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2019 DIGILAW 383 (UTT)

Navin Raina v. Harish Gulati

2019-06-25

SHARAD KUMAR SHARMA

body2019
JUDGMENT : Sharad Kumar Sharma, J. It is settled law that Courts of law have to have recourse resorted to by the parties which is settled and established by the ratio propounded by the judgments rendered by the superior Courts and also that it is to be considered that it is settled down ratio, which is emanating from the circumstances of a particular case or is based on general principle of law. 2. Though principally, on the issue of limitation or on the issue of setting aside the ex parte decree and propagating to get a lis decided on merits are the wider settled principle of law which provides that endeavours of the Courts should be to decide a lis between the parties which should be on merits and after providing due opportunity of hearing to the either side of the case. 3. But, there may be circumstances in a particular case, where the law has to be carved out in a fashion to settle down an appropriate ratio and the latitude of considering the delay or the application for setting aside the ex parte decree may not be permitted to be mis-utilized by litigants as a weapon to achieve its ulterior motive of delaying the decision making process and also that it may not act as a weapon to be utilized by the parties to the proceedings to delay the process and abuse the process of dispensation of justice. 4. It is, on the aforesaid wider principles that the controversy at hand has come up for consideration before this Court. Brief facts of the case, at hand, are that the respondent had instituted a Suit, being Civil Suit No. 289 of 2005, Shri Navin Raina Vs. Shri Harish Gulati, wherein, the plaintiff to the suit had sought a relief to the effect that a decree for recovery of a sum of Rs.1,60,000/- may be directed to be made as against the defendant for remittance to the plaintiff, which the plaintiff contends to have been fallen due to be paid to him in lieu of a payment of partial sale consideration, which was paid by plaintiff to the defendant as an advance or earnest money, which the defendant had agreed to enter into a sale of the property agreed to be sold between them. Later on, the plaintiff for the reasons, which has been expressed in the plaint had come to a conclusion that the said agreement for sale for the purchase of the property, more particularly, defined as Khasra No. 241/1, was agreed to be sold for a total consideration of Rs.18,10,000/- as against which, an advance sum of Rs.1,60,000/- was paid by the plaintiff, who later found or considered the property, not to be viable or worthy for purchase, hence, he instituted the suit for the following reliefs :- “A. A decree of sum of Rs.1,60,000/- along with pendent elite and future interest at the rate of 1% per month be passed in favour of the plaintiff and against the defendant. B. Any other relief which the learned Court deems fit and proper be passed in favour of the plaintiff and against the defendant. C. Full cost of the suit may kindly be awarded.” 5. The said suit as filed on 11th May, 2005, the notices were issued to the defendant and on the receipt of the notices, it is not in dispute that the present petitioner, who was the defendant in the suit, had put in appearance before the Court below, but subsequently, for the reasons, which would be dealt with later, had not participated in the proceedings diligently and consistently avoided his appearance before the Court and as a consequence thereto, the suit, in question, was directed by the Trial Court to proceed ex parte and was decreed in favour of the plaintiff respondent vide judgment dated 02.02.2008, ultimately, thereby directing the defendant/petitioner to pay the sum of Rs.1,60,000/- along with an interest @ 18% on the said amount. 6. The decree, thus, rendered on 2nd February, 2008, was obviously bound to be put to execution, being Execution Case No. 2 of 2009, Harish Gulati Vs. Navin Raina. Based on the said execution proceedings, the notices were issued to the judgment debtor to honour the decree dated 2nd August, 2008. It is the case of the defendant/petitioner that on the receipt of the notice in the execution case, he could gather knowledge of the ex parte decree. The defendant/petitioner had filed Misc. Application, which was numbered as Misc. Application No. 6 of 2009, Navin Raina Vs. It is the case of the defendant/petitioner that on the receipt of the notice in the execution case, he could gather knowledge of the ex parte decree. The defendant/petitioner had filed Misc. Application, which was numbered as Misc. Application No. 6 of 2009, Navin Raina Vs. Harish Gulati, wherein, in the application filed on 27th November, 2009, the defendant/petitioner had invoked the provisions contained under Order 9 Rule 13 of the C.P.C, seeking an order to set aside the ex parte decree dated 02.02.2008. The reason which was attributed and assigned in the application was that he could gather the knowledge of the decree dated 02.02.2008, only on 23rd September, 2009, for first time and after the receipt of the certified copy of the ex parte decree on 29.09.2009, he could file an application under Order 9 Rule 13. What is relevant to be pointed here is that even thereafter, the application under Order 9 Rule 13 of the CPC was preferred, much thereafter about 2 months from the date of receipt of the certified copy of the order by defendant / petitioner by filing the same on 27th November, 2009. The application under Order 9 Rule 13 of the CPC, accompanied with it, an application under Section 5 of the Limitation, seeking Condonation of delay of the period from 02.02.2008 to 27.11.2009, which has chanced in filing the restoration application, which was numbered as paper No. 8C2. The said delay Condonation application so filed was supported by an affidavit, wherein, in para 2 of the said delay Condonation application of the affidavit filed in support thereto, i.e. paper No.9C2, an averment has been made by the applicant/petitioner that for the purposes of considering the delay Condonation application, the reasons which has already been assigned in the application under Order 9 Rule 13, the same may be read as a reason for the Condonation of delay. 7. 7. Reverting back to the application under Order 9 Rule 13, which was principally instituted on 27th November, 2009, as paper No. 3C2, if the scrutiny is made to the affidavit, which was filed in support of the Order 9 Rule 13 application, i.e., paper No. 4C2, the learned counsel for the applicant to the application under Order 9 Rule 13 of the CPC, i.e. the petitioner had harped upon the pleadings, which has been raised in para 4 of the affidavit, filed in support of the application, which reads as under:- ^^;g fd 'kiFkdrkZ] oknh }kjk U;k;ky; esa okn izLrqr fd;s tkus ds i'pkr okn dk fu.kZ; ,d i{kh; gksus rd 'kiFkdrkZ o oknh ds e?; ekSf[kd :i ls ;g r; gkssus ds dkj.k fd oknh }kjk mDr okn U;k;ky; ds ek?;e ls vxzflr ugha fd;k tk;sxk] bl dkj.k 'kiFkdrkZ }kjk okn dh dksbZ iSjoh ugha dh x;hA** 8. In the affidavit, thus filed, the reason which has been assigned by the judgment debtor petitioner was to the effect that since the parties had orally agreed to settle their dispute without getting it adjudicated on merits through Court, hence, he has desisted or rather refrained himself from participating in the proceedings and had further contended which would be an admission that he himself has not taken any effective steps to contest the proceedings, in question. 9. Another argument, which was extended by the learned counsel for the petitioner though not on record nor pleaded, it was to the effect that as per the wider principles which have been laid by the Hon’ble Apex Court, while considering the application under Section 5 or the application under Order 9 Rule 13 and the manner or consideration, which should be taken care of while deciding application, the subject matter of controversy also plays a pivotal role in considering the propriety of the application filed under Order 9 Rule 13 or Section 5 Application for consideration of delay. 10. The contention of the learned counsel for the petitioner/defendant was to the effect that since the decree dated 02.02.2008 only held a liability of payment of a meagre amount of Rs.1,60,000/- alongwith interest of 18%, the application under Section 5, as well as the application under Order 9 Rule 13, has to be considered liberally and efforts should be made by the Court to decide the lis on its merit. 11. 11. What is significant to be observed in the instant case, at the risk of repetition at this stage is that the probable compromise which was the alleged basis of the application under Order 9 Rule 13 of the C.P.C. Before dealing with the objection preferred by the plaintiff/respondent as against the order under Order 9 Rule 13, at this stage itself, the Court considers it necessary to deal with the pleadings which has been raised by the petitioner in his affidavit, which was preferred on 20th May, 2012, that means almost after three years from the date of filing of the application under Order 9 Rule 13 of the C.P.C., yet again at a highly belated stage. 12. In the affidavit, which was filed on 12th May, 2012, the petitioner had rather carved out altogether another ground to support his contention contrary to what was pleaded under Order 9 Rule 13 of the C.P.C. to the effect that rather he should not be made responsible for his dereliction in participating in the proceedings diligently for the reasons that he has also engaged a counsel to contest the case and whenever he used to contact his counsel, he used to assure him that he need not to bother as the case would be taken care of by him. Rather what he wants to or intents to submit by the affidavit of 20th May, 2012, is that he himself is not independently responsible for the absence due to which the case has proceeded ex parte and decreed on 02.02.2008, but, he has rather tried to shoulder upon and shift the responsibility of absence on the counsel himself, who was not diligent enough to participate in the proceedings, or to inform the petitioner about the dates fixed by the Trial Court in the Suit. 13. 13. The statement made in para 4 of the application under Order 9 Rule 13 with regard to the theory of settlement or compromise, which, according to the petitioner, was in progress, if it is read in co-relation to the pleadings made in the affidavit, which has filed on 20th May, 2012, rather it runs contrary to the stand and pleadings taken earlier because if the pleadings of the affidavit dated 20th May, 2012, is scrutinized, in fact, the petitioner when he shoulders the responsibility of absence on his counsel, he himself rather intends to express that he has intention to get an adjudication on merit of the matter and not on the basis of the purported oral settlement, which he has taken the basis for filing Order 9 Rule 13. 14. He further submits that though in the subsequent paragraph, he had tried to reiterate his argument pertaining to the possibility and efforts of settlement likely to be arrived at between the parities, which was the reason, why the petitioner had not contested the matter on merits. 15. The contention raised by the defendant/petitioner in his application under Order 9 Rule 13, particularly having reference to para 4, which was the basis of the same have been denied by the plaintiff/respondent in his objection filed to the application under Order 9 Rule 13 in specific terms, wherein, he has specifically contended in para 4 that the theory of the proposed oral settlement, which was orally being agreed between the parties is absolutely a false story which has been developed by the plaintiff only for the purposes of maintaining the application under Order 9 Rule 13, otherwise, he had absolutely denied any such efforts being made, wherein, he has, in fact, contended that in its specific terms that there was no such agreement entered into or even an oral assurance was ever extended by him ever that the parties are on the verge of settlement of the dispute on the basis of the compromise. 16. 16. In fact, if the objection raised in para 3 of the affidavit, paper No. 13-C2, is taken into consideration, the plaintiff/respondent, herein, had also objected to the application filed under Section 5 of the Limitation Act by submitting that the application under Order 9 Rule 13 has been filed belatedly and there is delay of about 21 days in filing the same after the knowledge or the receipt of copy of decree, though the certified copy of the judgment and decree dated 02.02.2008, admittedly, according to the pleadings in the application itself was that it was received on 23rd September, 2009, and yet he has filed an application under Order 9 Rule 13, even much after the expiry of 30 days, thereafter on 27th November, 2009. Hence, also the application under Order 9 Rule 13 was delayed and was based on false and concocted reasons developed by him unilaterally. 17. The argument as extended by the learned counsel for the defendant/petitioner was from the view point that when the Court is considering an application under Section 5 of the Limitation Act or the application under Order 9 Rule 13, the Court should adopt a pragmatic and liberal view so that there can be an adjudication of the lis on merits, there cannot be any dispute on the said preposition of law as laid down by superior courts, but, in order to enforce that preposition, which has been vehemently opposed by the respondent on the ground that the applicant to the application under Order 9 Rule 13 or to Section 5 application has had to approach to Court with clean hands and should not plead or raise a non existing pleading on a misleading fact so as to obtain an order of re-hearing after setting aside the ex parte decree, by misleading facts or placing contradictory facts and reasons before the Court. 18. In the case, apparently, the application under Section 5 of Limitation Act, which was supported by the affidavit filed in support of the application under Order 9 Rule 13, the petitioner makes an averment pertaining to a fact which relates to the proposed settlement which was oral in nature. 18. In the case, apparently, the application under Section 5 of Limitation Act, which was supported by the affidavit filed in support of the application under Order 9 Rule 13, the petitioner makes an averment pertaining to a fact which relates to the proposed settlement which was oral in nature. The affidavit, which was sworn on the basis of the personal knowledge was denied by the respondents by counter affidavit / objection filed by the plaintiff/respondent, which too, was based on the oral assertion, as it finds place in the swearing clause. But what is significant to be pointed out at this stage is that if at all the theory of the petitioner pertaining to the absence on 02.02.2008 is to be attributed on account of negligence of his counsel, it was a fact which was available to him on the date when he has filed his application for setting aside the ex parte decree on 27th November, 2009. The then application under Order 9 Rule 13, as filed on 27.11.2009, does not reflect or plead any such grounds that non appearance was on account of lack of diligence at the behest of the counsel, whom he had engaged to conduct the case. 19. If there was any sanctity in the said plea to justify absence, it was expected to be taken by the petitioner at the first instance itself, while filing the application under Order 9 Rule 13. The application under Section 5 as well as an application under Order 9 Rule 13 came up for consideration before the learned Trial Court on 22nd September, 2015, and the learned Trial Court by the impugned order had rejected the application, paper No. 3Ga2 as well as the application under Order 9 Rule 13. While considering the propriety of the applications, the learned Trial Court in its judgement dated 22nd September, 2015, had denounced the theory of the proposed settlement and had rather observed that the nature of the contradictory pleadings, in fact, showed an intention of the petitioner to delay the case and to avoid an adjudication on merits of the matter and to mislead the Court by pleading contradictory and non-existing grounds. 20. 20. The learned Trial Court, while deciding the application in para 14, has recorded the finding that the petitioner cannot be permitted to take the stand as raised in the application for the reason that according to his own showing, the application under Order 9 Rule 13 was filed even much beyond time even after the receipt of the certified copy of the judgment and, hence, the theory of lenient view which was sought to be pressed for the consideration of the application under Section 5, would not come into play in the given circumstances, so as to protect its abuse because even thereafter also the application under Order 9 Rule 13 was filed at a highly belated stage. 21. The Court has also taken into consideration the fact as to what was the reason that why even after the receipt of the certified copy of the judgment dated 23rd September, 2009, what created hindrance in filing the application under Order 9 Rule 13 of the CPC which was filed only on 27th November, 2009. Thus, the Court feeling that the reason, which has been mentioned in the application and affidavits filed in support thereof has been rather developed for the purposes of filing of the application under Order 9 Rule 13 and it was, in fact, a non existing reason, which was specifically denied by the respondent after considering the ratio as laid down by the Hon’ble Apex Court, which propounds that though the theory of liberality in considering the delay condonation application is a settled law but that will not invariably be made applicable in all the cases and under all circumstances. It would always depend upon the circumstances and diligence which is projected to the application under Order 9 Rule 13 which would show his propriety and the genuine reason for the absence. It would always depend upon the circumstances and diligence which is projected to the application under Order 9 Rule 13 which would show his propriety and the genuine reason for the absence. In the absence of the said pleading and rather on account of the contradictory pleadings raised by the petitioner, the Court has rightly rejected the application under Order 9 Rule 13 as well as the delay condonation application holding thereof that the reason for delay which has been explained in the application is not satisfactory and that does not repose confidence to the theory of the so called compromise because even if for the time being, if it is presumed that the parties were entering into compromise or they were making an effort to enter into the compromise that in itself cannot be a ground for a litigant not to appear before the Court of law for getting a lis adjudicated. 22. The order dated 22nd September, 2015, rejecting Section 5 and application under Order 9 Rule 13, was challenged by the defendant/petitioner by preferring a Revision, being Revision No. 127 of 2018. The Revisional Court too, after rationally considering the rival contention and the reasoning raised on the aforesaid premise and after considering the ratio laid down by the Courts of law in the judgment pertaining to the fact that in what manner the term, “sufficient cause” has to be considered while considering the delay condonation application, it has to be seen that whether the litigant, who is an applicant of Section 5 application, has to approach to the Court with clean hand and not by concocting grounds to set aside the ex parte degree by misleading the Court on concocted facts. Hence, the intention of the limitation act while considering Section 5 application with a pragmatic and lenient view does not mean that invariably in every case, though the delay is deliberate, it may not be condoned invariably in all the cases, particularly, where the litigant has not come up with clean hands. Hence, the intention of the limitation act while considering Section 5 application with a pragmatic and lenient view does not mean that invariably in every case, though the delay is deliberate, it may not be condoned invariably in all the cases, particularly, where the litigant has not come up with clean hands. The Revisional Court had also considered one of the aspect that while considering the application for condonation of delay, at that point of time, the merits or demerits of the claim between parties is not to be taken into consideration at the time when the application for condonation of delay or application under Order 9 Rule 13 is being considered, which has to be exclusively considered as to whether, the delay which has chanced in preferring the application has been genuinely explained or not. The Revisional Court too, while considering the implications of Article 123 for setting aside the ex parte degree and the manner, in which, the limitation has to be interpreted, has taken into the consideration the ratio as propounded by the Hon’ble Apex Court in the judgment reported in 2010 (4) Civil Court Cases 120, Bhagmal and others Vs. Kumwar Lal and others, has held that the limitation for filing an application under Order 9 Rule 13 will start running from the date of passing of the ex parte degree and not from the date of knowledge of decree, or date of receiving the certified copy or the date of filing of the application under Order 9 Rule 13, and even if that is to be considered in a different manner, then too, atleast, the application ought to have been filed within the period of limitation contemplated under Article 123 of the Limitation Act, i.e. within the prescribed time period from the date of receipt of certified copy of the order. 23. Considering the aforesaid aspect, and the ratio as propounded by the Hon’ble Apex Court, the Revisional Court too had rightly dismissed the Revision holding thereof that for the purposes of filing the application under Section 5, or an application under Order 9 Rule 13, the petitioner has not come up with clean hands and the theory of the so called compromise which was contended to be in progress was not proved beyond doubt. 24. 24. In support of his contention, the learned counsel for the respondent though had in principle admitted the latitude for considering the Section 5 application or an application under Order 9 Rule 13, do envisage that it has to be liberally construed but he has reiterated the stands and the findings which has been recorded by both the courts below concurrently that liberal consideration does not mean a consideration which has distorted in deviation from the fact which are involved in the case. In support of his contention, the learned counsel for the respondent has placed reliance on catena of judgments as to what would be the scope and the jurisdiction of the Court at the stage when the application under Order 9 Rule 13 CPC is being taken into consideration. 25. For the reasons assigned above, this Court does not find any merit in the writ petition, hence, the same is dismissed. 26. There would be no order as to costs.