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2015 DIGILAW 693 (KAR)

Poornima R. Shenoy v. Vinaya Pal

2015-07-01

A.V.CHANDRASHEKARA

body2015
ORDER : A.V. Chandrahekara, J. Heard the learned counsel for the petitioners and the learned counsel for the respondent Nos. 1 to 4. Matter is taken up for final hearing with their consent. 2. Present petition has been filed under Articles 226 and 227 of the Constitution of India challenging the order dated 01.08.2013 passed by the learned II Addl. District Judge, D. K., Mangalore in MA No.31/2011 filed under Order-43 Rule-1 of Code of Civil Procedure challenging the order passed in Miscellaneous Case No. 2/2007 passed on 30/07/2011 by the learned Senior Civil Judge and ACJM, Karkala filed under Order-9, Rule-13 of Code of Civil Procedure, confirming the same. Hence, the petitioners are before this; Court. 3. The facts leading to file the present petition under Articles 226 and 227 of the Constitution of India are as follows: Respondents have filed a final decree petition under Order-20, Rule-18 read with Section 54 of CPC before the Court of then Prl. Civil Judge (Sr.Dn.) and Mangalore. FDP proceedings were initiated in FDP No. 5/2005 before the Civil Judge (Sr.Dn.) Karkala of Udupi District. The schedule property in question is situated within the jurisdiction of Moodabidri of Mangalore revenue taluk. After the receipt of the notice issued by FDP Court, the petitioners herein came to know that a preliminary decree had been passed against them in OS No. 127/1999 which was pending on the file of Court of Prl. Senior Civil Judge, Mangalore. Soon after the same, they applied for the certified copies of the judgment and decree and other connected documents of OS No. 127/1999. 4. All these petitioners had engaged an Advocate by name Sri K. Krishna Moorthy to represent them in the original suit. No written statement had been filed on their behalf. In order to file written statement, Mr. K. Krisha Moorthy, learned Advocate representing them had written a letter to defendant No.3 only, namely Venugopal to come and give instructions, so as to prepare the written statement. The said letter is dated 02.04.2003. In spite of said letter, defendant No.3 did not approach him and as such, he made a submission before the Court that he had no instructions from his clients, i.e. defendants. As such, the Court treated that the defendants had no written statement to be filed. Sri K. Krishna Moorthy was permitted to retire without issuing notices to the defendants therein. As such, the Court treated that the defendants had no written statement to be filed. Sri K. Krishna Moorthy was permitted to retire without issuing notices to the defendants therein. Accordingly an ex parte judgment and decree was passed granting ½ share to the plaintiffs therein. 5. Soon after the receipt of these records and other connected papers, the petitioners chose to file a petition under Order-9, Rule-13 requesting the Court to set aside the judgment and decree passed therein. There was delay of 916 days in filing the said petition. After holding an enquiry in regard to condonation of delay, the learned Judge has come to the conclusion that it is barred by time. Accordingly, petition is dismissed, as barred by time. Being aggrieved by the order of the Prl. Senior Civil Judge, Mangalore, an appeal came to be filed under Order 43, Rule-Id of CPC before the District Court, Mangalore and the II Addl. District Judge. D. K., Mangalore chosen to dismiss the application on 01.08.2013 filed in MA No. 31/ 2011. 6. What is argued before this Court by the learned counsel for the respondents herein is that there was an inordinate delay in filing the very petition under Order-9, Rule-13 of CPC. It is further argued that even after receipt of notice from the FDP Court there was sufficient delay in filing the petition and therefore the trial Court has rightly rejected the petition. 7. Per contra Sri. K. Chandranath Ariga, learned counsel for the petitioners has vehemently argued that the delay of 916 days in filing the case of this nature will have to be liberally construed pedantic approach should be adopted by the Court. He has relied upon the decision of Apex Court reported in AIR 1987 SC 1353 in the case of Collector, Land Acquisition, Anantnag v. Katiji and another judgment, reported in AIR 2002 SC 1201 in the case of Rama Nath Sao alias Ram Nath Sahu v. Gobardhan Sai and Ors. 8. The Apex Court in the case of Collector, Land Acquisition, Anantnag v. Katiji ( AIR 1987 SC 1353 ), has held as follows: "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deli berate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 9. As could be seen from the records Sri K. Krishna Moorthy, learned counsel for the defendants in the original suit did not issue notices to all defendants to come and give instructions to prepare the written statement. He had written a letter to defendant No.3 only and since defendant No.3 did not come and give instructions, written statement could not be filed. The Court granted permission to Mr. K. Krishna Moorthy, learned counsel to retire from the case. Soon after granting permission to retire, the Court should have issued Court notices to the defendants therein. He has relied on ruling, 1967 (1) Mys Law J. 236 : (AIR 1968 Mys 188) in the case of Krishna Venkatesh Pai v. Devappa Ayyu Naik & others, wherein it is specifically held as follows: "Where a counsel has been engaged for an appeal and if, for any reason he wants to report no instructions, it is his duty to notify the appellant first and then seek leave of the court to retire from the case. It is then the duty of the court to protect the interest of the appellant by issuing notice to him or direct counsel to file proof of having issued notice of his intention not to proceed with the appeal. The court cannot dismiss the appeal merely on the counsel reporting no instructions." 10. The learned Judge, who has dealt with the petition filed under Order-9 Rule-13 of CPC, has held in its order at Para No. 15 Page No. 11 as follows: "In proof of his contention 3rd petitioner in the evidence has deposed that in O.S. No.127/1999 on the file of the then Principal Civil Judge (Sr.Dn.) & C.J.M., Mangalore their counsel before retirement did not inform to them. Therefore only after receipt of notice in final decree proceedings F.D.P.No. 11/2005 after verifying records in O.S.No. 127/1999 and after obtaining certified copy of judgment and decree week ago they came to know about the decree that without issuing notice their counsel was retired and before retirement their counsel issued notice to one Venugopal 3rd defendant not to petitioners. For which petitioner's counsel has relied ruling 1967 (1) Mys Law 236 : (AIR 1968 Mys 188) in the case of Krishna Venkatesh Pai v. Devappa Ayyu Naik & others." 11. No doubt, records in OS No.127/1999 disclose that, no notices were issued to the petitioners by the Court after the counsel filing his retirement memo. 12. What is held by the Apex Court in the case of Collector, Land Acquisition, Anantnag v. Katiji is that meritorious case would not be thrown out of the board on the exertion of limitation. Similar observation is made by the Apex Court in the case of AIR 2002 SC 1201 in the case of Rama Nath Sao alias Ram Nath Sahu v. Gobardhan Sai and Ors. regarding the construction of the words "sufficient cause" as found in Section 5 of the Limitation Act. It is held by the Hon'ble Apex Court in the decision reported in AIR 1964 SC 250 that in considering sufficiency of cause to set aside the ex parte decree Court should not be extremely strict. It is held that there is no difference between the words "good cause" under Order-9, Rule-9, of CPC and "sufficient cause" under Order-9 Rule-13 of CPC; both constitute reasonableness of the excuses given. 13. It is held that there is no difference between the words "good cause" under Order-9, Rule-9, of CPC and "sufficient cause" under Order-9 Rule-13 of CPC; both constitute reasonableness of the excuses given. 13. This Court in the case reported in ILR 1973 Mysore 167 has held that the ex parte decree passed by the Court below which has emerged into that the Appellate Court does not come in the way of the right of the defendants to get the ex parte decree set aside. In the facts and circumstances of the case both the Courts were accepted to adopt liberal approach towards the petitioners. The delay could have condoned by imposing reasonable costs. Dismissing the petition on the ground of limitation will not do the substantial justice between the parties. 14. In this view of the matter, both the Courts below have approached wrong approach and hence, the same needs to be corrected by this Court as per the supervisory power vested under Article 227 of the Constitution of India. 15. Accordingly, petition order is allowed. The ex parte order and judgment and decree passed by the Courts below are set aside and the original suit bearing OS No.127/1999 stands restored to its original position. The petitioners shall pay a costs of Rs. 2,500/- to the plaintiffs on the next date of hearing, without fail. Parties shall appear before the trial Court without awaiting further notice on 06.08.2015 and the learned Judge shall make all efforts to dispose of the suit preferably within six months from 06.08.2015. Parties shall co-operate with the Court in expeditious disposal of the case.