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2012 DIGILAW 1687 (PAT)

Suresh Mahaldar v. Mahadeo Mahaldar

2012-12-14

JYOTI SARAN

body2012
ORAL ORDER Heard Mr. Ashok Kumar, learned counsel appearing on behalf of the petitioner and Dr. Manoj Kumar, learned counsel appearing for the opposite party. 2. This Civil Revision application is directed against the order dated 08.05.2007 passed in Title Appeal No. 66 of 2006, whereby the learned District Judge, Bhagalpur has been pleased to dismiss the appeal of the petitioner holding the same as barred by limitation. 3. The suit in question was filed by the plaintiff-opposite party for specific performance of contract. The suit was decided ex parte. Although the defendant-petitioner appeared in the suit and also filed a written statement but he thereafter did not pursue the same and the suit was decreed ex parte in favour of the plaintiff-opposite party with a direction to the defendant-petitioner to execute a sale deed and on his failure to do so the same was to be executed through the process of the Court. It is when the decree was levied for execution that summons was served upon the defendant-petitioner and he became aware of the judgment and decree after inspection of records and upon obtaining the certified copy of the judgment and decree the appeal was filed together with an application under Section 5 of the Limitation Act, 1963 for condonation of delay. The learned court below by the order impugned has rejected the petition filed for condonation of delay, inter alia, on grounds of no sufficient explanation having been provided by the petitioner for the delay and as a consequence of the dismissal of the application filed for condonation of delay, the appeal itself was dismissed as time barred. 4. Mr. Ashok Kumar, learned counsel appearing on behalf of the petitioner has submitted that the petitioner had been misled by the pairvikar who informed him that the suit stood dismissed. It is the case of the petitioner that upon such information being received, the petitioner who is a labourer left the pairvi of the matter and it is only after he received the summons in the Execution Case No. 12 of 2004 levied by the decree holder-opposite party for execution of the judgment and decree passed in Title Suit that he became aware of the outcome of the suit. It is stated that after gathering the knowledge of the same on 02.06.2006 he applied for certified copy of the judgment and decree on 04.04.2006 and whereafter the appeal after being drafted, was filed together with an application under Section 5 of the Limitation Act with a prayer to condone the delay and to dispose of the appeal on merits. The prayer of the petitioner not finding favour with the lower appellate court, hence the Civil Revision application. 5. Mr. Kumar relying upon a Supreme Court judgment reported in 2010(12) SCC 159 (Bhagmal & Ors. vs. Kunwar Lal & Ors.) has stated that in similar circumstances where a party had been misled and suit was decided ex parte, the aggrieved filed an application under Order 9 Rule 13 but the same was rejected by the trial court and affirmed by the High Court. The orders were then questioned before the Supreme Court. The Supreme Court taking note of the circumstances, the stipulations underlying under Article 123 of the Limitation Act and the explanation given for the delay, was of the opinion that the application of the petitioner of the said case had been rejected on hyper technicality. It is submitted that the said judgment of the Supreme Court applies with all force in the case of the petitioner. 6. The argument has been contested by Dr. Kumar appearing for the decree holder. It is stated that the explanation assigned in the limitation petition is an afterthought of the petitioner, who had abandoned the suit after filing written statement and was now trying to provide answer to explain the delay. Dr. Kumar while relying upon a judgment of the Supreme Court reported in (1997) 7 SCC 556 (P.K. Ramachandran vs. State of Kerala and another) submits that a prayer of condonation in absence of reasonable or satisfactory explanation should not be allowed. It is submitted that the order of he lower appellate court suffers from no material irregularity so as to warrant interference. 7. heard learned counsel for the parties and have perused the materials on record. The only issue which requires consideration in the present case is whether the explanation given by the petitioner in his application filed for condonation of delay reflects a bona fide explanation. It is an admitted position that the petitioner had filed his appearance and even submitted a written statement. The only issue which requires consideration in the present case is whether the explanation given by the petitioner in his application filed for condonation of delay reflects a bona fide explanation. It is an admitted position that the petitioner had filed his appearance and even submitted a written statement. The said aspect itself is sufficient indication that the petitioner was vigilant in the matter and had not abandoned or neglected the suit. It is the specific case of the petitioner that upon being informed by his pairvikar that the suit stood dismissed, he left pursuing the matter. It is further the case of the petitioner that no sooner he gathered information about the Execution Case No. 12 of 2004 upon receipt of a copy of the summons that he got the records inspected and became aware of the judgment and decree whereafter a requisition was filed for a certified copy of the same on 04.04.2006 which was received on 20.04.2006 and immediately whereafter the Title Appeal No. 66 of 2006 was filed. The trial court has dismissed the explanation given by the petitioner as being insufficient and unreasonable. The Supreme Court in a case reported in (1998) 7 SCC 123 (N. BalaKrishnan vs. M. Krishnamurthy) has laid down guidelines for consideration of an application filed for condonation of delay and I am tempted to refer to paragraph 13 of the said judgment which runs as follows: “13. 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 mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.” 8. The view of the Supreme Court is that delay alone should not shut the doors for a litigant unless it is a means of dilatory strategy or is an evidence of mala fide. Admittedly none of the two factors are manifest so far as the case of the petitioner is concerned. As already held the petitioner had filed his written statement. It is thus not the case where the petitioner has evaded the litigation rather he had filed his appearance and also filed his written statement. In the circumstances, the explanation given by the petitioner is a possible explanation for the delay caused in preferring the appeal and should not have been rejected outrightly. A somewhat similar situation was also in consideration in the case of Bhagmal (supra). 9. For the reason aforesaid, the order impugned in this Civil Revision application cannot be upheld and is accordingly set aside. 10. Let the appeal together with the application for condonation of delay be considered afresh in the light of the observations made hereinabove and be disposed of in accordance with law after hearing the contesting parties. This Civil Revision application is allowed.