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2021 DIGILAW 169 (UTT)

Fariyad v. Thakur Mandir Raghunath Ji

2021-03-16

SHARAD KUMAR SHARMA

body2021
JUDGMENT Sharad Kumar Sharma, J. - The petitioner is a defendant in Civil Suit No. 56 of 2001, Thakur Mandir Raghunath Ji Maharaj Vs. Fariyad and others. The said Suit was instituted by the plaintiff /respondents on 26th March, 2001, whereby, they have prayed for the grant of decree of cancellation of sale deed dated 13th July, 1965. 2. In the said Suit, the notices were said, to have been issued and, as per the ordersheet, the excerpts of which, have been placed on record by the petitioner, the learned Trial Court, after recording its satisfaction of service, though which is a fact, disputed by the defendant/petitioner, herein, had passed an order directing to proceed ex parte, as against the defendant, vide its order dated 29th October, 2001. Ultimately, the Suit proceeded ex parte, and the learned Trial Court vide its judgment dated 11th September, 2002, had decreed the Suit. 3. The contention of the learned counsel for the petitioner is that after the decree, which has been rendered on 11th September, 2002, the plaintiff/respondents, have deliberately and with malicious intention had kept silent for number of years altogether, before making any efforts to get themselves, recorded in the record of rights under the strength of the decree of 11th September, 2002. 4. His argument is that the knowledge though was vaguely communicated to him by the publication, which was made in the newspapers on 15th January, 2009, and his contention is that the publication, thus made by the Executive Officer of the Nagar Palika Parishad, Jaspur, in the newspaper, had not given the details of the case in pursuance to which, the Nagar Palika had intended to carry on the mutation proceedings, and it only vaguely refers to a judgment which is said to have been passed by the Court below. The petitioner's contention is that in the absence of there being details of the case provided, in which, the order has been passed, the compliance of which, was solicited by the publication dated 15th January, 2009, since was not projected in the publication, he was not aware, as to which decree had been rendered against him. The petitioner's contention is that in the absence of there being details of the case provided, in which, the order has been passed, the compliance of which, was solicited by the publication dated 15th January, 2009, since was not projected in the publication, he was not aware, as to which decree had been rendered against him. But this Court, simultaneously, could not be oblivion of the fact that after getting the knowledge of the publication made on 15th January, 2009, which is a fact admitted, the defendant/petitioner judgment debtor had himself filed an objection before the Municipality on 24th January, 2009. Rationally, if the knowledge to the ex parte judgment and decree of 29th October, 2001, could at all be attributed to the petitioner, at least it could be attributed to the petitioner, as soon as he institutes an objection before the Municipal Board on 24th January, 2009. 5. Later on, the petitioner is shown to have filed an application, invoking the provisions contained under Order 9 Rule 13 of the CPC, by filing the same before the Court of Civil Judge (Junior Division), Kashipur, District Udham Singh Nagar, on 5th March, 2012, seeking a prayer to set aside the ex parte judgment and decree of 11th September, 2002, as was rendered in Suit No. 56 of 2001, on the pretext that the knowledge of the judgment was rendered to him by virtue of the communication which was made by the Municipality, only on 23rd February, 2012, and hence, it was that source of knowledge, which was taken as to be the basis and the foundation for filing of an application under Order 9 Rule 13 of the CPC, on 5th March, 2012. 6. Almost an identical ground as has been agitated by the petitioner in his application under Order 9 Rule 13 of the CPC, an identical plea was raised by him in his Delay Condonation Application, which was filed in support thereto, yet again, seeking condonation of delay on the basis of the source of knowledge, which according to his pleadings is allegedly attributed to him by the communication of the Municipality dated 23rd February, 2012. 7. 7. The said application, as was preferred by the petitioner, along with the Delay Condonation Application, under Order 9 Rule 13 of the CPC, was opposed by the plaintiff/respondents, herein, by filing an objection, paper No. 16Ga on 23rd April, 2012, and consequently, by the impugned orders, which are under challenge before this Court, the learned Trial Court vide its order dated 8th October, 2012, as passed in Civil Misc. Case No. 3 of 2012, Fariyad Vs. Thakur Mandir Raghunath Ji and others, had declined to accept the tenacity of the argument for seeking condonation of delay, on the basis of the source of knowledge, which was already attributed by the petitioner, in his application under Section 5 of the Limitation Act, to be w.e.f. 23rd February, 2012. 8. This order of rejection of the Delay Condonation Application, was challenged by the petitioner, in a Civil Revision No. 60 of 2013, Fariyad VS. Thakur Mandir Raghunath Ji and others, and the Revisional Court, too had agreed with the fact that the reasonings and findings which had been recorded by the learned Trial Court for rejecting the application for condonation of delay, almost on an identical ground and reason. Hence, the Writ Petition. 9. Heard learned counsel for the parties. 10. The sole ground, which was being argued and agitated by the learned counsel for the petitioner, was that the application filed by him under Order 9 Rule 13 of the CPC; along with the Delay Condonation Application, ought to have been treated to be filed within time for the reason being that the exact knowledge of passing of the judgment and decree of 11th September, 2002, was brought to his knowledge by the communication of the Municipality, as referred in the pleadings, of his application under Order 9 Rule 13 of the C.P.C. i.e. 23rd February, 2012. 11. If the logic, which has been assigned by the learned Trial Court, in the impugned order is taken into consideration, admittedly, and as per record too, the objection to the publication was preferred by the petitioner on 24th January, 2009. 11. If the logic, which has been assigned by the learned Trial Court, in the impugned order is taken into consideration, admittedly, and as per record too, the objection to the publication was preferred by the petitioner on 24th January, 2009. There was nothing otherwise on record either before the learned Trial Court, Revisional Court or even before this Court, which was brought on record, at the behest of the petitioner to substantiate his reasonings as to why and for what reasons, he had not made any efforts after filing of the application under Section 5 of the Limitation Act, along with an application under Order 9 Rule 13 of the CPC, only on 5th March, 2012, though the knowledge for passing of the ex parte decree was attributed to him by his objection dated 4th January, 2009, which was filed by him only. 12. Hence, the contention that the petitioner could receive the knowledge of the judgment, only by the communication on 24th February, 2012, cannot be accepted by this Court until and unless the petitioner by virtue of the pleadings raised before the Courts below, explains the delay, which has chanced between 24th January, 2009 till 5th March, 2012, nor there is any pleading raised to the said effect, as to what effort he has made during this period to ensure about the judgment and decree, which was rendered against him and which has been put to execution, by way of the publication, which was made by the Municipality on 5th January, 2009. 13. 13. Hence, I am of the view that as far as the petitioner is concerned, his knowledge to the alleged ex parte judgment of 11th September, 2002, would be attributed to him from the date when atleast he prefers an objection to the publication on 24th January, 2009, and in the absence of there being any explanation for delay for 24th January, 2009, till 5th March, 2012, his rational that the reasons for filing of an application under Order 9 Rule 13 was on the basis of the communication of the Municipality of 23rd February, 2012, does not satisfy the consciousness of this Court for the reason being that there is no logic to be accepted as to how a judgement debtor, against whom, the decree has been put to execution by publication on 5th January, 2009, which has been objected by him, had sat over it for long and had waited for the communication of the Municipality, till 23rd February, 2012, to file an application under Order 9 Rule 13 of the CPC, only on 5th March, 2012. Atleast, this reflects that this period of delay from the date of filing of an objection, till the date of filing of the application under Order 9 Rule 13 of the CPC, is an unexplained delay, which cannot be considered. 14. Hence, even if, the reasoning which has been taken by the learned Trial Court, particularly, as it has been dealt with by considering the evidence and the document, which has been placed on record, it has rightly recorded the finding to the effect that the judgement, which has proceeded ex parte by the learned Trial Court, was after recording the satisfaction of service on the petitioner. 15. 15. After having considered the reasons given in the order of the learned Trial Court, which later on stood affirmed by the Revisional Court, rejecting the petitioner's Delay Condonation Application filed in support of Order 9 Rule 13 of the CPC, I do not find that there is any perversity in the impugned orders, which are under challenge before this Court, for the reasons being that a person who is not vigilant of his rights and who despite of having the knowledge of some proceedings have been taken against him ex parte, sits over it even after getting the knowledge of it, he has to blame himself for the delay and that the delay cannot be attributed to be on account of any action or inaction on the part of the Courts or even the Municipality, the communication of which, has been taken as to be basis for seeking condonation of delay. 16. There is yet another reason, also that no sane person, who is the judgement debtor, who has the knowledge of decree passed against him, who is the objector to the mutation, which was made by way of publication, would sit over to it, and will not make any efforts to look for the decree, which has been rendered against him and which has been put to execution, and since there was a lack of diligence on the part of petitioner, he has to blame himself for the delay, which has chanced in filing the application, which in all, if it is determined from the date of decree itself, falls to have been filed after more than 11 years of the date of decree and three years from the date, when the actual knowledge was attributed to the petitioner. 17. Hence, for the reasons aforesaid, I do not find any merit in the Writ Petition. Consequently, the judgments rendered by both the Courts below are hereby affirmed. The Writ Petition is dismissed. This judgement would be without prejudice to any other legal rights available to the petitioner.