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Madhya Pradesh High Court · body

2013 DIGILAW 284 (MP)

Riyaj Khan v. Kasam Khan

2013-03-01

U.C.Maheshwari

body2013
ORDER (Oral) Per U. C. Maheshwari J: 1. The applicants-defendant nos. 1 to 3 have filed this revision under Section 115 of the CPC being aggrieved by the order dated 17.1.2012 passed by the Ist Additional District Judge, Vidisha in Miscellaneous Civil Appeal No. 06/2011, whereby allowing the appeal of the respondent nos. 1 and 2 the order dated 2.3.2010 passed by Civil Judge, Class-I, Kurwai, district Vidisha in MJC No. 15/2008 dismissing the application of respondents filed under Section 5 of the Limitation Act and under Order 9, Rule 9 of the CPC for restoration of the Civil Suit No. 19-A/2003 (old number 132-A/1997) has been set aside and such suit is directed to be restored. 2. The facts giving rise to this revision in short are that the respondent nos. 1 and 2 herein filed above mentioned civil original suit against the applicants in the court of Civil Judge, Class-I, Kurwai, district Vidisha. In pendency of the suit, vide dated 7.9.1998, the trial court has closed the right of the applicants to file the written statement, on which the applicants have come to this court with C.R. No. 876/1999. In such revision some interim stay against further proceedings of civil original suit was given on 15.9.1999 and subsequently vide dated 18.9.2002 such revision was disposed of with a direction to the trial court to consider the written statement filed on behalf of the applicants. A copy of such order was placed by the applicants before the trial court on 1.9.2005. Subsequent to that on 7.9.2005, the applicants were present before the trial court in the civil original suit but no one appeared on behalf of respondent nos. 1 and 2. Consequently the suit was dismissed in default of appearance of respondent nos. 1 and 2. Subsequent to that the impugned proceeding under Order 9, Rule 9 of the CPC alongwith an application under Section 5 of the Limitation Act was filed on behalf of the respondent nos. 1 and 2 on 10.8.2007 and the prayer for condoning the delay in filing such proceeding was made in the aforesaid application of Section 5 of the Limitation Act and subject to outcome of such application, the prayer for restoration of the aforesaid civil original suit was made by application of Order 9, Rule 9 of the CPC. 3. 1 and 2 on 10.8.2007 and the prayer for condoning the delay in filing such proceeding was made in the aforesaid application of Section 5 of the Limitation Act and subject to outcome of such application, the prayer for restoration of the aforesaid civil original suit was made by application of Order 9, Rule 9 of the CPC. 3. After filing the reply of aforesaid application on behalf of the applicants and extending the opportunity of hearing to both the parties, on consideration, vide order dated 2.3.2010, the aforesaid application under Section 5 of the Limitation Act was dismissed by holding that sufficient cause for condoning the delay has not been made out. Pursuant to it, the proceeding of Order 9, Rule 9 of the CPC was also dismissed without examining the same on merits. 4. Being dissatisfied with the aforesaid order of the trial court dated 2.3.2010, the respondent nos. 1 and 2 herein filed the aforesaid miscellaneous appeal before the subordinate appellate court. On consideration by allowing such appeal, the entire delay in filing the proceeding for restoration of the civil original suit under Order 9, Rule 9 of the CPC was condoned and also by holding that sufficient cause for restoration of the civil suit by allowing the application, the same was restored under Order 9 Rule 9 of the CPC and the case was remitted back to the trial court to decide the same on merits. 5. Shri D.D. Bansal, learned appearing counsel for the applicants after taking me through the record of the courts below alongwith the impugned orders, said that the party who is very negligent in taking the steps in the matter, specially after dismissal of the suit in filing the application for restoration of the same within the prescribed limitation is not entitled to adopt the lenient view for extending any relief in their favour. In continuation by referring some papers from the record of the trial court, he said that whatsoever explanation has been put fourth on behalf of respondent nos. 1 and 2 in the application under Section 5 of the Limitation Act as well as application under Order 9, Rule 9 of the CPC could not be said or termed to be sufficient cause either for condoning the delay in filing the proceeding or for restoration of the aforesaid civil original suit. 1 and 2 in the application under Section 5 of the Limitation Act as well as application under Order 9, Rule 9 of the CPC could not be said or termed to be sufficient cause either for condoning the delay in filing the proceeding or for restoration of the aforesaid civil original suit. So in such premises, after taking into consideration the entire available factual matrix, the trial court has correctly dismissed the application of the respondent nos. 1 and 2 filed under Section 5 of the Limitation Act and pursuant to it, application filed under Order 9, Rule 9 of the CPC and on appeal there was no case before the appellate court to interfere or set aside such findings of the trial court and even otherwise without any sufficient cause or reason the appellate court should not have passed the impugned order for restoration of such civil original suit and said that looking to such conduct of respondent nos. 1 and 2, the order of the appellate court deserves to be set aside by restoring the order of the trial court and prayed to allow the appeal accordingly. 6. On the other hand responding the aforesaid arguments of the applicants' counsel Shri Ankur Maheshwari, learned appearing counsel for the respondent nos. 1 and 2 by justifying the order of the appellate court directing to restore the civil original suit argued that the same being based on proper appreciation of the evidence and is in conformity with law. It does not require any interference at this stage. He also argued that as per settled proposition of law while dealing with the application under Section 5 of the Limitation Act or the proceeding under Order 9, Rule 9 of CPC, the court should adopt the lenient view with justice oriented approach and besides all other things court is also bound to consider the stake of the litigation involved in the matter. So in such premises, also the impugned order of the appellate court does not require any interference and prayed for dismissal of this appeal. 7. Having heard the counsel, keeping in view their arguments, I have carefully gone through the records of the courts below alongwith the impugned orders of the trial court as well as appellate court. 8. It is undisputed situation on record that on behalf of respondent nos. 7. Having heard the counsel, keeping in view their arguments, I have carefully gone through the records of the courts below alongwith the impugned orders of the trial court as well as appellate court. 8. It is undisputed situation on record that on behalf of respondent nos. 1 and 2 the impugned suit was filed for declaration of title and perpetual injunction and initially in such suit on non filing the written statements on behalf of the applicants within the prescribed limitation right of the applicants to file the written statements was closed but till then the written statement was already placed on record. Against such order of the trial court, the applicants herein came to this court with the above mentioned civil revision. While disposing of such revision on 18.9.2002, this court by making some observation directed the trial court to consider the aforesaid WS of the applicants placed on the record and a copy of such order was filed by the applicants before the trial court on 1.9.2005 and thereafter on first date, i.e. on 7.9.2005, the case was fixed before the trial court and on that date no one was present on behalf of respondent nos. 1 and 2, although I have not found the particulars from record that for what purpose the case was fixed on 7.9.2005 but however, on such date in the absence of the respondent nos. 1 and 2, the suit was dismissed. 9. I am of the view that suit could not have been dismissed on such date by the trial court unless same was fixed for recording the evidence or any effective hearing. Even otherwise in any case, if one one day if the counsel of the party did not appear then as per settled proposition instead to dismiss the suit or to proceed exparte, it was the duty of the Court to inform the party, through summon by fixing the case on some future date and on such date, if the party did not appear, then the court may pass order either for dismissal of the suit or to proceed exparte. Such procedure or process was not adopted by the trial court. Such procedure or process was not adopted by the trial court. So firstly on that account only the impugned application of Section 5 of the Limitation Act as well as proceeding under Order 9, Rule 9 of the CPC ought to have been allowed by the trial court itself but the same was dismissed under the wrong premises. Then in that circumstance, the appellate court has not committed any error in setting aside the order of the trial court and in allowing the application by the appellate court under Section 5 of the Limitation Act as well as application under Order 9, Rule 9 of the CPC by the impugned order. 10. Apart the above, in view of the settled proposition of law that while dealing with the application under Section 5 of the Limitation Act for condoning the delay in any proceeding, besides considering all other things, the court is also bound to consider the stake of litigation also as laid down by the Apex Court in the matter of M.K. Prasad Vs. P. Arumugam reported in (2001) 6 SCC 176 , in which it was held as under:- “10. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte 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 on 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 ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the 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. We are of the opinion that the inconvenience caused to the 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 interests 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 ex-parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well”. 11. In view of the aforesaid for the sake of arguments, if it is deemed that there was mistake on the part of respondent nos. 1 and 2 herein in filing the proceeding for restoration of the civil suit as, the same was filed at belated stage or till some extent, they have failed to prove the sufficient cause for condoning the delay under Section 5 of the Limitation Act even keeping in view the stake of litigation in which dispute of the title of the immovable property was involved, the trial court was bound to consider and allow such application of Section 5 of the Limitation Act as well as application of Order 9, Rule 9 of the CPC but the same was dismissed under wrong premises. In the light of aforesaid legal position, the appellate court has not committed any error in rejecting the order of the trial court and allowing the applications of the respondent nos. 1 and 2. 12. In view of the aforesaid, I have not found any perversity, infirmity, illegality or anything against the propriety of law in the order impugned of the appellate court, hence the same is hereby affirmed. Consequently this revision being devoid of any merits is here dismissed. There shall be no order as to the costs. 13. The parties present through their counsel are directed to appear before the trial court, to assist the court in holding the trial of the aforesaid civil original suit, firstly on dated 26.3.2013 so also on such other dates as may be fixed by such court in this regard till disposal of the suit. 14. The revision is allowed.