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2012 DIGILAW 110 (ALL)

Ashok Kumar Verma v. Sanjai Kumar Trivedi

2012-01-11

DILIP GUPTA

body2012
Hon. Dilip Gupta, J.: - The tenant has filed this petition for setting aside the ex-parte decree dated 9th May, 2007 passed by the Judge, Court of Small Causes in SCC Suit No. 296 of 2006 filed by the landlord for eviction from the house in dispute. The petitioner has also sought the quashing of the judgment and order dated 24th September, 2011 by which the application filed by the petitioner under Section 5 of the Limitation Act with the Revision filed by him under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the 'Act') has been rejected and consequently the Revision has been dismissed. It transpires from the records of the writ petition that ex-parte decree dated 9th May, 2007 was passed by the Judge, Court of Small Causes against which a Revision was filed by the petitioner under Section 25 of the Act on 24th February, 2010. This Revision was accompanied by an application under Section 5 of the Limitation Act. It was inter alia stated that it was only on 2nd August, 2008 that the judgment debtor came to know about the ex-parte decree whereafter he filed objections in the Execution Case filed by the decree holder in 2008 which were rejected on 25th January, 2010 against which a Revision was filed on 17th February, 2010 which is pending. The petitioner had earlier contacted Sri Kamlapati Tripathi, Advocate, Kanpur Nagar, who informed him that a Revision could be filed against the ex-parte order with an application under Section 5 of the Limitation Act for explaining the delay. The explanation given in the application filed under Section 5 of the Limitation Act which accompanied the Revision is that though the certified copy of the judgment and decree was obtained by the defendant judgment debtor on 29th August, 2008, but the Advocate fell ill from 1st September, 2008 and when he recovered on 20th February, 2010 and started coming to the Court, the Revision was prepared and filed on 24th February, 2010. The Revisional Court has rejected the application filed under Section 5 of the Limitation Act and consequently the Revision has also been dismissed. The Revisional Court has rejected the application filed under Section 5 of the Limitation Act and consequently the Revision has also been dismissed. Learned counsel for the petitioner has submitted that neither any opportunity was given to the petitioner to contest the Suit and nor any opportunity was given by the Revisional Court to the learned counsel for the petitioner to make his submission before passing the order rejecting the application filed under Section 5 of the Limitation Act. It is his contention that on 15th September, 2011 when the application under Section 5 of the Limitation Act was to be heard, the counsel for the landlord-respondent was heard but the counsel for the applicant was not heard and thereafter an application was moved by him on 21st September, 2011 for permitting the counsel to make the submission but the Court did not hear the applicant's counsel and rejected the application by the order dated 24th September, 2011. Sri Sinha, learned counsel appearing for the respondent has, however, submitted that for good and cogent reasons the Revisional Court has rejected the application filed under Section 5 of the Limitation Act and the Court should not interfere with the impugned order under Article 226 of the Constitution. I have considered the submissions advanced by learned counsel for the parties. Even according to the petitioner, he came to know about the ex-parte decree dated 9th May, 2007 on 2nd August, 2008 but he was advised not to file an application for setting aside the ex-parte decree because then he would have to deposit the amount as provided for under Section 17 of the Act. He, however, filed objections in 2008 in the Execution Case preferred by the decree holder which objections were rejected on 25th January, 2010. According to the petitioner, though his counsel whom he had engaged to file the Revision had obtained the certified copy of the judgment and decree on 29th August, 2008, but he fell ill on 1st September, 2008 and recovered only on 20th February, 2010 whereafter the Revision was prepared and filed on 24th February, 2010 with an application under Section 5 of the Limitation Act. It is for this reason that the enormous delay in filing the Revision is sought to be explained. It is for this reason that the enormous delay in filing the Revision is sought to be explained. What needs to be noticed is that the objections in the Execution Case were filed by the judgment debtor through a counsel in 2008 itself, which objections were rejected on 25th January, 2010. It is after the rejection of the objections filed by the judgment debtor on 25th January, 2010 that the Revision was preferred on 24th February, 2010 with an application under Section 5 of the Limitation Act. The Revisional Court has not accepted the explanation offered by the Revisionist regarding the illness of his counsel because no document was filed with the application and nor any affidavit of the counsel was filed. The reason given by the Court below for not accepting the reason for explaining the enormous delay is a cogent reason and it does not call for any interference by the Court under Article 226 of the Constitution particularly when the judgment debtor had filed objections through a counsel in the Execution Case in 2008 itself when he came to know about the ex-parte decree on 2nd August, 2008. There is, therefore, no good reason as to why the Revision could not have been preferred through a counsel within the stipulated time. The contention of learned counsel for the petitioner that he was not heard on 15th September, 2011 by the Court cannot also be accepted. A perusal of the order-sheet dated 15th September, 2011 clearly shows that the Court had heard both the learned counsel for the parties on the application filed under Section 5 of the Limitation Act. It also needs to be noticed that subsequently the Revisionist had filed an application on 21st September, 2011 for being given an additional opportunity for making his submission and the Court below in the impugned order has observed that opportunity was granted to the counsel to make his submission before the date fixed for judgment i.e. 24th September, 2011, but instead of making his submissions, the Revisionist moved an application before the District Judge for transfer of the case to another Court. The petitioner failed to utilize the opportunity granted by the Court for making the submission on the application filed under Section 5 of the Limitation Act. The petitioner failed to utilize the opportunity granted by the Court for making the submission on the application filed under Section 5 of the Limitation Act. He, therefore, cannot contend that the Court did not give an opportunity to make further submissions as he was heard on 15th September, 2011. There is, therefore, no good reason to interfere with the impugned order. The ex-parte decree was assailed by the petitioner in the Revision which was dismissed as the application filed under Section 5 of the Limitation Act was rejected. The rejection of the application filed under Section 5 of the Limitation Act and the consequential order dismissing the Revision has been upheld. The ex-parte decree, therefore, cannot be examined in this petition. The writ petition is, accordingly, dismissed.