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2019 DIGILAW 162 (JK)

Suraj Singh v. Surinder Kumar

2019-03-27

RASHID ALI DAR

body2019
JUDGMENT : RASHID ALI DAR, J. 1. An ex-parte judgment and decree had been called in question by the respondents, which had followed against them in a suit filed by the present petitioner, in the Court of Sub-Judge, Jammu. The suit has been instituted on 29.05.2009 and decided on 30.05.2015. The respondents filed an application for setting aside the said judgment and decree along with an application for condoning the delay in filing the same. The said application has been allowed by the learned Sub-Judge, Jammu by passing an order on 26.02.2019. Learned Sub-Judge has noted the facts including the factum of filing of suit, passing of ex-parte judgment and decree on 30.05.2015 and thereafter the commencement of the execution proceedings at the instance of the Plaintiff, wherein other side has caused appearance. 2. Learned Judge has referred to the averments of the application presented before him for condoning the delay. The respondents herein had pleaded therein that they had engaged a counsel to defend the case, who had advised them that their presence was not required and so they did not appear before the said Court. The plea had also been taken as noted in the impugned order that the learned counsel did not advise them even to challenge the ex-parte judgment and decree and so the same has resulted in laying the motion with delay. 3. The objection of other side (the present petitioner) has also been noted in the impugned order wherein it is stated that the pleas taken for condoning the delay are without any merit and so the application was required to be dismissed. 4. The observation has been made by the learned Judge that the respondents should not suffer for wrong advice tendered by earlier counsel. As according to him, it was the wrong advice of the counsel, which was the reason for filing the application beyond time. After framing the opinion that delay was required to be condoned, the learned Judge has also set aside the ex-parte judgment and decree as the learned Judge was of the opinion that the same needs 'sympathetic consideration'. 5. As according to him, it was the wrong advice of the counsel, which was the reason for filing the application beyond time. After framing the opinion that delay was required to be condoned, the learned Judge has also set aside the ex-parte judgment and decree as the learned Judge was of the opinion that the same needs 'sympathetic consideration'. 5. The petitioner has submitted that the supervisory jurisdiction of this Court was required to be invoked in the instant case under Section 104 of the Constitution of Jammu and Kashmir and the order was patently perverse, based on no evidence and no reasonable person could have come to the conclusion that it was a sufficient cause not prosecuting the defence in the matter. Reference of the names of the counsel appearing for the respondents has also been given, who had been assigned the job of prosecuting the defence on behalf of the respondents herein and who according to the petitioner had not been aware as to what was attributed to them by the respondents herein. The dates on which the respondents have caused appearance in the contempt petition and other proceedings is also given in the petition. S/Shri Anil Bagotra, Sushashi Vasisatha and Nikhil Choudhary, Advocates had been appearing in succession in the case while substituting each other on behalf of the respondents. It was highly improper according to the petitioner herein, to treat the assertion made by the respondents in the application/applications as a gospel truth and without giving a thought to its varsity. Learned Sub-Judge is also stated to have observed in breach the settled principles of "ignorantia-juris-non-excusat" without putting the respondent to proof of the averments made regarding improper advice and inaction of all the counsels engaged by them. 6. The matter was heard at the very threshold as other side has been on caveat and the parties accordingly prayed that the petition be disposed of finally on hearing them and after considering the material on record. 7. Learned counsel for the petitioner has reiterated the grounds taken in the petition and submitted that ground is made out for exercise of jurisdiction. He has placed reliance on a judgment passed by the Allahabad High Court in Harbir Singh Malik v. Additional District and session Judge, Lucknow & Ors. 7. Learned counsel for the petitioner has reiterated the grounds taken in the petition and submitted that ground is made out for exercise of jurisdiction. He has placed reliance on a judgment passed by the Allahabad High Court in Harbir Singh Malik v. Additional District and session Judge, Lucknow & Ors. reported in 2011 (1) R.C.R. (Civil) 457 and contended that unscrupulous litigant cannot be permitted to exploit or misuse process of court. He has also placed reliance on a judgment of Hon'ble Supreme Court of India in Salil Dutta v. TJM. & M.C. Private Ltd. Reported in 1993 (2) SCC 185 to contend that the advocate is the agent of the party. His acts and statements made within the limits of the authority given to him, are the acts and statements of the principal, i.e., the party who engaged him but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted, according to learned counsel. 8. On the other hand, counsel appearing for the respondents has stated that the learned Sub Judge has not erred in adopting the course referred (supra) as the respondents had made out a case for condonation of the delay and consequently prayer for setting aside the ex-parte judgment and decree. No injury would be caused to the other side if case is heard on merits and the respondents have permitted to prosecute the defence. Learned counsel has relied upon the judgments of the Hon'ble Apex Court in 2010(6) JKJ 875 [SC] Collector Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors. reported in 1987 SCR (2) 387, State of Haryana v. Chandra Mani & Ors. reported in 1996 SCC (3) 132, to substantiate the arguments. In Collector Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors. case, interpretation of the word 'sufficient cause' has been made by their Lordships. v. Mst. Katiji & Ors. reported in 1987 SCR (2) 387, State of Haryana v. Chandra Mani & Ors. reported in 1996 SCC (3) 132, to substantiate the arguments. In Collector Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors. case, interpretation of the word 'sufficient cause' has been made by their Lordships. An the appeal has been preferred out of a decision enhancing compensation in respect of the acquisition of lands for a public purpose to the extent of nearly 14 lakhs rupees by making an upward revision of 800% (from Rs. 1000 per kanal to Rs. 8000 per kanal). 9. In Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, passed in Civil Appeal Nos. 297-2971 of 2012, their Lordships in paragraph No. 18 of the said judgment has observed as: "18. What needs to be emphasized is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest." 10. In Rafiq & Anr. v. Munshilal & Anr. reported in 1981 SCR (3) 509, their lordships have observed that it is not proper that an innocent litigant, after doing everything in his power to effectively participate in his proceedings by entrusting his case to the Advocate, should be made to suffer for the inaction, deliberate omission or misdemeanor of his agent. For whatever reason the Advocate might have absented himself from the Court, the innocent litigant could not be allowed to suffer injustice for the fault of his Advocate. 11. Considered the rival submission. Legal position as to how a contention raised on behalf of the parties has to be evaluated while deciding the same on the touchstone of sufficient cause, for condoning the delay is not in dispute. What is principally significant and needed to be gone into, is the conduct of a particular party. It is to be seen whether the contention raised was bona fide or just to cover up a deliberate lapse in not prosecuting the defence. Learned trial Judge has shown benevolence in condoning the delay just by accepting the plea raised on behalf of the respondents as final word about the manner in which the case has been prosecuted on behalf of the defendants/respondents. 12. No reference is found in the order about the name of learned counsel who in the opinion of learned Trial Court had failed to prosecute the case or had tendered a wrong advice. 12. No reference is found in the order about the name of learned counsel who in the opinion of learned Trial Court had failed to prosecute the case or had tendered a wrong advice. Admittedly, the case was not pending in the High Court where a litigant does not play a significant role in listing of a particular case, or in its prosecution. The case assigned to the learned Advocate by the respondents was not even before the appellate forum other than High Court where too the parties generally do not appear in person. The petitioner herein has been categorically stating that it was not just one Advocate who had been appearing on behalf of the respondents in the case. He has quoted the names of advocates who in succession had appeared on behalf of the respondents. The respondents in terms of the application have made a vague and loose assertion that the earlier counsel never advised them to challenge the ex-parte decree or about the limitation period to challenge it. In paragraph No. 6 of the application, the respondents have averred that another counsel was consulted by them who advised them to have a legal remedy to file an application for setting aside the ex-parte judgment and decree. The date on which they had consulted next counsel is not given, nor the name of such counsel. The basis on which the delay has been condoned is undisputably factual point, which as said supra, has been treated correct by the learned trial Court. 13. In the facts and circumstances of the case, learned trial Court was under an obligation to go through the minutes of the proceedings of the case wherein ex-parte judgment was passed along with incidental/supplementary proceedings in order to see, may be prima facie, worth of the assertion made and also as to whether imputation made vis-à-vis counsel they had engaged was properly placed. The learned trial Court in order to see summarily the strength of the contention raised could have asked the respondents herein to examine themselves as witnesses and other evidence as the circumstances also permitted to be brought on record. An opportunity had to be afforded to other side to have cross-examination of the witnesses and to counter evidence produced, if any, by the respondents. An opportunity had to be afforded to other side to have cross-examination of the witnesses and to counter evidence produced, if any, by the respondents. The discretion vested in the Court and the elasticity in having the interpretation of the word 'sufficient cause' could not be made to the extent that the provisions of the law of limitation would become meaningless. The manner in which the discretion is to be exercised has not to be casual as the criteria for allowing or disallowing the application as aforesaid has to be the bona fide approach of the party seeking condonation. 14. The impugned order smacks of the casual approach made by the learned trial Court in entertaining and disposing of the application for condonation of delay and also application for setting aside ex-parte decree and judgment. Judgment and decree in no case be set aside on 'sympathetic consideration' as said by learned Trial Court. In the facts and circumstances of the case, impugned order is not found proper and correct. The interference of this Court is necessary to keep the trial Court within the bounds of its authority. 15. The grounds for exercise of power conferred in terms of the Section 104 of the Constitution of J&K akin to Article 227 of the Constitution of India, is made out. The order of learned trial Court is, accordingly, set aside. 16. The trial Court is directed to pass orders afresh in the matter. In doing so, learned trial Court may ask the respondents to produce the evidence, if any, and if so they choose, while the petitioner be also afforded an opportunity to counter the same. Proper order be, accordingly, passed in law thereafter. Copy of this order be sent to the Court below. 17. Disposed of as above along with connected IA(s).