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2020 DIGILAW 228 (MP)

Pushpa Agrawal v. Anil Agrawal

2020-02-12

SUJOY PAUL

body2020
ORDER 1. Learned counsel for the appellants submits that the father of respondents, namely, Ram Avtar Agrawal filed a property Case No. 70-A of 1993 under various clauses of section 12 of the M.P. Accommodation Control Act, 1961. Learned District Court vide judgment dated 22.8.1995 dismissed the said suit and opined that relation of landlord and tenant could not be established by the plaintiff therein. Thereafter the sons of Ram Avtar/private respondents instituted RCS 371-A/2011 by suppressing the previous judgment dated 22.8.1995 passed in Case No. 70-A/1993. The present appellants were not served. They succeeded in obtaining a judgment and decree by suppression of fact. At the time of execution only, the present appellants came to know about the factum of passing the judgment dated 14.2.2012 in RCS No. 371- A/2011. The appellants promptly filed an application under Order 9 rule 13 of CPC, which was registered by the Court below as MJC No. 583/2011.The appellants herein categorically raised the objection regarding suppression of fact and the manner and method in which the decree was obtained by the respondents herein. The Court below although reproduced the said contention of the appellants in Para 2 of the order dated 1.3.2016, no amount of analysis was made on the said facet. The Court below by an erroneous order dated 1.3.2016 disallowed the application under Order 9 rule 13 of CPC. By placing reliance on a recent judgment of Supreme Court reported in AIR 2020 SC 41 (N. Mohan v. R. Madhu), Shri Gohil urged that the appellants had two remedies and they diligently availed the same. The appellants have shown sufficient cause and, therefore, delay may be condoned. 2. The prayer is vehemently opposed by Shri D.K. Kaushal, learned counsel for the respondents. Shri Kaushal urged that if both the remedies were available to the appellants, they should have exercised both the remedies simultaneously. He submits that the appellants have not shown sufficient cause for explaining enormous delay of 1410 days. Reliance is placed on (2015) 12 SCC 695 (Neeraj Jhanji v. Commissioner of Customs and Central Excise), 2016 (II) MPWN 62 (Jahoor Khan and others v. Ramvaran and others) and 2011 (3) MPLJ 135 (Lanka Venkateswarlu v. State of A.P. and others). 3. No other point is pressed by learned counsel for the parties on the question of condonation of delay. 4. 3. No other point is pressed by learned counsel for the parties on the question of condonation of delay. 4. I have heard learned counsel for the parties at length and perused the record. 5. The appellant raised categorical contention regarding fate of previously instituted suit filed by father of respondents. The Court below in the order dated 1.3.2016 did not pay any heed to the said contention. The Court below rejected the application against which the appellants have promptly filed this appeal. The apex Court in its recent judgment in the case of N. Mohan (supra) opined as under: "8. We have carefully considered the submissions and perused the impugned judgment and materials on record. The following points arise for consideration in this appeal: (i) After dismissal of the application filed Under Order IX rule 13 Code of Civil Procedure for condonation of delay in filing the appeal, whether the appeal filed Under section 96(2) Code of Civil Procedure against the ex-parte decree dated 9.10.2015 is maintainable? (ii) Whether the time spent in the proceedings to set aside the ex-parte decree be taken as "sufficient cause" within the meaning of section 5 of the Limitation Act, 1908 so as to condone the delay in preferring the first appeal? 9. When an ex-parte decree is passed, the Defendant has two remedies-(a) Either to file an application Under Order IX rule 13 Code of Civil Procedure to set aside the ex-parte decree by satisfying the Court that the summons was not served or if served, the Defendant was prevented by "sufficient cause" from appearing in the Court when the suit was called for hearing; (b) to file a regular appeal from the original decree to the first appellate Court in terms of section 96(2) Code of Civil Procedure and challenge the ex-parte decree on merits. 10. Right to file an appeal Under section 96(2) Code of Civil Procedure is a statutory remedy. The right to appeal is not a mere matter of procedure; but is a substantive right. Right to appeal Under section 96(2) Code of Civil Procedure challenging the original decree passed ex-parte, being a statutory right, the defendant cannot be deprived of the statutory right merely on the ground that the application filed Under Order IX rule 13 Code of Civil Procedure was earlier dismissed." 6. Right to appeal Under section 96(2) Code of Civil Procedure challenging the original decree passed ex-parte, being a statutory right, the defendant cannot be deprived of the statutory right merely on the ground that the application filed Under Order IX rule 13 Code of Civil Procedure was earlier dismissed." 6. A plain reading of this judgment makes it clear that the appellants had both the remedies: (a) To file an application under Order 9 rule 13 of CPC to set aside the ex parte decree dated 14.2.2012. (b) To file a regular appeal from original decree to the first appellate Court. The appellant had chosen both the remedies one by one. 7. In the opinion of this Court, the selection of remedy is within the province of litigant and it is for him to decide which remedy he wants to chose. By no stretch of imagination, he can avail both the remedies simultaneously. 8. In view of Para 10 of the judgment in K. Mohan (supra), it is clear that after decision on the application under Order 9 rule 13 CPC, the right to file an appeal under section 96 is not taken away. Thus, I am unable to hold that the appellants have not shown any sufficient cause for belatedly filing this appeal. So far judgment of Supreme Court in the case of Neeraj Jhanji (supra) is concerned, suffice it to say that in the said case, the litigant approached a wrong forum and the Court opined that it amounts to lack of bona fides on the part of litigant therein. 9. In the instant case, by no stretch of imagination, it can be said that the application filed under Order 9 Rue 13 of CPC was either before wrong forum or amounts to abuse the process of Court. Shri Kaushal also relied on 2011 (3) MPLJ 135 (Lanka Venkateswarlu) (supra). In this case, the apex Court opined that the Court while deciding the application for condonation of delay do not enjoy unlimited and unbridled discretionary power. The discretion power has to be exercised in a judicious manner. There cannot be any quarrel on the legal proposition. 10. In the instant case, in my view, the judgment dated 14.12.2012 is passed in ex parte proceedings without considering the previsions judgment in Suit No. 70-A/1993. The discretion power has to be exercised in a judicious manner. There cannot be any quarrel on the legal proposition. 10. In the instant case, in my view, the judgment dated 14.12.2012 is passed in ex parte proceedings without considering the previsions judgment in Suit No. 70-A/1993. The judgment of Prakash v. Uma Chaturvedi and others, 2016 (1) MPLJ 222 is of no assistance because in the said case, the Order 9 rule 13 CPC application was filed before the improper forum. Similarly the judgment in Jahoor Khan (supra) cannot be pressed into service because in the said case, no sufficient cause was shown for belatedly filing the proceedings. 11. Since appellants have satisfactorily established that they filed the application under Order 9 rule 13 immediately after getting the knowledge of passing of ex parte judgment through execution proceeding and immediately filed this appeal after decision of application under Order 9 rule 13 of CPC, in my view, the delay is satisfactorily explained. Accordingly, the interlocutory application is allowed. Delay is condoned. 12. The appeal is formally admitted for hearing. 13. List in due course. Interim relief, if any, shall continue till next date of hearing. ..................