Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1972 (ALL)

Santosh Kumar v. Jagat Narayan

2022-12-14

SARAL SRIVASTAVA

body2022
JUDGMENT : Saral Srivastava, J. 1. Heard learned counsel for the appellants and learned counsel for the respondents. 2. The appellants have preferred the present appeal challenging the order dated 15.12.2018 passed by the Additional District Judge/F.T.C., Court No.2, Auraiya, whereby he has dismissed the application under Order 41 Rule 17 of C.P.C. of the plaintiffs/appellants 3. The facts, in brief, are that one Ram Swaroop Shukla had instituted an original suit no.17 of 2004 praying for a decree of permanent injunction restraining the defendants/respondents from interfering in the peaceful possession of the plaintiffs/appellants. It appears that during the pendency of the suit, Ram Swaroop Shukla had died and the plaintiffs/appellants have been substituted as his heirs. 4. As per the plaint case, one Ram Swaroop Shukla purchased a plot situated at Mohalla Hariganj, town and area Achhalda, Pargana Vidhuna, District Auraiya which has been described at the foot of the plaint (hereinafter referred to as 'suit property') from one Heera Lal S/o Bhikari Lal on 25.12.1948 for a sale consideration of Rs.300/- and he got possession over the suit property. Thereafter, he applied for the sanction of the map to the Nagar Panchayat Acchalda which was sanctioned by the Nagar Panchayat as per law. 5. Subsequently, the plaintiffs/appellants constructed a house for his residence and his name was recorded in Nagar Panchayat. The plaintiffs/appellants started depositing house tax and other taxes. Further case of the plaintiffs/appellants was that the defendant/respondent no.1 was his brother and required a house in Acchalda for residence. The plaintiffs/appellants permitted the defendant/respondent no.1 to stay in the suit property. It was the further case of the plaintiffs/appellants that the plaintiffs/appellants used to give money to his brother defendant/respondent no.1 to deposit taxes with the Nagar Panchayat, but his brother in collusion with the clerk of Nagar Panchayat got his name recorded in the Nagar Panchayat. When the plaintiffs/appellants came to know about the illegal act of defendant/respondent no.1, he submitted an application in Nagar Panchayat on 22.02.2000 for removal of the name of the defendant/respondent no.1 from the record and restore his name. As per the plaint case, the plaintiffs/appellants are in possession of the suit property and the defendants/respondents based on the forged sale deed were interfering with the peaceful possession of plaintiffs/appellants which gave rise to the cause of action to the plaintiffs/appellants to institute suit. 6. As per the plaint case, the plaintiffs/appellants are in possession of the suit property and the defendants/respondents based on the forged sale deed were interfering with the peaceful possession of plaintiffs/appellants which gave rise to the cause of action to the plaintiffs/appellants to institute suit. 6. The said suit was contested by the defendants/respondents denying the allegations of the plaint. The said suit of the plaintiffs/appellants was dismissed by the trial court vide judgement and order dated 01.10.2013. 7. Feeling aggrieved by the judgement and order dated 01.10.2013 passed by the trial court, the plaintiffs/appellants preferred Civil Appeal before the District Judge, Auraiya which was registered as Civil Appeal No.19 of 2013. 8. The aforesaid appeal was dismissed in default by the appellate court vide order dated 24.11.2017. The plaintiffs/appellants filed an application on 12.12.2017 under Order 41 Rule 17 of C.P.C. (Santosh Kumar and Others Vs. Jagat Narayan) for setting aside the order dated 24.11.2017 in Civil Appeal No.19 of 2013 and re-admit the appeal and hear the appeal on merit. 9. The plaintiffs/appellants stated in the said application that Santosh Kumar was the Pairokar of the case. He met with an accident in July and suffered grievous injury in the accident due to which he underwent surgery. It was further stated that as his operation was not successful, therefore, he was again operated due to which he was unable to move, and for this reason, he could not attend the case. It was further stated that when he came to the civil court on 08.12.2017, he enquired about the status of the appeal and came to know that the appeal has been dismissed in default on 24.11.2017, and immediately, he filed the present application for restoring the case. 10. The defendant/respondent no.1 filed an objection to the application of plaintiffs/appellants under Order 41 Rule 17 of C.P.C. denying the averments made in the said application. It was further stated that there are six plaintiffs/appellants in the appeal and any of them could attend the case on the date fixed i.e. 24.11.2017. It was further stated that Santosh Kumar was fit and fine on the date fixed. The defendants/respondents further stated that the medical certificate filed by Santosh Kumar was not genuine. It was further stated that there are six plaintiffs/appellants in the appeal and any of them could attend the case on the date fixed i.e. 24.11.2017. It was further stated that Santosh Kumar was fit and fine on the date fixed. The defendants/respondents further stated that the medical certificate filed by Santosh Kumar was not genuine. The averments made in the application are vague inasmuch as Santosh Kumar has not stated in the application the date on which he had been operated upon second time. Consequently, it was prayed that the application under Order 41 Rule 17 of C.P.C. may be dismissed. 11. The appellate court vide order dated 15.12.2018 rejected the application under Order 41 Rule 17 of C.P.C. on the ground that several dates were fixed in the appeal which was in the knowledge of the counsel of the plaintiffs/appellants as well as plaintiffs/appellants. The appellate court recorded that the counsel of the plaintiffs/appellants had also knowledge about the date fixed i.e. 24.11.2017 in the appeal, and if for any reason, the plaintiffs/appellants were absent, it was the duty of the counsel to attend the court and argue the appeal. The appellate court recorded that the order sheet reveals that on earlier dates also, neither the plaintiffs/appellants nor their counsel appeared and the case was adjourned in their absence. 12. The appellate court further found that as per the averments in the application under Order 41 Rule 17 of C.P.C., Santosh Kumar met with an accident in July 2017 whereas the prescriptions relating to treatment filed on record was dated 14.06.2017, and the application of Santosh Kumar was silent as to the date on which he had been operated second time. The appellate court further found that the non-appearance of the appellant was not bone fide and genuine, consequently, it dismissed the application under Order 41 Rule 17 of C.P.C. 13. Challenging the order, learned counsel for the plaintiffs/appellants has contended that the non-appearance of the plaintiffs/appellants on the date fixed in the civil appeal was bona fide and genuine, and the plaintiffs/appellants have demonstrated that they were prevented by sufficient cause from appearing on the date fixed in the appeal, therefore, the appellate court should have allowed the application of plaintiffs/appellants under Order 41 Rule 17 of C.P.C. and restored the appeal. 14. 14. It is submitted that Santosh Kumar, who was doing the parivi in the case met with an accident and was operated upon due to which he was incapable to move, therefore, in such circumstances, it was established that non-appearance of plaintiffs/appellants on the date fixed in the appeal was bona fide, therefore, the appellate court should have taken the sympathetic and liberal view to do substantial justice in deciding the application instead of taking a pedantic and over technical view in the matter. Thus, it is contended that the appellate court has committed manifest illegality in rejecting the application which needs to be corrected by this Court in appeal. In support of the said submission, learned counsel for the plaintiffs/appellants has placed reliance upon the judgement of this Court in the case of Atar Singh and Others Vs. Lotan Singh and Others AIR 1992 All. 59 . 15. Per contra, learned counsel for the respondents has contended that there is no quarrel with the legal proposition advanced by the learned counsel for the plaintiffs/appellants that the court in deciding the application under Order 41 Rule 17 of C.P.C. read with Rule 19 of C.P.C. should take a liberal view and technicalities should not come in the way of court to do substantial justice. He submits that in the instant case, the said principle is not attracted inasmuch as it is evident from the record that a false case in the application under Order 41 Rule 17 had been set up by the plaintiffs/appellants to get the order dated 24.11.2017 set aside. 16. He submits that in the instant case, the said principle is not attracted inasmuch as it is evident from the record that a false case in the application under Order 41 Rule 17 had been set up by the plaintiffs/appellants to get the order dated 24.11.2017 set aside. 16. He further submits that in filing the application under 41 Rule 17 of C.P.C., the plaintiffs/appellants should come with clean hand and with true facts whereas in the instant case, grounds stated in the application that Santosh Kumar had suffered injuries in an accident in July 2017 and was operated upon, and since his operation was not successful, therefore, he underwent surgery second time is a false story for two reasons; the application is silent as to the date on which Santosh Kumar was operated upon second time; secondly, all the prescriptions about the treatment of Santosh Kumar filed on record were dated 14.06.2017 and no prescription in respect to the treatment of Santosh Kumar of the month of July was filed nor any document was brought on record indicating that Santosh Kumar underwent surgery second time in the month of July. 17. He further submits that in paragraph 7 of the counter affidavit, it has been specifically averred that the story stated in the application under Order 41 Rule 17 of C.P.C. is false inasmuch as Santosh Kumar had filed an affidavit sworn on 27.10.2017 in the original suit no.189 of 2012, and if the averments made in the application of the plaintiffs/appellants was taken to be true, then how he could file an affidavit dated 27.10.2017 in Original Suit No.189 of 2012. He further stated that the copy of the affidavit of Santosh Kumar dated 27.10.2017 in Original Suit No.189 of 2012 is enclosed as annexure 4 to the counter affidavit. Thus, it is submitted that as the appellants had not approached the court with clean hand and the averments made in the application under Order 41 Rule 17 of C.P.C. are false and had been made only to get the order dated 24.11.2017 set aside, the plaintiffs/appellants have failed to demonstrate that the plaintiffs/appellants were prevented by sufficient cause from appearing on the date fixed in the appeal. Thus, the appellate court has rightly dismissed the appeal. 18. I have considered the rival submissions of the parties and perused the record. 19. Thus, the appellate court has rightly dismissed the appeal. 18. I have considered the rival submissions of the parties and perused the record. 19. The facts as emanate from the record reveal that the suit had been instituted by one Ram Swaroop Shukla against defendants/respondents praying for a decree of a permanent injunction. The suit was dismissed on 01.10.2013. During the pendency of the suit, Ram Swaroop Shukla died and plaintiffs/appellants have been substituted as his heirs. 20. The plaintiffs/appellants preferred Civil Appeal No.19 of 2013 against the order dated 01.10.2013 dismissing the suit. The appeal was dismissed in default on 24.11.2017 for want of the appearance of plaintiffs/appellants. The plaintiffs/appellants filed an application under Order 41 Rule 17 of C.P.C. stating therein that Santosh Kumar plaintiff/appellant no.1 was doing the pairvi in the case and he could not appear on the date fixed i.e. 24.11.2017 as he had met with an accident in July 2017, and in the said accident, he suffered grievous injuries and he was operated, but since his operation was not successful, therefore, he was again operated and as he was unable to move, therefore, he could not attend the court on the date fixed which led the court to pass an order to dismiss the appeal in default. 21. The question as to whether the reasons given in the application under Order 41 Rule 17 of C.P.C. of the plaintiffs/appellants for non-appearance can be said to be the sufficient cause that prevented the plaintiffs/appellants from appearing on the date fixed in the appeal invites the attention of this Court in the instant appeal. 22. Prima facie reading of the application depicts a picture that the reasons stated in the application under Order 41 Rule 17 of C.P.C. would fall in the ambit of 'sufficient cause' which prevented plaintiffs/appellants from appearing on the date fixed in the case, but the record speaks otherwise. 23. The plaintiff/appellant no.1 has stated in the application that he had suffered grievous injuries in the accident in the month of July 2017 and he was operated upon, but as his operation was not successful, therefore, he again underwent surgery. There is no averment in the application as to the date on which, he was operated upon second time. 23. The plaintiff/appellant no.1 has stated in the application that he had suffered grievous injuries in the accident in the month of July 2017 and he was operated upon, but as his operation was not successful, therefore, he again underwent surgery. There is no averment in the application as to the date on which, he was operated upon second time. Further, the prescriptions filed regarding the treatment of Santosh Kumar were dated 14.06.2017 which were before the month of July 2017, and no prescription of the month of July 2017 was filed on record indicating that he was suffering from injury and was operated upon second time in the month of July. 24. The appellate court while dismissing the application has noted the said fact. 25. In the present appeal, the prescriptions relating to the treatment of Santosh Kumar had been appended from pages 120 to 123 by the plaintiffs/appellants which reveals that all prescriptions are before July 2017. 26. The medical certificate appended on page no.120 to 123 dated 14.06.2017 issued by Dr. D.K. Dubey reveal that Santosh Kumar was advised for three and half months bed rest. The record reveals that the said certificate was not proved. Even otherwise, if the said certificate is taken to be true and correct, Santosh Kumar became fit after three and half months which is the last week of September 2017. It is further pertinent to note that the defendants/respondents had filed an affidavit of Santosh Kumar dated 27.10.2017 in Original Suit No.189 of 2012 which indicates that Santosh Kumar was hale and hearty in October 2017. Thus, the averments made in the application that Santosh Kumar was not fit due to injuries suffered in the accident on the date fixed in the appeal are false and incorrect. 27. Learned counsel for the plaintiffs/appellants has invited the attention of the Court to paragraph 7 of his reply to the counter affidavit of the defendant/respondent nos.2 to 5 wherein it is stated that Santosh Kumar did not appear on the date fixed i.e. 27.10.2017 in the Original Suit No.189 of 2012. He further placed reliance upon paragraph 8 of the affidavit wherein it has been stated that he (Santosh Kumar) was not aware of the affidavit dated 27.10.2017, whereas, on the other hand, he stated that it appears that it was sworn by somewhere else. He further placed reliance upon paragraph 8 of the affidavit wherein it has been stated that he (Santosh Kumar) was not aware of the affidavit dated 27.10.2017, whereas, on the other hand, he stated that it appears that it was sworn by somewhere else. It is pertinent to note that the plaintiffs/appellants have not denied categorically that the affidavit dated 27.10.2017 was not sworn by Santosh Kumar in their reply. Paragraph 8 of the reply to the affidavit reads as under:- "8. That the appellant no.1 is not aware about the affidavit dated 27.10.2017 but it appears as sweared somewhere else and the respondents is not giving the correct facts." 28. The defendants/respondents have enclosed the order sheet of Original Suit No.189 of 2012 instituted by plaintiff/appellant no.1 Santosh Kumar, and the orders dated 25.10.2017, 15.11.2017, and 28.11.2017 reveals that Santosh Kumar was present in the court. Thus, it is evident from the record that a false story has been set up by the plaintiffs/appellants in the application under Order 41 Rule 17 of C.P.C. for setting aside the order dated 24.11.2017. 29. This Court is conscious of the fact that it is settled in law that the words "was prevented by any sufficient cause from appearing" in Order 41 Rule 17 of C.P.C. must be liberally construed to enable the court to do complete justice between the parties. This Court is also aware of its prime duty to do substantial justice and the technicalities should not come in the way of the court in disseminating substantial justice. If in a given case, 'sufficient cause' is made out for the non-appearance of plaintiffs/appellants, the court should take a liberal view and recall the order dismissing the appeal in default. In doing so, the courts have wide discretion in determining the 'sufficient cause' keeping in view the peculiar facts and circumstances. 30. It is also the well-established principle of law that in a case where a party approaches the court immediately and within the statutory time specified for filing the application, the discretion is normally exercised in his favour provided the absence was not mala fide or intentional as the absence of a party in case otherwise shall be compensated by heavy cost and a lis be decided on merit. 31. 31. This Court is conscious of the law on the interpretation of the word "was prevented by any sufficient cause from appearing" but it is also settled in law that where a party does not approach the court with the clean hand and with true facts and files an application before the court to get the order of dismissal in the default set aside on a ground which was not made out from the record, and the ground has been set up with an intention to befool or defraud the court to get the order of dismissal of the appeal in the default set aside, the court should not come in aid to such a party to allow him to reap the fruits of false and frivolous explanation to get the order of dismissal of the appeal in default set aside. The present case is one such case since in the said case, the plaintiffs/appellants had approached the court under Order 41 Rule 17 of C.P.C. on the ground which is false on the face of the record. 32. In such view of the fact, this Court does not find any illegality in the order passed by the court below in rejecting the application of the plaintiffs/appellants under Order 41 Rule 17 of C.P.C. 33. So far as the judgement of this Court in Atar Singh (supra) relied upon by the learned counsel for the plaintiffs/appellants is concerned, the said judgement is not applicable in the facts of the present case inasmuch as the plaintiffs/appellants had not approached the court with clean hand in filing the application under Order 41 Rule 17 of C.P.C. 34. For the reasons given above, the appeal lacks merit and is hereby dismissed with no order as to costs.