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2017 DIGILAW 1403 (ALL)

LAVANYA BHATTACHARYA v. UTTMALENDU BHATTACHARYA

2017-05-26

MANOJ MISRA

body2017
JUDGMENT Hon’ble Manoj Misra, J.—Heard Sri Vishnu Gupta, learned counsel for the petitioners; Sri H.R. Mishra, learned senior counsel assisted by Sri V.R. Dwivedi for the respondents; and perused the record. 2. The present petition has been filed challenging the orders dated 25th November, 2015 and 7th April, 2017, passed by Additional Civil Judge, Court No. 11, Allahabad in Misc. Case No. 11 of 2014 and Additional District Judge, Room No. 14, Allahabad in Misc. Civil Appeal No. 13 of 2016, respectively. 3. An Original Suit No. 978 of 2008 was instituted by the plaintiff-respondent No. 1 against his own brothers, namely, Nilendu Bhattacharya (defendant No. 1) and Ashok Bhattacharya (defendant No. 2-Proforma respondent No. 2 in the present petition) for mandatory injunction seeking eviction of defendant No. 1. During the pendency of the suit, on 26th November, 2011 the defendant No. 1 died. For substitution of his heirs and legal representatives, it appears, a substitution application was filed. On the said substitution application, notices were issued by ordinary post as well as by Registered Post to the proposed heirs and legal representatives. The said notice was deemed served upon the proposed heirs and legal representatives by way of refusal. Thereafter, vide order dated 28th May, 2012 the substitution application was allowed. After allowing the substitution application again the Court issued notice to the substituted heirs and legal representatives of defendant No. 1. The said notice was refused to be accepted, as a result, the Court proceeded to pass order on 4th September, 2012 holding that service of notice upon the defendants was sufficient. On 12th October, 2012, the Court directed the case to proceed ex parte against the defendants. Thereafter on 31st May, 2013, an ex parte decree was passed. This ex parte decree was put to execution vide execution case No. 1 of 2013. In the said execution case, notice on the judgement-debtor Smt. Lavanya Bhattacharya (petitioner No. 1) was served on 11th September, 2013 personally. She is one of the heirs and legal representative of deceased-defendant No. 1. Thereafter, on 20th September, 2013, Sontu Bhattacharya (petitioner No. 2), who happens to be son of Lavanya Bhattacharya (wife of deceased-defendant No. 1), applied for obtaining certified copy of the judgement and decree passed in Original Suit. On 28th October, 2013, an application was filed for setting aside the ex parte decree. Thereafter, on 20th September, 2013, Sontu Bhattacharya (petitioner No. 2), who happens to be son of Lavanya Bhattacharya (wife of deceased-defendant No. 1), applied for obtaining certified copy of the judgement and decree passed in Original Suit. On 28th October, 2013, an application was filed for setting aside the ex parte decree. The said application was accompanied by application 4 C, seeking condonation of delay under Section 5 of the Limitation Act. 4. In the affidavit filed in support of the delay condonation application, Sontu Bhattacharya (petitioner No. 2) made a statement that after the death of his father, no notice was served upon the applicants and no information about the pendency of the suit was given. In paragraph 7 of the affidavit, it was stated that for the first time they came to know about the present suit and decree on 10th October, 2013 when they had received notice of caveat application. It is stated that thereafter they contacted Naresh Taneza, Advocate on 15th October, 2013 and, upon enquiry, they came to know about passing of ex parte decree on 17th October, 2013 and, later an inspection of file was made on 21st October, 2013 when they finally received knowledge of the ex parte decree and then within thirty days therefrom, they filed application for setting aside the ex parte decree and therefore the delay in filing application to set aside the decree be condoned. 5. In response to the above affidavit, the decree-holder filed counter-affidavit. In the counter-affidavit the allegation that the heirs and legal representatives of deceased-defendant No. 1 had no notice of the proceeding was denied and it was specifically stated that notice of the execution case had been served on the applicants on 11th September, 2013 and that they had obtained copy of judgement and decree on 20th September, 2013 on an application moved under signature of applicant No. 2 Sontu Bhattacharya and therefore they had complete knowledge not only of the suit proceeding but also of the decree and stand taken that they received knowledge for the first time on receipt of caveat application was nothing but false. 6. 6. In response to the counter-affidavit filed to the application under Order IX Rule 13 CPC, rejoinder-affidavit was filed by Sontu Bhattacharya in which, to wriggle out from the fact that certified copy of the decree was applied for by the petitioner No. 2, in paragraph 25 of the rejoinder-affidavit it was stated that some person forcibly got the application signed from the applicant though he does not recognize that person but he had never applied for copy of the judgement. 7. The Court below did not find substance in the explanation offered by the petitioners and accordingly rejected the application seeking condonation of delay by observing that the notice of the execution proceeding had been duly served upon the applicants and they had also applied for copy of the judgement and decree passed in Original Suit therefore the stand taken that they had received knowledge of the proceeding for the first time on 10th October, 2013, upon receipt of the caveat application, was not acceptable and, accordingly the delay condonation application was rejected. The appellate Court examined the matter at length and has affirmed the finding returned by the Court below and has accordingly dismissed the appeal. 8. Learned counsel for the petitioners has assailed the orders impugned by claiming that the delay, if any, in filing application under Order IX Rule 13 CPC, would have to be seen from the date when certified copy of the judgement and decree was allegedly obtained and if the delay is to be counted from that date, the delay is only of about 8-10 days and therefore, such small delay ought to have been condoned. It has been submitted that, under the circumstances, the order passed by the Courts below deserve to be set aside and the application under Order IX Rule 13 CPC should be decided on merits. 9. Sri H.R. Mishra, who has appeared on behalf of the respondents, submitted that in a case where recall of an ex parte decree is sought, then the conduct of the applicant is to be considered not only from the date when copy of the ex parte judgement and decree is received, but is to be seen in its totality to ascertain whether despite knowledge of the proceeding has deliberately absented himself, particularly when summons of the proceeding has been served. It has been submitted that in the present case, the Court below has found that notice of the suit proceeding was duly sent to the applicants by Registered Post which they had refused to accept. Moreover, in their affidavit, which was filed in support of application under Order IX Rule 13 CPC, there was no specific averment that endorsement of refusal was procured or obtained by fraud or that the address mentioned in the notice, which was allegedly refused, was incorrect. It has been submitted that otherwise also a false statement has been made in the affidavit filed in support of delay condonation application that the knowledge of the ex parte decree was obtained on 10th October, 2013 when notice of a caveat application was received when, in fact, not only the applicants were served with notice of the execution proceeding but they had also applied for certified copy of the judgement and decree passed in suit proceeding, on 20th September, 2013. Therefore, under the circumstances, they had knowledge of the ex parte decree and the stand which was taken was completely false. It has also been submitted that to wriggle out from the incorrect statement that the knowledge of ex parte decree was received upon receipt of caveat application, again, false stand was taken that earlier application moved for obtaining certified copy of the decree was got signed by some person whom the applicant did not know. It has been submitted that all these facts and circumstances clearly suggest that the applicants were not telling the truth and under the circumstances once the Court comes to a conclusion that the stand taken by the applicant, in respect of non-service of notice or having no knowledge about the decree, was false and incorrect, the rejection of delay condonation application calls for no interference. 10. At this stage, learned counsel for the petitioners submitted that suit itself was not maintainable and since the suit was between brothers, the Court ought to have been more liberal in its approach. 11. 10. At this stage, learned counsel for the petitioners submitted that suit itself was not maintainable and since the suit was between brothers, the Court ought to have been more liberal in its approach. 11. In response to the above submission the learned counsel for the respondent submitted that the petitioners have also filed an appeal against the judgement and decree and therefore the merit of the decree may be tested in the appeal and in so far as application under Order IX Rule 13 CPC is concerned, the same has rightly been rejected as barred by limitation because the delay condonation application did not disclose sufficient cause to condone the delay. 12. I have given thoughtful consideration to the submissions of learned counsel for the parties. 13. This Court finds that no doubt the length of the delay is not much if it is to be counted from the date of filing of application to obtain certified copy of the judgement and decree or from the date of supply of certified copy, but what is to be considered is whether the explanation for the delay has rightly been found false or not. The applicants had sought to explain the delay by claiming that knowledge of the ex parte decree was received on 10th October, 2013 when notice of caveat application was received and thereafter when file of the case was got inspected. The record however discloses that the applicants had applied for obtaining ex parte judgement and decree and had obtained the same on 20th September, 2013. A specific stand was taken by the decree-holder that the application to obtain ex parte decree was moved under the signature of the applicant No. 2, who is none other than son of the applicant No. 1. In the rejoinder-affidavit, the applicant No. 2 did not show courage to deny his signature on the application but to wriggle out of the embarrassing position in which he found himself in the proceeding, he took a stand that some person got his signature on the application by playing fraud though he does not recognize that person. In the rejoinder-affidavit, the applicant No. 2 did not show courage to deny his signature on the application but to wriggle out of the embarrassing position in which he found himself in the proceeding, he took a stand that some person got his signature on the application by playing fraud though he does not recognize that person. The said explanation does not inspire confidence and, under the circumstances, the view taken by the Court below that the explanation offered for condonation of delay was not bona fide, is a possible view and needs no interference by this Court, particularly in exercise of power of superintendence where this Court is required to assess whether there is any jurisdictional defect in passing the orders impugned. 14. The petition is dismissed.