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2016 DIGILAW 437 (KAR)

M. NAGESH SUVARNA v. NARAYANA

2016-06-13

B.VEERAPPA

body2016
JUDGMENT : The unsuccessful defendant filed this Regular Second Appeal against the judgment and decree dated 18.03.2013 made in R.A.No.78/2010 on the file of the II Addl. Senior Civil Judge, Mangalore, D.K., dismissing the appeal, confirming the order dated 07.06.2010 passed in Misc. Case No.5/2008 on the file of II Addl. Civil Judge, Mangalore, D.K., dismissing the Misc. petition filed under Order IX Rule 13 read with Section 151 of C.P.C. 2. The respondent, who is the plaintiff before the trial Court, filed the O.S.No.230/2006 against the appellant-defendant Daivasthana for a relief of declaration that the appellant-defendant has no right to trespass, encroach upon or interfere with the possession of the plaintiff in respect of the suit schedule property and also for permanent injunction restraining the appellant-defendant or anybody claiming under them from trespassing, encroaching upon or putting up any construction in the plaint schedule property and also direction to the defendant to remove the earth dumped on the plaint schedule property and to remove the concrete pillars under construction in the plaint schedule property, etc. 3. The present appellant-defendant, filed vakalath on 29.05.2006, but the written statement was not filed. In the meanwhile, defendant’s counsel, who was representing before the trial Court, had retired on 02.11.2006 without issuing notice to the present appellant about his retirement from the case and the trial Court without issuing Court notice to the party-defendant proceeded to decree the suit in part directing defendant and its Trustees headed by its President by way of mandatory injunction to remove the concrete pillars under construction over the plaint ‘A’ schedule property and also granted permanent injunction restraining the defendant, its Trustees or any one claiming under the said Trust from trespassing or interfering over the plaint schedule property or putting up any construction. The claim of the respondent-plaintiff for the relief of declaration has been dismissed. 4. Thereafter, the defendant, who is the present appellant, filed the Misc.Case No.5/2008 along with an application for condonation of delay seeking to setaside the exparte judgment and decree dated 04.01.2007 passed in O.S.No.230/2006 contending that after receipt of the summons from the Court, the defendant approached the advocate one Sri Arun Bangera, who filed vakalath on his behalf. As per the instructions of his advocate on 25.05.2006, the defendant went to his office and handed over the plaint with suit summons and instructed him to file the written statement. As per the instructions of his advocate on 25.05.2006, the defendant went to his office and handed over the plaint with suit summons and instructed him to file the written statement. On the assurance of his Advocate Sri Arun Bangera, the defendant waited for the call from his counsel, so as to instruct and prepare the written statement, but the defendant-appellant has not received any call from his counsel. Thereafter, the defendant contacted his advocate through his mobile, on which he came to know that vakalath has been filed by Sri Arun Bangera with his junior Mr.Jaker Hussain on 29.05.2006. Thereafter, the defendant contacted his advocate on several occasions so as to give necessary information in order to prepare the written statement, but on the assurance of his advocate, he did not attend his office and kept quite and waited for the call from his advocate. In the first week of June 2006, the defendant went to his counsel to enquire about the case, but on the assurance of his counsel he went back and again in the month of January 2007, the defendant enquired about the stage of the case, on that day he came to know that the case was posted for judgment on 04.01.2007. It was further assured by his advocate that the judgment would be rendered in favour of the defendant-petitioner. It is further averred that the defendant heard the news from the locality of Daivsthana about decreeing of the suit. Immediately, thereafter, the defendant went to the office of his counsel and asked about the suit, then he came to know that the suit was decreed. Thereafter, the certified copy was obtained and filed the Miscellaneous Petition to setaside the exparte decree. The respondent-plaintiff filed objections to the said case. Thereafter, defendant has examined as P.W.1 and adduced his evidence. The plaintiff has not led any evidence in support of his objections to the Miscellaneous application, the trial Court dismissed the petition filed under Order IX Rule 13 of Code of Civil Procedure read with Section 151 of Code of Civil Procedure on the ground that the Miscellaneous petition filed after lapse of 431 days and no valid reasons are assigned to condone the delay. 5. Aggrieved by the said judgment and decree, the present appellant filed the R.A.No.78/2010 before the II Addl. 5. Aggrieved by the said judgment and decree, the present appellant filed the R.A.No.78/2010 before the II Addl. Sr.Civil Judge, Mangalore, D.K., who after hearing both the parties, by her judgment and decree dated 18.03.2013 dismissed the appeal and confirmed the order dated 7.06.2010 passed in Misc.case No.5/2008 holding that the appellant has not made out any ground to interfere into the impugned order passed by the trial Court. The concurrent findings of fact recorded by the Courts below did not deter the appellant from preferring this regular second appeal as a last ditch attempt. 6. Respondent served unrepresented. 7. I have heard the learned counsel for the appellant. 8. Smt.Jayalakshmi K.B., learned counsel for the appellant, has contended that both the Courts below have proceeded to pass an erroneous judgment and decree mainly on the ground that there is delay in filing the miscellaneous petition ignoring the fact that the delay is on account of the fault committed by the counsel for defendant, who has not informed about his retirement from the case. She has further contended that since the rights of the parties are involved in respect of immovable properties, the Courts below ought to have considered the case on merits instead of dismissing the miscellaneous petition on the ground of technicality. Both the Courts below have not applied liberal approach while considering the case. Therefore, she sought to set-aside the judgment and decree passed by the Courts below. 9. This Court while admitting the appeal has framed the following substantial question of law for determination: “Were the Courts below justified in dismissing the application filed under Order IX Rule 13 of Code of Civil Procedure on the ground of the delay of 431 days in filing the miscellaneous petition?” 10. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellant and perused the entire materials on record. 11. It is not in dispute that respondent, who is the plaintiff before the trial Court, had filed O.S.No.230/2006 for declaration and permanent injunction in respect of suit schedule property. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellant and perused the entire materials on record. 11. It is not in dispute that respondent, who is the plaintiff before the trial Court, had filed O.S.No.230/2006 for declaration and permanent injunction in respect of suit schedule property. The judgment and decree of the trial Court clearly depicts that defendant remained absent and the trial Court passed the judgment and decree dated 04.01.2007 decreeing the suit in part, the defendant and its Trustees headed by its President were directed by way of mandatory injunction to remove the concrete pillars under construction over the plaint ‘A’ schedule property and also the defendant, its Trustees or anybody claiming under the said Trust were permanently restrained from trespassing or interfering over the plaint ‘A’ schedule property or putting up any construction therein. The claim of the respondent-plaintiff for the relief of declaration has been dismissed. 12. It is stated by the learned counsel for the appellant across the Bar that the plaintiff, who is the present respondent, has not filed any appeal against rejection of his title before the lower appellate Court. 13. It is also not in dispute that the defendant filed vakalath on 29.05.2006, but the written statement has not been filed. In the meanwhile, the learned advocate for the defendant-appellant has retired from the case on 02.11.2006 without issuing any notice to the defendant, the same is reflected in the judgment of the trial Court that the defendant was absent and ultimately, the trial Court without issuing Court notice to the party-defendant was proceeded with the suit and passed the judgment and decree dated 04.01.2007. 14. Against the said judgment and decree dated 04.01.2007, the defendant filed Misc.Case No.5/2008 to set-aside the ex-parte judgment and decree, as there was a delay of 431 days in filing the said miscellaneous petition, the defendant filed an application under Section 5 of the Limitation Act to condone the delay. The fact remains that the counsel, who appeared for the appellant before the trial Court has retired from the case without intimating the defendant and therefore, the defendant was not aware of the further proceedings. The trial Court has dismissed the Misc.Case No.5/2008 mainly on the ground of delay and laches without entering into the merits of the case. The fact remains that the counsel, who appeared for the appellant before the trial Court has retired from the case without intimating the defendant and therefore, the defendant was not aware of the further proceedings. The trial Court has dismissed the Misc.Case No.5/2008 mainly on the ground of delay and laches without entering into the merits of the case. The said order dated 07.06.2010 was the subject matter of the appeal before the lower appellate Court in R.A.No.78/2010. While considering the appeal, the lower appellate Court has reiterated the findings recorded by the trial Court and dismissed the appeal confirming the order passed by the trial Court without entering into the merits of the case. 15. Both the Courts below failed to notice that the suit filed is in respect of immovable property and the rights of the parties should not be deprived only on the ground of technicality. When substantial justice and technical considerations are pitted against each other, only the substantial justice should prevail. Admittedly, in the present case there is delay of 431 days in filing the miscellaneous petition and if the delay is condoned it will no way prejudice the rights of plaintiff-respondent by giving right to the appellant to putforth his case and the petition will be decided on merits. Admittedly, the appellant is coming from rural area and in a country like ours where there is so much poverty, ignorance, illiteracy, that it will not be possible to presume that every one knows the law of limitation to file an appeal and other legal proceedings within the period prescribed by law and the ends of justice require that the application for condonation of delay should have been granted by the lower Courts. 16. The Hon’ble Supreme Court while considering the delay on the fault committed by the advocate on record in the case of TAHIL RAM ISSARDAS SADARANGANI AND OTHERS VS. RAMCHAND ISSARDAS SADARANGANI AND ANOTHER reported in AIR 1993 SC 1182 has held that parties should not suffer and the relevant paragraph reads as under: “4. It is not disputed in the present case that on March 15, 1974 when Mr. Adhia, advocate withdrew from the case, the petitioners were not present in Court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. It is not disputed in the present case that on March 15, 1974 when Mr. Adhia, advocate withdrew from the case, the petitioners were not present in Court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adia withdrew from the case, the interests of justice required, that a fresh notice for actual date hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer.” 17. In the present case, the appellant defendant has explained the delay of 431 days in filing necessary application under Section 5 of Limitation Act stating that due to the ignorance of law and due to the fact that their advocate has been retired from the case without informing the stage of the suit and thereafter, the trial Court proceeded to pass an exparte judgment and decree, which clearly indicates in the judgment of the trial Court that the defendant was absent. The Courts below ought to have given an opportunity to the appellant-plaintiff to putforth his case by condoning the delay and decide the rights of the parties on merits. Mere dismissing the Misc.Petition on the ground of delay of 431 days would result in throwing out the appellant at the very threshold without considering the case on merits resulting in cause of justice being defeated. If the delay is condoned the highest that can happen is that the case would be decided on merits after hearing the parties and delay can be condoned by compensating the other side. Admittedly in the present case, the mistake committed by the counsel for the defendant, the defendant should not suffer because of the default of his advocate. 18. The Hon’ble Supreme Court in the case of RAFIQ AND ANOTHER V. MUNSHI LALAND ANOTHER reported in AIR 1981 SC 1400 while considering the delay in filing the application on account of the fault committed by the advocate on record has held that parties should not suffer and the relevant paragraph reads as follows: “3. 18. The Hon’ble Supreme Court in the case of RAFIQ AND ANOTHER V. MUNSHI LALAND ANOTHER reported in AIR 1981 SC 1400 while considering the delay in filing the application on account of the fault committed by the advocate on record has held that parties should not suffer and the relevant paragraph reads as follows: “3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs.200/should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi.” 19. The Hon’ble Supreme Court in the case of N. BALAKRISHNAN V. M.KRISHNAMURTHY reported in AIR 1998 SC 3222 while considering the delay of 883 days due to the failure on the part of the advocate to inform the appellant as well as the failure to take action in the case has held that the parties should not suffer, which reads as under: “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. 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 delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a 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. 14. In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs.Fifty thousand from the delinquent advocate through the Consumer Disputes Rederessal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this Court) within one month from this date.” 20. Admittedly, in the present case, the delay is 431 days and the rights of the parties in respect of immovable properties are involved and hence, the rights of the parties cannot be defeated by way of technicality. Therefore, the substantial question of law is answered in the negative holding that the Courts below were not justified in dismissing the Misc.Petition on the ground of delay. 21. In view of the aforesaid reasons, the regular second appeal is allowed. The impugned judgment and decree of the appellate Court dated 18.03.2013 passed in R.A.No.78/2010 on the file of II Addl. Senior Civil Judge, Mangalore, D.K., confirming the order dated 07.06.2010 passed in Misc.Case No.5/2008 on the file of II Addl. Civil Judge, Mangalore, D.K., are setaside. 21. In view of the aforesaid reasons, the regular second appeal is allowed. The impugned judgment and decree of the appellate Court dated 18.03.2013 passed in R.A.No.78/2010 on the file of II Addl. Senior Civil Judge, Mangalore, D.K., confirming the order dated 07.06.2010 passed in Misc.Case No.5/2008 on the file of II Addl. Civil Judge, Mangalore, D.K., are setaside. The application filed under Order IX Rule 13 R/w Section 151 of Code of Civil Procedure is allowed. The delay of 431 days in filing the Misc.Petition is condoned, the O.S.No.230/2006 is restored subject to condition that the appellant shall pay a sum of Rs.15,000/(Rupees Fifteen Thousand Only) to the respondentplaintiff before the trial Court and the matter is remanded to the trial Court for fresh adjudication between the parties to the lis on merits in accordance with law without being influenced by any of the observations made during the course of this judgment. The trial Court is directed to issue notice to the plaintiff and the defendant and to proceed with the case in accordance with law. In view of the disposal of the appeal, I.A.No.1/2013 does not survive for consideration.