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2014 DIGILAW 3202 (ALL)

Lachhi Ram v. Sant Ram Mawai

2014-10-27

ATTAU RAHMAN MASOODI

body2014
JUDGMENT : Attau Rahman Masoodi, J. Heard learned counsel for the petitioner and Shri Anshul Kumar Singhal learned counsel appearing for respondent no.1. 2. A suit for specif performance filed by the petitioner was registered as Civil Suit No.259 of 2004. The respondents/defendants herein participated in the suit proceedings by filing written statements. Respondent no.1 filed separate written statement whereas respondents 2 to 6 filed a common written statement. As many as four issues were framed by the trial Court. 3. From the perusal of record, it appears that the absence of respondents in the suit proceedings was noticed and recorded with effect form 31.8.2010. On account of constant absence of defendants the suit proceedings were ordered to proceed ex-parte against them by order dated 28.3.2011. An ex-parte decree was passed on 20.5.2011 against all the respondents. An application under Order 9, Rule 13 CPC along with an application under Section 5 of the Limitation Act was filed by respondent no.1 alone praying for condonation of delay coupled with a prayer for setting aside ex-parte decree. In paragraph 4 of the application for condonation of delay, the premise set out for delay condonation is to the effect that respondent no.1 (Sant Ram Mawai) all of a sudden developed some pain in his back bone and resultantly had to undergo medical treatment for nearly six months as per medical advice. It is further pointed out that the said respondent could not perform pairvi of the suit proceedings however nothing is mentioned about other defendants i.e. respondents 2 to 6. The other defendants in the suit i.e. respondents 2 to 6 have not filed any such application for setting aside ex-parte decree. 4. The application filed by respondent no.1 (Sant Ram Mawai) was contested by the petitioner before the trial Court by filing objections. The petitioner in the objections filed before the trial Court has specifically stated that the respondent no.1 (Sant Ram Mawai) was not appearing before the trial Court since the month of August 2010 and in absence of any justification on the part of respondent not to appear, the suit proceeded ex-parte. Notwithstanding the objection filed by the petitioner, the trial Court allowed the application for condonation of delay on payment of a cost of L 500/- and the suit proceedings were restored in its entirety. Notwithstanding the objection filed by the petitioner, the trial Court allowed the application for condonation of delay on payment of a cost of L 500/- and the suit proceedings were restored in its entirety. The petitioner feeling aggrieved against the order passed by the trial Court on 22.7.2014, filed a revision before the revisional Court under Section 115 of the Code of Civil Procedure. The revisional Court having regard to the reasons recorded by the trial Court found that the trial Court had exercised the discretion which did not call for any interference, hence, the order passed by the trial Court was upheld. The revisional Court while justifying the order passed by the trial Court has also made a mention about the medical certificate sought to be placed reliance upon by the respondent no.1 (Sant Ram Mawai). 5. The petitioner feeling aggrieved against the orders passed by the trial Court as well as by the revisional Court has filed this writ petition bringing on record some relevant material. Two relevant considerations which go to the root of discretionary exercise of power by the trial Court as against allowing the delay condonation application filed along with the application under Order 9, Rule 13 CPC i.e. the medical certificate relied upon by the respondent no.1 (Sant Ram Mawai) which is said to be a forged document; and secondly regular appearances of Sant Ram Mawai in criminal proceedings which were simultaneously going on during the disputed point of time, were not filed before the trial Court. The medical certificate said to be forged was noticed by the revisional Court but was not filed before the trial Court, therefore, objections to the delay condonation application could not be filed by the petitioner in the trial Court on the basis of above material. 6. As far as the appearance of respondent no.1 (Sant Ram Mawai) in the criminal proceedings during the disputed point of time is concerned, the counsel appearing for respondent no.1 (Sant Ram Mawai) is unable to explain the position and does not deny his client's appearance in the criminal proceedings. 7. Placing reliance upon a forged medical certificate and making a false statement of fact as to ailment of respondent no.1 clearly indicates that respondent no.1 has abused the process of law. The other respondents have not challenged the ex-parte decree. 8. 7. Placing reliance upon a forged medical certificate and making a false statement of fact as to ailment of respondent no.1 clearly indicates that respondent no.1 has abused the process of law. The other respondents have not challenged the ex-parte decree. 8. In any case, a very relevant material has escaped the attention of the trial Court as well as the revisional Court so far as the question of delay condonation is concerned. Fault can also not be attributed to the petitioner due to the reason that these evidences came to light after the impugned orders had come to be passed. 9. It is true that a liberal approach is to be adopted while considering an application for condonation of delay but in the instant case, the conduct of respondent is unlike an innocent litigant. Therefore, it is incumbent upon the trial Court to have a re-look at the material defence of the petitioner which is based on the documentary evidence. 10. In the result, the impugned orders passed by the revisional Court as well as by the trial Court are hereby set aside. It is open to the petitioner to file the objections before the trial Court within three weeks and place reliance upon the necessary material as has been filed along with this petition. On filing the objections by the petitioner, the application under Section 5 of the Limitation Act filed by respondent no.1 as well as application under Order 9, Rule 13 CPC shall be considered afresh in accordance with law. 11. The trial Court shall proceed to consider the matter afresh and pass appropriate orders in accordance with law. 12. Writ petition is allowed accordingly. Petition allowed.