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2016 DIGILAW 1377 (BOM)

Ishwar Tulsiram Wanjari v. Kawdu Santosh Kabhe

2016-08-03

R.K.DESHPANDE

body2016
JUDGMENT : 1. Admit. Heard finally by consent of the learned counsels appearing for the parties. 2. The lower appellate Court on 07.11.2015 has condoned the delay of 959 days (in the application, mentioned as 1000 days) caused in filing Misc. Civil Appeal No. 260 of 2015, challenging the decree passed by the trial Court granting declaration of title and possession of the suit property in favour of the plaintiff. This is the subject matter of challenge in this revision application. 3. The case of the respondent defendant before the lower appellate Court in the application for condonation of delay was that the respondent was not served in the matter and the decree passed by the trial Court was ex-parte. The lower appellate Court has recorded the finding in paragraph No. 9 of the impugned order, which is reproduced below. "9. On perusal of the copies of Rojnama Exh.31, it appears that NAs filed application on 2.7.2009 before learned lower Court in Spl. Civil Suit No. 1308/2008 vide Exh.6 for grant of permission to issue notice through RPAD and same was issued to the applicant returnable on 4.8.2009. On 4.8.2009, the acknowledgment of the notice filed on record vide Exh.7. It appears that on 4.8.2009, 29.8.2009, 29.9.2009, 16.10.2009 and 19.11.2009, no appearance is filed on behalf of the applicant/defendant. It appears that on 10.12.2009, the defendant in person allegedly filed the pursis Exh.8 and admitted the claim of NAs/plaintiffs, and thereafter, the defendant is shown remained absent and the learned lower Court passed the order to proceed without written statement on 27.4.2011." 4. After referring to the provisions of Order VI, Rule 14A of C.P.C. the lower appellate Court holds in paragraph No. 12 of the impugned order, as under. "12. On perusal of the above provisions in Civil Procedure Code, it appears that pleading when filed by a party, shall be accompanied by a statement in the prescribed form, signed as provided in rule 14, regarding the address of the party, and in the present case, no registered address is appearing on record. On perusal of rojnama, it appears that no registered address was filed by the applicant. There also appearing no signature of the counsel or anybody show that he knows the signatory of Exh.8 i.e. applicant. Therefore, decree passed by the learned lower Court suffers from legal infirmity. On perusal of rojnama, it appears that no registered address was filed by the applicant. There also appearing no signature of the counsel or anybody show that he knows the signatory of Exh.8 i.e. applicant. Therefore, decree passed by the learned lower Court suffers from legal infirmity. The learned lower Court failed to follow the prescribed procedure of law. The dispute in between the parties is in respect of immovable property. Therefore, the delay caused in preferring the appeal needs to be condoned." 5. The learned counsel appearing for the original plaintiff/applicant has invited my attention to paragraph No. 6 of the judgment delivered by the trial Court, wherein it is stated that the defendant received suit summons and by remaining personally present, filed a pursis at Exh.8, mentioning that, "as claimed by the plaintiff he is ready to give share in possession whatever they get. Agricultural land has been given on lease. He can give possession after "Gudipadwa". He again did not turn up to the Court." 6. The learned counsel invited my attention to the following decision of the Apex Court to urge that happenings in the Court during hearing as recorded in the judgment are conclusive and cannot be disputed in appeal and the only way to correct any mistake in recording is to call attention of very Judge who made the record. 1. Central Bank of India vs. Vrajlal Kapurchand Gandhi and Anr. AIR 2003 SC 3028 2. Bhagwati Prasad vs. Delhi State Mineral Development Corporation, AIR 1990 SC 371 3. Paul Niklav Rodrigues thr L.Rs and Anr. vs. Anthony Domnic D'Souza, AIR 2005 Bombay 114 4. Uttam Singh Dugal and Co. Ltd vs. Union Bank of India and Ors. AIR 2000 SC 2740 5. Taste Hotels Pvt. Ltd vs. Medisetty Jayasri and Anr. AIR 2012 AP 4 6. Dr. K. Padmanabhan and Anr. vs. W.S. Nisha, 2002 (2) CCC 234 (Mad.) He submits that the only remedy available for the respondent defendant was to file an application under Order IX, Rule 13 of C.P.C for setting aside ex-parte decree or a decree passed shown under Order XII, Rule 6 of C.P.C. 7. It is further urged that if the application for condonation of delay contains false statement, then the application has to be rejected irrespective of the number of days delay caused in filing an application. It is further urged that if the application for condonation of delay contains false statement, then the application has to be rejected irrespective of the number of days delay caused in filing an application. The learned counsel relies upon the following decisions in support of his proposition. 1. Basawaraj and Anr. vs. Special Land Acquisitioni Officer, 2013 (14) SCC 81 2. Lanka Venkateswarlu (dead) by L.Rs vs. State of A.P. and Ors. 2011 (4) Mh.L.J. 104 3. D. Gopinathan Pillai vs. State of Kerala and Anr. 2007 (3) Mh.L.J.54 4. Chandrakant Shrimantrao Patil vs. Vikas Balaji Parsewar, 2011 (2) Mh.L.J. 94 5. Rajendra Namdeorao Akre vs. Rajkumar Bhalerao Balbudhe and Anr. 2016 (1) Mh.L.J. 184 6. Nandkishor Damodhar Wadgaonkar and Anr. vs. Gajanan Uttamrao Pede, 2014 (1) Mh.L.J. 343 7. Pundlik Jalam Patil by L.Rs vs. Exe. Engr. Jalgaon Medium Project and Anr. 2008 (6) All ME 954 8. Before the lower appellate Court, the parties were permitted to lead evidence and the record and proceedings were called. The position undisputed even before this Court is that though the Rojnana of the trial Court indicate the appearance of the counsel for and on behalf of the defendant, neither the name of the counsel appears in the Rojnama, nor there is Vakalatnama filed for respondent defendant by any of the lawyer. It is also not disputed that there is no evidence on record to show that the pursis at Exh. 8 said to have been filed by the defendant accepting the claim of the plaintiff on the basis of which a decree is passed under Order XII, Rule 6 of C.P.C., has in fact been signed by the defendant. There is nothing available on record to show that the identity of the defendant was established before the trial Court, while filing the pursis at Exh.8 on record. 9. The lower appellate Court has held that the registered address of the defendant was also not placed on record and there is hardly anything to hold that the defendant was served with the suit summons and the acknowledgement placed on record bears his signature. In such a situation, there is no reason to doubt the version of the respondent/ defendant that for the first time, he came to know of the ex-parte decree passed by the trial Court on 25.02.2014 when the decree was put to execution. In such a situation, there is no reason to doubt the version of the respondent/ defendant that for the first time, he came to know of the ex-parte decree passed by the trial Court on 25.02.2014 when the decree was put to execution. It cannot be said that the remedy of filing regular civil appeal was not available to the respondent-defendant to challenge the ex-parte decree and that the delay was sought to be condoned on the false ground. 10. In view of above, there is no jurisdictional error committed by the lower appellate Court in condoning the delay. The civil revision application is dismissed. 11. At this stage, the learned counsel for the respondent defendant submits that in view of the findings recorded by this Court as well as the lower appellate Court, the ex-parte decree passed by the trial Court in the appeal preferred before the lower appellate Court may be set aside by consent order and the matter be remitted back to the trial Court for decision afresh in accordance with law. 12. The learned counsel for the applicant plaintiff has no objection for adopting such course. 13. In view of above, the judgment and decree passed by the trial Court on 11.07.2011 in Special Civil Suit No. 1308 of 2008 is hereby quashed and set aside and the matter stands remitted back to the trial Court to decide the said suit afresh. 14. The parties to appear before the trial Court on 06.09.2016. The respondent defendant to file his written statement within a period of one month from the date of appearance of the parties before the trial Court. The trial Court shall thereafter decide the suit within a period of eight months after receipt of the written statement.