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2018 DIGILAW 1760 (GAU)

Rupa Gogoi v. Md. Abdul Aziz S/o Late Md. Ashan

2018-12-19

KALYAN RAI SURANA

body2018
JUDGMENT & ORDER : Heard Mr. P. Upadhyay, the learned Advocate for the appellants and Mr. J. Sharma, the learned Advocate for the respondent. 2. This appeal was initially filed as a revision under Section 115 CPC and was registered as CRP No. 160/2017. As the challenge was made to the order dismissing the petition filed under Section 5 of the Limitation Act, 1963 which was accompanying an application under Order IX Rule 13 CPC to vacate an ex parte decree, the appellants had filed a petition for conversion of revision into appeal, which was registered as IA(C) 4085/17 (in CRP 160/17), whereupon this Court by order dated 25.05.2018 had allowed conversion of the said revision into appeal. Accordingly, the present appeal was registered. 3. The sole respondent herein, namely, Abdul Aziz is the plaintiff in TS No. 233/14, which was filed against Nripendra Nath Gogoi, the predecessor-in-interest of the appellants. The suit was for specific performance of contract to sell the suit land to the respondent. The suit was allowed by expartejudgment and decree dated 01.08.2015 passed by the learned Civil Judge No.1, Kamrup (M), Guwahati. Thereafter, the decree was put to execution by filing T. Ex. Case No. 7/2016. 4. The case projected by the appellants is that upon service of summons, their predecessor-in-interest had entered appearance in the suit on 11.02.2015 and instructed his advocate to get a copy of the plaint and documents and inform him, as the same was not served upon him. The predecessor-in-interest of the appellants, on good faith, believed on the information given by his Advocate that copy of plaint and documents were not served on him. 5. While waiting for being supplied with a copy of plaint and summons in TS 233/14, he was served with summons in connection with TS No. 169/16, filed by one Arjun Kumar Mahato for declaration and specific performance of contract in respect of the same suit land and for setting aside the judgment and decree dated 01.08.2015 in TS No. 233/14. Accordingly, it was projected that for the first time on 15.06.2016, the predecessor-in-interest of the appellants had received knowledge about the ex parte decree dated 01.08.2015 in TS No. 233/14. 6. The predecessor-in-interest of the appellants was advised by his same advocate to contest TS No. 169/16 and to file appeal against decree dated 01.08.2015 in TS 233/14. Accordingly, it was projected that for the first time on 15.06.2016, the predecessor-in-interest of the appellants had received knowledge about the ex parte decree dated 01.08.2015 in TS No. 233/14. 6. The predecessor-in-interest of the appellants was advised by his same advocate to contest TS No. 169/16 and to file appeal against decree dated 01.08.2015 in TS 233/14. Accordingly, the predecessor-in-interest of the appellants had paid a sum of Rs.15,000/-to his advocate for the same. Projecting that the financial condition of their predecessor-in-interest of the appellants was bad, he is stated to have made payment of money to his advocate on 15.08.2016. But as his previous advocate was pre-occupied, he advised the predecessor-in-interest of the appellants to engage another advocate. Thereupon, upon the advice given by the newly engaged advocate, the application for vacating the expartedecree was filed. It was also projected that the predecessor-in-interest of the appellants was a diabetic patient and was mostly confined to his home and moreover, his mother, was also being taken care by him had also died on 06.06.2016, for which the predecessor-in-interest of the appellants could not attend the Court regularly. It is further projected that the respondent herein had manufactured false, forged and fabricated documents and had obtained the decree and accepting the case of the plaintiff in TS No. 169/16, the case projected in TS No. 233/14 was denied. 7. In the proceeding of T.Ex. No. 7/2016, the petition under Order IX Rule 13 CPC was numbered as petition No. 257/16 and the application under Section 5 of the Limitation Act, 1963 for condoning 365 days delay was numbered as petition No. 256/16, which was registered as Misc. (J) Case No. 604/16. The respondent contested the said application and the learned Civil Judge No.1, Kamrup (M), Guwahati, by an order dated 20.12.2016 had rejected Misc. (J) Case No. 604/16. Immediately thereafter, the predecessor-in-interest of the appellants committed suicide on 11.01.2017. 8. Challenging the impugned order dated 20.12.2016, passed by the learned Civil Judge No.1, Kamrup (M), Guwahati, rejecting Misc. (J) Case No. 604/16, the learned advocate for the appellants has urged that the learned Court below had rejected the prayer to condone delay on the premise that notice of the execution case was served on the son of the predecessor-in-interest of the appellants, which was accepted by the learned Court below without examining the process server. (J) Case No. 604/16, the learned advocate for the appellants has urged that the learned Court below had rejected the prayer to condone delay on the premise that notice of the execution case was served on the son of the predecessor-in-interest of the appellants, which was accepted by the learned Court below without examining the process server. It is submitted that the son of the predecessor-in-interest of the appellants never received any notice in the execution case. It is submitted that along with the objection, the respondent had filed a postal certificate of delivery dated 19.02.2016, which cannot be considered as a conclusive proof of service of notice and, as such, the learned Court below had erred by relying on the same because no representative of the postal department was summoned to prove the same. It is also submitted that there was no intentional or willful negligence in pursuing the suit, but the predecessor-in-interest of the appellants was mislead by his previously engaged advocate and the learned advocate for the appellant had relied on the well established principle that no one should be made to suffer on account of lapses on the part of his advocates. It is also submitted that the learned Court below had erred in law in relying on the case reported in (2016) 4 GLR 110, because the case was under different facts. Hence, it is submitted that this appeal was liable to be allowed. 9. Per contra, the learned advocate for the respondent has submitted that the appellants as well as their predecessor-in-interest had never disclosed the name of their previously engaged advocates, although serious allegation of professional misconduct was made against him. The learned advocate for the respondent had submitted a list of dates, and has submitted that on 11.02.2015, the predecessor-in-interest of the appellants had appeared in the suit and prayed for time to file written statement, which was allowed. Thereafter, on 09.04.2015, the predecessor-in-interest of the appellants by filing petition No. 1441/15, prayed for time to file by alleging for the first time that he did not receive any documents. Hence, on direction given by the learned Court below, on the same day, the respondent had supplied copy of the documents filed with the plaint, which was kept on record, however, neither the predecessor-in-interest of appellants nor his advocate collected the said documents from the record. Hence, on direction given by the learned Court below, on the same day, the respondent had supplied copy of the documents filed with the plaint, which was kept on record, however, neither the predecessor-in-interest of appellants nor his advocate collected the said documents from the record. Rather, without verifying the records, the predecessor-in-interest of the appellants had mechanically filed petitions on 30.04.2015 and 18.05.2015 to defer the filing of written statement on the stale ground of documents having not been furnished, though the same were on record. Hence, the learned trial Court by order dated 18.07.2015, had ordered the suit to proceed ex parte. Once again, the predecessor-in-interest of the appellants had filed petition No. 2876/15, praying for documents, which was rejected and as the respondent had submitted his evidence, the suit was fixed for exparte argument. It is submitted that no initiative was taken to cross examine the respondent and on conclusion of hearing, the suit was decreed exparteon 01.08.2015. 10. It is submitted that the respondent had thereafter, issued notice on 25.08.2015 along with a copy of the ex parte judgment with a request to obtain sale permission, which was delivered on 29.08.2015 as per postal certificate dated 19.02.2016. The executing Court again issued notice in T.Ex. Case No. 7/2016 to accept balance amount and to execute the sale deed, which was served on 21.02.2016. Hence, in any view of the matter, the petition for vacating ex parte decree, having been filed on 31.08.2016, was hopelessly barred by limitation. 11. It is seen that there is no dispute in the Bar that the summons was duly served on the predecessor-in-interest of the appellants. Therefore, the only issue which arises for determination in this case is whether on the facts of this case, the bald insinuations made by the appellants and their predecessor-in-interest against the previous advocate would constitute a good ground to vacate the ex parte decree. 12. In this connection, it is seen from the date-wise events as narrated herein before, that although the predecessor-in-interest of the appellants had filed the petition to vacate the ex parte decree along with the petition to condone the 365 days delay, the predecessor-in-interest of the appellants had not summoned his previous advocate to prove the insinuations made against him. Moreover, the name of the previous set of advocates has also not been disclosed in this appeal. Moreover, the name of the previous set of advocates has also not been disclosed in this appeal. Although by filing affidavit-in-opposition in this case, the respondent had stated on oath about the date-wise progress of the suit, no attempt was made to deny the said statements and, as such, the appellants cannot escape the fact that documents as sought for by the predecessor-in-interest of the appellants was furnished on record of the learned Court below on 09.04.2015, as such, this squarely appears to be a case where the predecessor-in-interest of the appellants had not been diligently pursuing the suit. There is no explanation forthcoming that why the predecessor-in-interest of the appellants of the appellant or his engaged advocate could not appreciate the ex-parte hearing ordered in the suit, when it is well known that the “cause-list” register kept in each and every Court would contain a brief narration that the case was ordered for ex-parte hearing was not taken note of by them. 13. Moreover, no effort has been made to examine the postal employees to successfully question the contents of the postal certificate i.e. Document No.1 and 10 filed by the respondent along with his written objection before the learned trial Court. Moreover, the learned Court below has recorded in the impugned order dated 01.08.2015 that notice of T.Ex. Case No. 7/2016 was served on the son of the predecessor-in-interest of the appellants. No effort has been made either before the learned Court below or even in this appeal to bring the denial of the alleged recipient of notice on record, and he has also not been examined in respect of the alleged denial of any notice of execution case being served by the learned Court below. 14. In the case of Vijaykumar Durgaprasad Gajbi V.Kamlabai, (1995) 6 SCC 148 , the Hon’ble Supreme Court had declined to interfere by setting aside the decree when no materials had been placed by the affected party showing that they were diligently prosecuting the suit. The facts of this case also portray a similar picture. 15. 14. In the case of Vijaykumar Durgaprasad Gajbi V.Kamlabai, (1995) 6 SCC 148 , the Hon’ble Supreme Court had declined to interfere by setting aside the decree when no materials had been placed by the affected party showing that they were diligently prosecuting the suit. The facts of this case also portray a similar picture. 15. Therefore, in the considered opinion of this Court, on the basis of materials on record, the issue which arises for determination in this case is answered by holding that under the facts of this case, the bald insinuations made by the appellants and their predecessor-in-interest against the previous advocate does not constitute a good ground to vacate the ex-parte decree. 16. Hence, this appeal fails, and the same is dismissed. The impugned order dated 20.12.2016, passed by the learned Civil Judge No.1, Kamrup (M), Guwahati, rejecting Misc. (J) Case No. 604/16, is affirmed. Resultantly, the interim order dated 22.05.2017 passed by this Court in this case (formerly CRP No. 160/17) stands vacated. However, the parties are left to bear their own cost. 17. The parties are directed to appear before the Court of learned Civil Judge No.1, Kamrup (M), Guwahati in connection with T. Ex. Case No. 7/2016 on 18.01.2019, without any notice of appearance and seek further instructions from the said learned Court.