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2020 DIGILAW 362 (UTT)

Kamala Devi v. Ghanshyam Bhagat

2020-10-03

SHARAD KUMAR SHARMA

body2020
JUDGMENT Sharad Kumar Sharma, J. - This Writ Petition, was heard previously on several occasions, by this Court, but during the dates of the normal functioning of the High Court, and in view of the fact that the proceedings were being conducted through video conferencing due to pandemic, the judgment could not have been dictated on video conferencing and hence, with the prior permission of the Hon'ble The Acting Chief Justice, this Writ Petition, has been notified to be listed under the head of dictation of judgment today, i.e. 3rd October, 2020, when the judicial proceedings of the High Court, otherwise remains suspended on account of there being a holiday. The prior information with regard to the listing of the matter, has been notified with the prior information to the respective counsel, and they are present today, while participating in the proceedings of the dictation of the judgment. 2. The petitioner, herein, in the present Writ Petition, has questioned the impugned order dated 19th November, 2010, as passed by the Court of Second Additional District Judge, Nainital, whereby, the application filed by the respondent under Order 41 rule 19 of the CPC; to be read with Section 5 of the Limitation Act, has been allowed, and as a consequence thereto, the Civil Appeal, being Civil Appeal No. 7 of 2007, Ghanshyam Bhagat and another Vs. Smt. Kamala Devi, has been directed to be restored to its original number, to be heard on its merits. 3. There are certain factual backdrops, which are necessarily required to be considered by this Court, for a better appreciation of the controversy, in question. 4. The facts are, that the plaintiff/ respondents, Ghanshsyam Bhagat and another, had instituted a Civil Suit, being Civil Suit No. 24 of 1998, thereby seeking a decree of declaration of title and partition on the basis of the registered will in relation to the property, in question, which was the subject matter of the Suit. During its pendency, the present defendant/petitioner, had filed a counter claim by invoking the provisions contained Order 8 Rule 6A of the CPC. Be that as it may. During its pendency, the present defendant/petitioner, had filed a counter claim by invoking the provisions contained Order 8 Rule 6A of the CPC. Be that as it may. At this stage, we are not required to go into the intricacies of the Suit and their respective rights of the parties to the Suit in relation to the subject matter of the Suit, in question, because the controversy which is being dealt with in the Writ Petition, is arising out of an ancillary proceeding, which has emanated during the stage of pendency of the regular Civil Appeal, being Civil Appeal No. 7 of 2007, Ghanshyam Bhagat and another Vs. Smt. Kamla Devi, which was preferred by the defendant/respondent, herein, as against the dismissal of their Suit by the judgment and decree dated 22nd January, 2007, i.e. Suit No. 24 of 1998, Ghanshyam Bhagat and others Vs. Smt. Kamla Devi. 5. It is once again essential at this stage itself to point out that that we are once again venturing into the merits of Civil Appeal, as we are at the moment not concerned to deal with the merits of the Appeal itself, for the reason being that the debate which would be, as to what would be the impact of an application under Order 41 Rule 19 and under the peculiar facts and circumstances of the present case as involved in the present Writ Petition, whether at all it could have been allowed by the Appellate Court due to alleged non fulfilment of certain terms and conditions imposed by the Hon'ble Apex Court, which the petitioner contends were not satisfied by the plaintiff/respondent, and hence, he submits that the Appellate Court's impugned order of restoring the Civil Appeal, to its original numbers; runs contrary to number of facts and circumstances, which are being dealt with hereinafter. 6. It happened so that the Civil Appeal, in question, was listed before the learned First Appellate Court and on account of there being an absence of the appellant, and his counsel, the Civil Appeal was dismissed for want of prosecution on 17th August, 2010, by the Court of 2nd Additional District Judge, Nainital. 7. Seeking its recall, contending thereof that the knowledge of the dismissal of Appeal in default on 17.08.2010, could be gathered by the plaintiff/respondent only on 13th May, 2011, the plaintiff/respondent had instituted a Misc. 7. Seeking its recall, contending thereof that the knowledge of the dismissal of Appeal in default on 17.08.2010, could be gathered by the plaintiff/respondent only on 13th May, 2011, the plaintiff/respondent had instituted a Misc. Case No. 38 of 2011, seeking recall of the order dated 17th August, 2010, dismissing the Civil Appeal No. 7 of 2007 for want of prosecution. 8. Consequent thereto, the said proceedings of the Misc. Case 38 of 2011, which was instituted by the respondents, before the Appellate Court on 19th May, 2011, which was also supported with the delay Condonation application, paper No. 6Ga, as the recall application itself was preferred after the expiry of nine months from the date of dismissal of Appeal in default. It was that during the intervening period, when the Appeal stood dismissed for want of prosecution by an order dated 17.08.2010, there have been a simultaneous execution proceedings, being Execution Case No. 1 of 2011, for the purposes of executing the decree dated 22.01.2007, and as per the pleadings, which have been brought on record, it has been averred that on the basis of Advocate Commission's report dated 15th April, 2011, the ex parte decree dated 22nd January, 2007, stood executed by virtue of judgment dated 15th April, 2011, and thus the decree stood satisfied. 9. The Misc. Case No. 38 of 2011, which was instituted by the plaintiff/respondent on 19th May, 2011, seeking recall of the order dismissing, the Civil Appeal No. 07 of 2007, in default, was rejected by an order dated 12th March, 2014, which was passed by the 1st Appellate Court. The reasons, which has been assigned therein by the Appellate Court, while passing an order of 12th March, 2014, was to the effect that it was admitted in the pleadings of recall by the respondents, that they could gather the knowledge of the dismissal of default dated 17th August, 2011, i.e. on the same day, which was imparted to them through their Counsel who informed them, about the order of dismissal of Civil Appeal in default. 10. It was further admitted in the proceedings of the Misc. Case No. 38 of 2011, by the plaintiff/respondent, that they were further also informed by their counsel through telephone. 11. 10. It was further admitted in the proceedings of the Misc. Case No. 38 of 2011, by the plaintiff/respondent, that they were further also informed by their counsel through telephone. 11. Being aggrieved against the order of 12th March, 2014, rejecting their application under Order 41 Rule 19 of the CPC, as per the legal advice, which was extended to the plaintiff/respondent, the plaintiff/respondent had preferred a Writ Petition, being Writ Petition No. 115 of 2014, which remained pending for a considerable long time, till it was dismissed on 24th March, 2017, holding thereof that the Writ Petition as against the order 12.03.2014, would not be tenable, as the appropriate remedy, which was available to the plaintiff/respondent as against the order dated 12th March, 2014, would be to file an Appeal from Order under Order 43 Rule 1 (t). Subsequent thereto, an Appeal from Order was preferred by the plaintiff/respondent before this Court, and it was numbered as Appeal from Order No. 171 of 2017. The Coordinate Bench of this Court while dealing with the various aspects on merits, as well as, pertaining to the judicial pronouncements, particularly, in relation to the interpretation to be given to the Delay Condonation Application, which was the application preferred by the plaintiff/respondent in invoking the provisions contained under Order 41 Rule 19 of the CPC; by filing an application on 19th May, 2011, on the basis of the various judicial pronouncements, the Appeal from Order No. 171 of 2017,was allowed by judgment dated 9th April, 2019 of the Coordinate Bench, and as a consequence thereto, the proceedings of the Civil Appeal No. 7 of 2007, stood revived before the 1st Appellate Court. 12. After the revival of the proceedings of the Civil Appeal No. 7 of 2007, while the proceedings were being simultaneously being carried before the Appellate Court, the petitioner being aggrieved against the judgment rendered in the Appeal from Order dated 9th April, 2019, had preferred a SLP, being SLP No. 13844 of 2019, which was subsequently after the grant of leave by the Hon'ble Apex Court, was numbered as Civil Appeal No. 7261 of 2019, before the Hon'ble Apex Court. It remained pending, before it thereafter. 13. It remained pending, before it thereafter. 13. The order of 9th April, 2019, as passed by the Coordinate Bench of this Court in the Appeal from Order, was ultimately placed on record before the Appellate Court, by virtue of an application dated 10th May, 2019. The Appellate Court on receipt of the said information about setting aside of the order dated 17th August, 2010, dismissing the Appeal for want of prosecution, and since it was resulting into the revival of the proceedings of the Civil Appeal, as a consequence of the judgment dated 9th April, 2019, the Appellate Court had issued notices to the counsel of the respondents' appellant therein the Civil Appeal, for putting in appearance on the date fixed by it i.e. 1st June, 2019. 14. On the date fixed by the Appellate Court, i.e. 1st June, 2019, the record reveals that the plaintiff/respondent, yet again had not put in appearance before the 1st Appellate Court, and consequently, the learned Appellate Court by an order of 1st June, 2019, directed the Appeal to be posted for hearing on 18th June, 2019. 15. Once again, on the next date fixed by the Appellate Court, i.e. 18th June, 2019, the plaintiff/respondent did not appear, and the Appellate Court, thereafter had issued afresh notices to the plaintiff/respondent, informing about the revival of the proceedings of the Civil Appeal No. 7 of 2007, and issued fresh notices, thereby giving an intimation to the effect that the next date fixed, for the Appeal to be heard was 26th June, 2019. 16. On 26th June, 2019, and that too for the third time, once again, the plaintiff/respondent had not appeared; but the Appellate Court yet again attempted to serve notices to the plaintiff/respondent by fixing 6th July, 2019. 16. On 26th June, 2019, and that too for the third time, once again, the plaintiff/respondent had not appeared; but the Appellate Court yet again attempted to serve notices to the plaintiff/respondent by fixing 6th July, 2019. But, the records rather reflect that despite of three effective steps for notices issued by the learned Appellate Court, on revival of the proceedings of the Civil Appeal No. 7 of 2007, in pursuance to the judgment rendered in Appeal from Order, the plaintiff/respondent for the reasons best known to him, had not appeared, and consequent thereto, the learned Appellate Court, after recording the statement of the process server, which finds place on record as paper No. 6-Ga/2, as well as after taking the report of the service, i.e. paper No. 4Ga/2 and 4Ga/6, into consideration had proceeded to dismiss the Civil Appeal No. 7 of 2007, by an order of 16th July, 2019. 17. The plaintiff/respondent once again, had preferred a Misc. Civil Appeal, under Order 43 Rule 1 (t), seeking recall of the order dated 16th July, 2019, which was filed along with the delay condonation application, which was filed on 28.08.2019. 18. While, on the other hand, the simultaneous proceedings, as against the order / judgment in Appeal from Order, was being proceeded, before the Hon'ble Apex Court, arising out of the judgment of 9th April, 2019, as rendered by this Court in Appeal from Order No. 171 of 2017, when it came up for consideration before the Hon'ble Apex Court, and when the Hon'ble Apex Court, was made conscious of the fact and diligence with which, the plaintiff/respondent had participated in the proceedings of the Civil Appeal No. 7 of 2007 and the Hon'ble Apex Court passed an order /judgment, whereby, after observing about the conduct of the plaintiff/respondent, had decided the Civil Appeal by the judgment dated 13th September, 2019, which carried the following directions : "It must be mentioned here that in terms of the order passed by the High Court, the appeal before the first appellate court stood restored. It is also a matter of fact that though the High Court had directed disposal of the pending appeal within six months, the respondent did not appear on first five dates and because of their non-appearance, the appeal now stands dismissed again for non-prosecution. It is also a matter of fact that though the High Court had directed disposal of the pending appeal within six months, the respondent did not appear on first five dates and because of their non-appearance, the appeal now stands dismissed again for non-prosecution. It also appears that an appropriate application for restoration has been filed which is presently pending consideration. Though the conduct of the respondents in pursuing the appellate remedy does not appear to be completely fair and proper, we do not wish to interfere in the matter except that in our view, ends of justice would be met if the respondents pay some costs to the appellant. We order accordingly and direct the respondents to make over a sum of Rs.one lakh by way of costs to the appellant within four weeks from today. In case the money is not made over as directed, the application for restoration which is presently pending shall stand dismissed without further reference to Court. Subject to the aforesaid modifications, this appeal stands disposed of." 19. The Hon'ble Apex Court intended to lay that though the past conduct of the plaintiff/respondent, with regards to the manner in which, he was dealing with the proceedings of the Court, was not very conducive for interference, but yet in order to get the lis decided on its own merit had observed that the Appeal would stand restored subject to the condition that the plaintiff/respondent deposits a cost of Rs.1 lac, which was directed to be, "made payable" to the appellant, i.e. petitioner, herein, within "four weeks from today" , meaning thereby, on a simplictor interpretation given to the said terms, which were used by the Hon'ble Apex Court by the judgment of 13th September, 2019, was that the period of four weeks for the remittance of the cost of Rs. 1 lac, was to be determined from the date of the judgment of the Hon'ble Apex Court dated 13th September, 2019, itself. The direction of depositing the cost given by the Hon'ble Apex Court, further observed that, if the cost is not made good by the plaintiff/respondent, herein, who is the appellant of Civil Appeal No. 7 of 2007, the Appeal, would stand dismissed "without further reference to the Court". 20. The direction of depositing the cost given by the Hon'ble Apex Court, further observed that, if the cost is not made good by the plaintiff/respondent, herein, who is the appellant of Civil Appeal No. 7 of 2007, the Appeal, would stand dismissed "without further reference to the Court". 20. The actual controversy, which is now being agitated by the parties to the present Writ Petition would be as to in what manner : i. The period of four weeks, as directed, for the purposes of depositing the cost would be interpreted, and what would be the actual cut off to be applied for determining the date of deposit, as directed by the judgment dated 13.09.2019, ii. As to when the Hon'ble Apex Court has observed that the Civil Appeal would stand dismissed without reference to the Court, as to whether, the Appellate Court could still exercise its power to consider application under Order 41 Rule 19, if the deposit is made beyond the terms and period, as directed by the Hon'ble Apex Court by reviving the proceedings of the Civil Appeal in pursuance to the impugned order, in question. 21. The petitioner's case is; that in its strict interpretation of the judgment dated 13th September, 2019, it would be that once the Hon'ble Apex Court had directed to deposit the cost of Rs.1 lac within four weeks from today, it should be strictly construed to be expiring on 10th November, 2019. He submits that as soon as the said amount is not remitted to the petitioner, within the aforesaid time period, there was no further order which was required or which could have been passed on the Appeal; because as a consequence of the inference of the Hon'ble Apex Court judgment, the Civil Appeal already stood dismissed. He further submits that as per the compliance, which was directed by the Hon'ble Apex Court, could not have been permitted to be interpreted by the learned Appellate Court, if the remittance of the amount is not established to be proved to have been made to the petitioner, before the expiry of the aforesaid period, as fixed by the judgment of the Hon'ble Apex Court dated 13.09.2019. 22. 22. He submits that the Appellate Court's judgment could not be sustained, because it was no more falling within the domain of consideration of the Appellate Court, to have interpreted the implications of Hon'ble Apex Court judgment dated 13th September, 2019, and hence, he submits that the Appellate Court had wrongly proceeded to pass the impugned order dated 19th November, 2019, of restoring the Civil Appeal, by allowing the application under Order 41 Rule 19 of the C.P.C., which otherwise as per the directions stood dismissed without reference to the Court. 23. Being aggrieved against the said impugned order dated 19th November, 2019, the petitioner had preferred a Review Petition, before the Court of 2nd Additional District Judge, which was also dismissed by an order dated 22nd February, 2020, hence, the present Writ Petition. 24. On the contrary, the stand taken by the respondent in the counter affidavit is that the judgment of the Hon'ble Apex Court dated 13th September, 2019, stood complied with for the reason being that in compliance thereto, they had deposited the sum of Rs. 1 lac, in the bank and had already procured a bank draft, drawn in favour of the defendant/petitioner, and hence, they intended to contend, that as soon as the draft is prepared by the Bank on 10th November, 2019, it would amount to that the actual disbursement of amount as directed by the Hon'ble Apex Court, has already been made to the petitioner, herein, and hence, the judgment of the Hon'ble Apex Court stood complied in its strict terms and conditions. Hence, the order passed by the Court below was absolutely sustainable. 25. He further submits that under the banking laws, a money deposited by way of a draft is not a deferred payment but rather an actual payment made, because as soon as the money is parted by the depositor in favour of the persons, in whose favour the negotiable instruments by way of a draft is executed, it would amount to that the money has been parted of by the person concerned, and would be deemed to be paid. 26. 26. In the rejoinder affidavit filed by the petitioner, in reply to the argument of the learned counsel for the respondents, the petitioner submitted that even if it presumed that the money was parted by the respondents by depositing it in the Bank on 10th November, 2019, and getting the draft prepared, it will still not fall to be a compliance in the light of the judgment of the Hon'ble Apex Court dated 13th September, 2019, for the reason being that in its strict terms, the payment of the cost of Rs.1,00,000/- was to be made to the petitioner in person. Depositing in the bank by way of a bank draft, will not amount to be an actual compliance, because even if the money was parted by the respondent, it was still not actually remitted to the petitioner, within the time frame provided by the Hon'ble Apex Court. 27. He further submits that the alleged compliance made by the respondent by filing an application along with the draft dated 10th November, 2019, before the learned Appellate Court by virtue of an application dated 11th October, 2019, cannot be said to be an actual compliance in the light of the direction issued by the Hon'ble Apex Court for the reason being that the application thus submitted by the respondent before the Appellate Court on 11.10.2019, it only accompanied with it a zerox copy of the draft and the original was even then not placed before it nor handed over the petitioner, and hence, he submits that depositing of the zerox copy of the draft on 11.10.2019, would not amount to be an actual payment made to the petitioner and hence, the Appellate Court has exceeded in the exercise of its jurisdiction by interpreting the judgment of the Hon'ble Apex Court dated 13th September, 2019, because, if at all there was a possibility of its interpretation, it could have been done by the respondent by filing an appropriate application before the Hon'ble Apex Court for getting the said judgment modified, in order to prove the satisfaction of compliance by the respondent. 28. Based on the aforesaid factual premise, and the argument as has been extended by the learned counsel for the parties. The entire controversy, in case, it is to be interpreted, it has to be interpreted by virtue of the interpretation of the Hon'ble Apex Court judgement only. 28. Based on the aforesaid factual premise, and the argument as has been extended by the learned counsel for the parties. The entire controversy, in case, it is to be interpreted, it has to be interpreted by virtue of the interpretation of the Hon'ble Apex Court judgement only. After hearing the parties at length, I am of the view that the Hon'ble Apex Court, in its very conscious and specific terms, where it uses the word the "respondents to make over a sum of Rs.1 lac." It means and clearly intended that the Hon'ble Apex Court, in its clear terms intended to that there has had to be an exact and actual effective disbursement of money to be received by the petitioner, by way of a cost imposed by the Hon'ble Apex Court for the purposes of restoration of the Civil Appeal to be considered on merits. The manner, in which, the deposits have been made by submission of draft on 10th November, 2019, and that too by placing it before the Appellate Court by way of an application dated 11th October, 2019, which obviously happens to be after the expiry of the period provided by the Hon'ble Apex Court, and that too particularly when the original draft by time also i.e. till 11.10.2019 was not produced nor was handed over to the petitioner, I am of the view that it would amount to that actual compliance of the judgment dated 13.09.2019 of the Hon'ble Apex Court, was not made by the respondent, and hence, the consequences as directed by the Hon'ble Apex Court, by directing the dismissal of the Civil Appeal No. 7 of 2007 without reference to Court, would automatically follow and it was no more open or it was even to be considered by the Appellate Court, as it was directed to be dismissed without even reference to the Court. 29. This Court is also considering the controversy from yet another aspect, which the counsel for the respondent had pleaded, that after the preparation of the draft, they made an effort to hand over the draft to the petitioner by visiting to the residential address of the petitioner, but they submitted that she was not found there. 29. This Court is also considering the controversy from yet another aspect, which the counsel for the respondent had pleaded, that after the preparation of the draft, they made an effort to hand over the draft to the petitioner by visiting to the residential address of the petitioner, but they submitted that she was not found there. This plea taken by the respondent of non availability of the petitioner at the given address cannot be accepted for the reasons being that it is the same address, where she resides, and which was depicted in the proceedings before the Hon'ble Apex Court, and it was the same address on which the correspondence was made for the purposes of documentation from the Hon'ble Apex Court, and hence, the plea taken by the respondent, that the petitioner was not available on the address, does not repose confidence to the Court about the non availability of the petitioner at the residence, in question, because there is no other alternative plea raised by the respondents in their counter affidavit that they had made any other efforts through any other mode, to look for the petitioner. If their theory of her non availability on the residence is said to be accepted, then there was no bar for the respondent to have the draft in original filed before the Appellate Court, within the time provided, hence the plea of non availability of petitioner, at the address given is not accepted by this Court. 30. The argument extended by the counsel for the respondents that the actual disbursement of money by way of cost was complied with by the respondent by getting the draft prepared on 10th October, 2019 and he had actually parted of the money, parting of money, if it is read in correlation to the direction given by the Hon'ble Apex Court, it was not only parting of a money, which was to be made by way of deposit in the Bank, but rather it was to be actually handed over and remitted to the petitioner within time period specified and handing over aspect is not established by the pleadings in the Writ Petition. Consequently, I am of the view that the argument extended that it was not a deferment of payment by depositing the money by way of a draft is not acceptable by this Court, and admittedly, there was no actual payment made within the time provided by the Hon'ble Apex Court. 31. There is yet another reason for it. Because on the date when the petitioner filed an application before the Appellate Court i.e. on 11th October, 2019, showing his bona fide of having deposited the cost as imposed by Hon'ble Apex Court, by way of depositing in the bank on 10th October, 2019, there is no logic and plausible reason as to why the original draft was not prepared and produced before the Court even on 11th October, 2019, when the application was filed. Meaning thereby, according to the respondents' own case, even when their application was filed before the Appellate Court, they had not annexed the original draft and, hence, I am of the view that until and unless even if the draft was prepared on 10th October, 2019, if it is not produced before the Court on 11th October, 2019, it would be deemed that it was not an actual and effective compliance within the time period as specified by the Hon'ble Apex Court, and hence, the Appeal ought to have been dismissed without even dealing with the Application under Order 41 Rule 19, which has not been done by the Appellate Court by the impugned order, because the Hon'ble Apex Court directed dismissal of Appeal, in an event of non compliance, even without reference to the Court. 32. Consequently, the impugned appellate order is not sustainable, since it runs contrary to the judgment of Hon'ble Apex Court dated 13th September, 2019. Hence, the same is quashed, and as a consequence thereto, the application under Order 41 Rule 19 of the CPC preferred by the respondent would stand rejected. 33. However, there would be no order as to costs.