 SC 993 : Arjun Singh v. Mohindra Kumar and Ors. (2) AIR 1970 SC 997 : Nainsingh v. Koonwarjee and Ors. (3) (1997) 7 SCC 556 : P.K Ramachandra v. State of Kerala and Anr. (4) (2005) 2 SCC 256 : National Institute of Mental Health and Neuro Sciences v. C Parameshwara. (5) 2005 (Suppl.) GLT 525 : State of Tripura and Ors. v. Tripura Technical Employees's Association and Ors. (6) AIR 2007 SC 1574 : M/s Aditya Hostels (P) Ltd. v. Bombay Swadeshi Stores Ltd and Ors. 14. In Arjun Singh (supra), the Apex Court had the occasion to deal with the provisions of Order 9 Rule 7 and Order 9 Rule 13. v. Tripura Technical Employees's Association and Ors. (6) AIR 2007 SC 1574 : M/s Aditya Hostels (P) Ltd. v. Bombay Swadeshi Stores Ltd and Ors. 14. In Arjun Singh (supra), the Apex Court had the occasion to deal with the provisions of Order 9 Rule 7 and Order 9 Rule 13. Order 9 Rule 7 has fixed the procedure when the defendant appears on the day of adjourned hearing and assigns good cause for previous non appearance. As per this provision, where the Court has adjourned the hearing of the suit ex-parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard as if he had appeared on the date fixed for his appearance. On the other hand, Order 9 Rule 13 provides for setting aside a decree passed ex-parte against the defendant. 15. Mr. Bhattacharjee, learned counsel for the petitioner, has submitted that the very application filed by the defendant respondent under Order 9 Rule 13 to set aside the Order dated 31.03.2006 i.e. the order for ex-parte proceeding was misconceived inasmuch as, the said order was not a decree but was an order for ex-parte hearing against the defendant respondent. Accordingly, the defendant respondent ought to have filed an application under Order 9 Rule 7 and not Order 9 Rule 13. It is in the context that Mr. Bhattacharjee has placed reliance on the aforesaid decision in Arjun Singh (supra). In the said decision the Apex Court elaborated the distinction between provisions of Order 9 Rule 7 and Order 9 Rule 13. Dealing with the submission in case of any defect in application of the said provisions, invocation of inherent jurisdiction under Section 151 CPC can be taken recourse to, it was pointed out by the Apex Court that when there is specific provision under the CPC, without taking recourse to the said provisions application of Section 151 CPC will be totally misplaced. 16. In Nainsingh (supra), the Apex Court observed that under the inherent power of Courts recognized by Section 151 CPC, a Court has no power to do that which is prohibited by the Code. 16. In Nainsingh (supra), the Apex Court observed that under the inherent power of Courts recognized by Section 151 CPC, a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. 17. In the instant case, it was apparently wrong on the part of the defendant respondent to file the application under Order 9 Rule 13 inasmuch as, no ex parte decree was passed by the trial Court and the order passed was for ex parte hearing against the defendant respondent. Thus, the only application that could be filed by the defendant respondents was the application under Order 9 Rule 7. 18. In P.K. Ramachandra (supra), the Apex Court dealing with the question of condonation of 565 days delay in filing the first appeal and noticing the fact that the impugned order did not record any satisfaction that the explanation for the delay was either reasonable or satisfactory, which is the essential prerequisite to the condonation of delay observed thus: 6. Law of limitation may harshly affect a particular party it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs. 19. In C. Parmeshwara (supra), the Apex Court once again reiterated that the jurisdiction under Section 151 CPC cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. 20. In Tripura Technical Employees' Association (supra), the Division Bench of this Court while holding that even the delay of 70 days in preferring the appeal by the State was not sufficiently and satisfactorily explained observed that for condonation of delay sufficient cause must be shown. 20. In Tripura Technical Employees' Association (supra), the Division Bench of this Court while holding that even the delay of 70 days in preferring the appeal by the State was not sufficiently and satisfactorily explained observed that for condonation of delay sufficient cause must be shown. It was further held that the application must show that due to some event or circumstances it was not be possible to file appeal within time. 21. In the instant case, the delay condonation petition and the contents thereof along with the application made under Order 9 Rule 13 have been noted above. There is no explanation as to the cause of delay in filing the application for condonation of the delay. The only ground assigned was that there was lack of communication. For ready reference, the said ground in paragraph 11 of the condonation of delay is quoted below:- 11. That the said delay was due to the lack of communication between the previous lawyers of the Applicant/Defendant and as such the Applicant/Defendant was not aware of the status of the case. 22. The decision in M/s Aditya Hostels (P) Ltd. (supra) has been pressed into service by the learned counsel for the plaintiff petitioner to emphasize that the stipulated period of 90 days for filing written statement cannot be dealt with lightly and that the said stipulated period can be extended on showing exceptional circumstances and not with a mechanical approach. 23. In the instant case, after setting aside the order dated 31.03.2006, the trial Court allowed the defendant respondent to file written statement. While doing so, it totally ignored the feet that in the meantime the stipulated period of 90 days had already expired and that there was no exceptional circumstances for extending the said stipulated period. In fact no application was filed by the defendant respondent permitting him to file the written statement upon setting aside the said order dated 31.03.2006 by which ex parte hearing against the defendant respondent was ordered. 24. The order for ex parte hearing was passed on 31.03.2006. The said order was not by way of any decree passed in the suit. When there was no appearance on behalf of the defendant respondent and no steps were taken, the learned trial Court passed the said order for ex parte proceeding. 24. The order for ex parte hearing was passed on 31.03.2006. The said order was not by way of any decree passed in the suit. When there was no appearance on behalf of the defendant respondent and no steps were taken, the learned trial Court passed the said order for ex parte proceeding. Thus, admittedly no application under Order 9 Rule 13 could have been filed and at best the defendant respondent could have filed an application under Order 9 Rule 7. Although it was submitted during the course of hearing before the trial Court that mere mentioning of a wrong provision may not have any bearing in the order passed in the context in which the application was made, but in the facts and circumstances such an argument was misplaced. Both the provisions i.e. the one under Order 9 Rule 7 and the other under Order 9 Rule 13 are completely distinct and separate. This is precisely the reason as to why the Apex Court in the aforesaid decision in Arjun Singh (supra) qualitatively pointed out the distinctions between the said provisions and did not accept the submission that the application filed under one of the said provisions would not preclude the party to make another application under the other provision. 25. Apart from the above, there was considerable delay in filing the application for setting aside the order. The kind of explanation furnished in the application towards condonation of delay of 759 days has been noted above. On perusal of the entire application, the only ground that can be gathered is that there was some communication gap between the party and his engaged counsel. However no materials have been placed about the knowledge of the order for ex parte hearing and as to what steps had been taken thereafter and also as to what was the nature of the communication gap. In such circumstances, it cannot said to be a case of satisfactory explanation of the delay in filing of the application. 26. When the aforesaid position was pointed out by the plaintiff petitioner in his objection as well as in the Review application, it was incumbent on the part of the trial Court to take notice of the same and pass appropriate order after dealing with the contentions raised in the said objection of the Review application. 26. When the aforesaid position was pointed out by the plaintiff petitioner in his objection as well as in the Review application, it was incumbent on the part of the trial Court to take notice of the same and pass appropriate order after dealing with the contentions raised in the said objection of the Review application. Instead the trial Court passed impugned orders mechanically about which discussions have been made above. At the first instance, the trial Court passed the impugned Annexure-V order dated 22.07.2008 by setting aside the order dated 31.03.2006 on the ground that since the parties are both son of one (Late) T. Singhania, whose landed property was allotted by virtue of the Deed of Family Settlement. In the process the learned trial Court did not even deal with the objection filed by the plaintiff petitioner objecting the delay condonation as well as setting aside of the order dated 31.03.2006. The entire approach was mechanical. 27. Similarly, in the Review order also the learned trial Court after recording the contentions raised by the parties passed the above quoted order, and without, however dealing with the said contentions and passing any order on the points raised by the parties. 28. The learned trial Court simultaneously passed the third impugned order dated 22.07.2008 allowing the defendant respondent to file written statement. In the objection petition referred to above, the plaintiff petitioner inter alia had contended that all though the defendant respondent had initially appeared in the proceeding but later on he abandoned the same without filing written statement. After expiry of the statutory period for filing written statement and in absence of an application seeking permission to file written statement and explaining the delay, the learned trial Court could not have allowed the defendant respondent time to file written statement. There was no special circumstances in which the defendant respondent could have been allowed to file written statement more particularly when no special circumstances were shown by filing any application by the defendant respondent. 29. All the aforesaid adverse circumstances so staring on the face of it against the defendant respondent find support form the aforesaid decisions referred to by the learned counsel for me plaintiff petitioner. 30. 29. All the aforesaid adverse circumstances so staring on the face of it against the defendant respondent find support form the aforesaid decisions referred to by the learned counsel for me plaintiff petitioner. 30. For all the aforesaid reasons, I find sufficient force in the submission of the learned counsel for the petitioner and accordingly this Civil Revision petition is allowed by setting aside the impugned orders referred to above. The matter shall now proceed in accordance with law. 31. Civil Revision petition stands allowed. The Registry may transmit the case record to the learned trial Court forthwith. Petition allowed