IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
SA No 213 of 2007
1 Vinod Kumar Thawani
2 Sachchanand Thawani
...Petitioners
VERSUS
Firm Ganeshi Lal Gulab
Chand Partnership Firm
1 Shankarlal Agrawal
2 Kailash Prasad Agrawal
3 Gopal Prasad Agrawal
4 Sharda
5 Sita
...Respondents
! Shri Sanjay S Agrawal counsel for the appellants
^ Shri Rajeev Shrivastava counsel for respondents No 1 to 3
Honble Shri Dilip Raosaheb Deshmukh J
Dated: 26/11/2007
: Judgment
Second Appeal under Section 100 of the Code of
Civil Procedure, 1908
JUDGMENT
(Delivered on this 26th day of November, 2007)
In this appeal, the judgment and decree dated 11-
05-2007 passed by the Additional District Judge,
Janjgir in Civil Appeal No.126-A/2005 is under
challenge whereby the appeal against the ex parte
judgment and decree dated 10-05-1996 passed in Civil
Suit No.4-A/94 by the Civil Judge Class-I, Janjgir was
dismissed not only on merits but also on the ground of
limitation.
(2) Brief facts are that the respondents/plaintiffs
instituted Civil Suit No.4-A/94 for the eviction of the
appellants/defendants from the suit accommodation
situated in Sadar Bazar, Champa on grounds under
Section 12(1)(a) and (b) of the Chhattisgarh
Accommodation Control Act, 1961 (hereinafter referred
to as `the Act, 1961′). Despite service of summons of
the suit, the defendants remained absent on 04-05-1995
and were proceeded ex parte on 20-06-1995. The ex
parte judgment and decree was passed by the Civil Judge
Class-I, Janjgir on 10-05-1996. The
appellants/defendants filed an application under Order
9 Rule 13 of the Code of Civil Procedure, 1908
(hereinafter referred to as `the Code’) on 22-06-1998
before the trial Court on the ground that although
summons were duly served on the defendants for 4.5.1995
they did not appear in Court because their counsel had
informed them that the report of service of summons was
not received in Court on 4.5.1995 and thereafter no
notice was served on them for the date 28.6.1995 on
which date the Court proceeded ex parte on the basis of
the report of service of summons on the defendants for
4.5.1995. Thereafter, they did not appear in Court and
had knowledge of the ex parte judgment and decree on 14-
05-1998 when the Process Server served the warrant of
execution of the judgment and decree on them. The
learned Civil Judge Class-I, Janjgir rejected the said
application on 07-12-2002. The appellants/defendants
preferred Miscellaneous Appeal No.16/2002 before the
Additional District Judge, Janjgir, which was dismissed
on 29-01-2003. The appellants/defendants preferred
Civil Revision No.143/2003 in the High Court of
Chhattisgarh, which was withdrawn by the counsel for
the appellants/defendants on the ground that the same
was not maintainable in view of the proviso to Section
115 of the Code. The counsel for the applicants prayed
for liberty to file appropriate proceedings available
under law. The said liberty was granted by the High
Court. However, instead of preferring an appeal under
Section 96(2) of the Code, the appellants/defendants
preferred Writ Petition No.1027/2005, which was
dismissed on 08-12-2005. In this manner, it was only
after moving from pillar to post that the
appellants/defendants preferred First Appeal No.126-
A/2005 before the Additional District Judge, Janjgir on
14-12-2005 along with an application under Section 14
of the Limitation Act, 1963 (hereinafter referred to as
`the Act, 1963′) for condonation of delay in filing the
said appeal. Learned counsel for respondents No.1 to 3
submitted that in the said appeal, stay on execution of
the ex parte judgment and decree was granted by the
Additional District Judge, Janjgir, whereupon the
respondents/plaintiffs preferred Writ Petition
No.1646/2006 before the High Court of Chhattisgarh,
which was dismissed vide order dated 13-04-2006.
Against the said order, the respondents/plaintiffs
preferred S.L.P. (Civil) before the Apex Court. The
S.L.P. (Civil) preferred by the respondents/plaintiffs
against the order dated 13-04-2006 passed in Writ
Petition No.1646/2006 was disposed of on 16-04-2007
with a direction to the first appellate Court to decide
the application for condonation of delay as well as the
first appeal, which had been filed by the
appellants/defendants herein.
(3) By the impugned judgment and decree, the
Additional District Judge dismissed the civil appeal
not only on merits, but also on the ground that the
appeal was barred by limitation and sufficient cause
for condonation of delay was not shown. It was also
held that Section 14 of the Act, 1963 had no
application since the appellants/defendants were
prosecuting a legal remedy available to them in a Court
having jurisdiction. It further held that the
appellants/defendants were unable to show sufficient
cause for condonation of delay in filing First Appeal
No.126-A/2005.
(4) In this appeal, the following substantial question
of law arises for determination:
“Whether on the facts and circumstances
of the case, rejection of the
application for condonation of delay by
the lower appellate Court is contrary
to law?”
(5) Shri Sanjay S. Agrawal, learned counsel for the
appellants/defendants has argued that although the
application filed by the appellants/defendants before
the lower appellate Court was titled as under Section
14 of the Act, 1963, it was in sum and substance an
application under Section 5 of the Act, 1963. Learned
counsel for the appellants/defendants conceded that no
application under Section 14 of the Act, 1963 would lie
because the appellants/defendants were pursuing the
remedy under Order 9 Rule 13 of the Code in a Court
having jurisdiction. Reliance was placed on Wadhya Mal
vs. Prem Chand Jain and another, AIR 1982 SC 18 while
arguing that the appellants/defendants were misled in
not preferring the appeal simultaneously with the
application under Order 9 Rule 13 of the Code for
setting aside the ex parte judgment and decree. In the
abovementioned case, the Apex Court was considering a
matter in which an award was passed by the Motor
Accidents Claims Tribunal against the owner of the
truck involved in the accident, who had remained ex
parte. An application for setting aside the ex parte
award was dismissed and an appeal against the said
order was also dismissed as not maintainable.
Thereafter, the appellant preferred an appeal against
the award, which was obviously time barred and an
application for condonation of delay was rejected on
the ground that his moving from pillar to post would
not be a ground for condoning the delay. The Apex
Court in the above situation considered it appropriate
to give an opportunity to the appellant to get his
appeal admitted on merits because the award, which the
owner sought to challenge, was under challenge in two
separate appeals preferred by the insurance company and
the claimant. In this situation, the Apex Court
condoned the delay and directed that the appeal be
admitted to file and heard and be disposed of along
with the two appeals preferred by the insurance company
and the claimant.
(6) Reliance was also placed on Shyamal Kanti Danda
vs. Chunilal Choudhary, AIR 1984 SC 1732, in which
after passing of an ex parte decree, the application
under Order 9 Rule 13 of the Code came to be dismissed
as not maintainable and the appeal against the said
order also failed. The unsuccessful defendant moved an
application praying for condonation of delay of 386
days in preferring the appeal on the ground that he was
prosecuting under legal advice a remedy in another
Civil Court for setting aside the ex parte decree under
Order 9 Rule 13 of the Code, but as that Court was
unable to grant relief, the time spent bona fide in
prosecuting this remedy should be excluded in computing
the period of limitation. The learned first appellate
Court declined to condone the delay and dismissed the
appeal. After an unsuccessful revision in the High
Court, the defendant/petitioner approached the Apex
Court under Article 136 of the Constitution. The Apex
Court, in exercise of the powers under Article 136 of
the Constitution, directed the petitioner to deposit a
sum of Rs.27,000/- as use and occupation charges during
the period spent in the trial Court and to further
deposit such charges at the rate of Rs.225/- per month
from month to month before the 10th day of every
succeeding month commencing from July, 1994 till the
suit was finally disposed of by the trial Court. It
was ordered that on complying with the above
conditions, the application for condoning the delay in
preferring the appeal in the District Court shall stand
allowed and the appeal shall also stand admitted to
file and shall also be allowed thereby setting aside
the ex parte judgment and decree passed by the learned
Munsiff disposing of the suit on merits. It was
further directed that the defendant/petitioner shall be
permitted to participate in the proceedings before the
learned Munsiff and the case shall proceed form the
stage where it was disposed of in the absence of the
petitioner. Certain other directions were also given.
Lastly, reliance was placed on Balakrishnan vs.
Ayyaswami, AIR 1983 Madras 17. In this case, there was
delay in filing the second appeal against an ex parte
decree passed in first appeal because the
appellant/defendant was unsuccessfully prosecuting
proceedings under Order 41 Rule 21 of the Code for
setting aside the ex parte decree. It was held that
there was sufficient cause for condonation of delay in
filing the second appeal.
(7) On the other hand, Shri Rajeev Shrivastava,
learned counsel for respondents No.1 to 3/plaintiffs
argued in support of the impugned judgment and decree
and submitted that it was open to the
appellants/defendants to prefer the first appeal
simultaneously with the application under Order 9 Rule
13 of the Code within the period of limitation. The
conduct of the appellants/defendants in not filing an
appeal till he pursued his remedy by filing a
miscellaneous appeal, civil revision and writ petition
clearly shows that the appellants/defendants had no
bona fide intention of filing an appeal and were, thus,
not prevented by any sufficient cause from preferring
the appeal within the prescribed period of limitation.
Reliance was placed on Archana Kumar and another vs.
Purendu Prakash Mukherjee and another, 2000 (2) MPLJ
491, a decision of Full Bench of the High Court of
Madhya Pradesh, in which it was held that even after
dismissal of the application under Order 9 Rule 13 of
the Code, a regular first appeal under Section 96(2) of
the Code is maintainable and it is open to the
defendant to prefer an application under Order 9 Rule
13 of the Code and a regular appeal simultaneously and
to pray for stay of further proceedings in appeal till
the application under Order 9 Rule 13 of the Code is
decided. It was also argued that the application under
Section 14 of the Act, 1963 was not maintainable
because the appellants/defendants were prosecuting a
remedy available to them under Order 9 Rule 13 of the
Code before a Court having jurisdiction. It was also
argued that in the application under Section 14 of the
Act, 1963, the appellants/defendants had mentioned that
pursuant to a direction made in Writ Petition
No.1027/2005, they had filed an appeal whereas no such
direction was made in Writ Petition No.1027/2005. In
this view of the matter, it was contended that the
prayer of the appellants/defendants in the application
under Section 14 of the Act, 1963 even if it was to be
construed as one under Section 5 of the Act, 1963 was
not bona fide and no sufficient cause for not
preferring an appeal within the prescribed period of
limitation was shown by the appellants/defendants. It
was strenuously contended that the conduct of the
appellants/defendants amounted to forum-hunting.
(8) Having considered the rival contentions, I
have perused the record of Civil Suit No.4-A/94.
Section 5 of the Act, 1963 reads as under:
“5. Extension of prescribed period in
certain cases.- Any appeal or any
application, other than an application under
any of the provisions of Order XXI of the
Code of Civil Procedure, 1908, may be
admitted after the prescribed period, if the
appellant or the applicant satisfies the
Court that he had sufficient cause for not
preferring the appeal or making the
application within such period.
Explanation.- The fact that the
appellant or the applicant was misled by any
order, practice or judgment of the High
Court in ascertaining or computing the
prescribed period may be sufficient cause
within the meaning of this section.”
(9) The words “he had sufficient cause for not
preferring the appeal or making the application within
such period” show that the appellant was required to
satisfy the Court hearing the appeal that he had
sufficient cause for not preferring the appeal within
the prescribed period of 90 days from the date of the
ex parte judgment and decree. Two legal remedies were
available to the appellant. He could move an
application under Order 9 Rule 13 of the Code for
setting aside the ex parte judgment and decree or he
could prefer an appeal under Section 96(2) of the Code.
There is no such legal requirement that, in such a
situation, the defendant, must avail both the legal
remedies simultaneously, though he may opt to do so.
In Archana Kumar and another vs. Purendu Prakash
Mukherjee and another (supra), the Full Bench of the
High Court of Madhya Pradesh has held that it is open
to a defendant to prefer an application under Order 9
Rule 13 of the Code and a regular appeal simultaneously
and to pray for stay of further proceedings in appeal
till the application under Order 9 Rule 13 of the Code
is decided. The moot question is whether an inference
of deliberately adopting dilatory tactics or causing
delay with intent to frustrate the ex parte judgment
and decree for eviction of the tenant can be drawn in a
case where before filing an appeal under Section 96 (2)
of the Code the tenant chooses to exhaust the legal
remedy available to him under Order 9 Rule 13 of the
Code by pursuing such remedy upto the appellate and
revisional Court. It is to be borne in mind that
where the time for preferring an appeal or making an
application under the Act, 1963 has expired, a valuable
right accrues to the opposite party to reap the fruits
of the order passed in the ex parte judgment and decree
and such a right ought not to be allowed to be
frustrated in case the delay in resorting to the legal
remedy available under law beyond the period of
limitation was deliberate and not bona fide.
(10) In N. Balakrishnan vs. M. Krishnamurthy, (1998) 7
SCC 123, the Apex Court has succinctly dealt with the
scope of Section 5 of the Act, 1963 as under:
“11. Rules of limitation are not meant to
destroy the rights of parties. They are
meant to see that parties do not resort to
dilatory tactics, but seek their remedy
promptly. The object of providing a legal
remedy is to repair the damage caused by
reason of legal injury. The law of
limitation fixes a lifespan for such legal
remedy for the redress of the legal injury
so suffered. Time is precious and wasted
time would never revisit. During the efflux
of time, newer causes would sprout up
necessitating newer persons to seek legal
remedy by approaching the Courts. So a
lifespan must be fixed for each remedy.
Unending period for launching the remedy
may lead to unending uncertainty and
consequential anarchy. The law of
limitation is thus founded on public
policy. It is enshrined in the maxim
interest reipublicae up sit finis litium
(it is for the general welfare that a
period be put to litigation). Rules of
limitation are not meant to destroy the
rights of the parties. They are meant to
see that parties do not resort to dilatory
tactics but seek their remedy promptly. The
idea is that every legal remedy must be
kept alive for a legislatively fixed period
of time.”
“12. A Court knows that refusal to condone
delay would result in foreclosing a suitor
from putting forth his cause. There is no
presumption that delay in approaching the
Court is always deliberate. This Court has
held that the words “sufficient cause”
under Section 5 of the Limitation Act
should receive a liberal construction so as
to advance substantial justice vide
Shakuntala Devi Jain v. Kuntal Kumari, AIR
1969 SC 575: (1969)1 SCR 1006 and State of
W.B. v. Administrator, Howrah Municipality,
(1972) 1 SCC 366: AIR 1972 SC 749.”
“13. It must be remembered that in every
case of delay, there can be some lapse on
the part of the litigant concerned. That
alone is not enough to turn down his plea
and to shut the door against him. If the
explanation does not smack of mala fides or
it is not put forth as part of a dilatory
strategy, the Court must show utmost
consideration to the suitor. But when there
is reasonable ground to think that the
delay was occasioned by the party
deliberately to gain time, then the Court
should lean against acceptance of the
explanation. While condoning the delay, the
Court should not forget the opposite party
altogether. It must be borne in mind that
he is a loser and he too would have
incurred quite large litigation expenses.
It would be a salutary guideline that when
Courts condone the delay due to laches on
the part of the applicant, the Court shall
compensate the opposite party for his
loss.”
(11) Condonation of delay is a matter of discretion.
The Apex Court, in N. Balakrishnan vs. M. Krishnamurthy
(supra), further went on to say as under:
“9. It is axiomatic that condonation of
delay is a matter of discretion of the
Court. Section 5 of the Limitation Act does
not say that such discretion can be
exercised only if the delay is within a
certain limit. Length of delay is no
matter, acceptability of the explanation is
the only criterion. Sometimes delay of the
shortest range may be uncondonable due to a
want of acceptable explanation whereas in
certain other cases, delay of a very long
range can be condoned as the explanation
thereof is satisfactory. Once the Court
accepts the explanation as sufficient, it
is the result of positive exercise of
discretion and normally the superior Court
should not disturb such finding, much less
in revisional jurisdiction, unless the
exercise of discretion was on wholly
untenable grounds or arbitrary or perverse.
But it is a different matter when the first
Court refuses to condone the delay. In such
cases, the superior Court would be free to
consider the cause shown for the delay
afresh and it is open to such superior
Court to come to its own finding even
untrammelled by the conclusion of the lower
Court.”
(12) Bearing in mind the principle laid down by the
Apex Court in N. Balakrishnan vs. M.
Krishnamurthy (supra), upon scanning the material
available on record, it can safely be held that the
conduct of the appellant in not pursuing the legal
remedy available to him under Section 96(2) of the Code
was a dilatory tactics adopted by him to frustrate the
ex parte eviction decree in favour of the landlord.
(13) The appellant first preferred an application under
Order 9 Rule 13 of the Code. On its rejection,
preferred a miscellaneous appeal under Order 43 Rule
1(d) of the Code, thereafter, upon its dismissal, went
on to prefer a civil revision. Civil Revision
No.143/2003 was dismissed as withdrawn by the appellant
and although liberty was granted to avail the
appropriate legal remedy, the appellant filed a writ
petition under Article 226 of the Constitution instead
of preferring a regular appeal under Section 96(2) of
the Code.
(14) It is true that once an ex parte judgment and
decree is passed against a defendant, he would normally
prefer to avail the remedy under Order 9 Rule 13 of the
Code to set aside such decree. The limitation for
preferring an application under Order 9 Rule 13 of the
Code is 30 days under Article 123 of the Act, 1963,
whereas the limitation for preferring an appeal under
Section 96(2) of the Code against an ex parte judgment
and decree is 90 days under Article 116 of the Act,
1963. However, it may be that the application under
Order 9 Rule 13 of the Code is decided after the period
of 90 days from the date of the ex parte judgment and
decree. Therefore, in every case, where the defendant
first avails the remedy under Order 9 Rule 13 of the
Code and the decision on the said application is given
after the expiry of 90 days, it cannot be said that an
appeal under Section 96(2) of the Code preferred
thereafter along with an application under Section 5 of
the Act, 1963, would be liable to be dismissed for want
of sufficient cause for condonation of delay because
the appellant/defendant was not prevented by sufficient
cause from preferring an appeal under Section 96(2) of
the Code within the period prescribed. Exercise of
discretion to condone the delay would, therefore,
depend on the facts and circumstances of each case. In
the present case, the appellants/defendants availed the
remedy under Order 9 Rule 13 of the Code from pillar to
post. The filing of Writ Petition No.1027/2005 by the
appellants/defendants clearly goes to show that despite
rejection of the application under Order 9 Rule 13 of
the Code, the miscellaneous appeal and the civil
revision, the appellants/defendants had no intention
whatsoever of preferring an appeal under Section 96(2)
of the Code against the ex parte judgment and decree.
This conduct of the appellants/defendants clearly goes
to show that there was no sufficient cause, which
prevented the appellants/defendants from preferring an
appeal under Section 96(2) of the Code within the
period of limitation prescribed by law.
(15) It is also to be noticed that the application
filed under Section 14 of the Act, 1963 for condonation
of delay did not lie because the appellants/defendants
were pursuing the legal remedy under Order 9 Rule 13 of
the Code in Courts having jurisdiction and not in a
wrong forum. Considering its substance, even if the
said application though titled under Section 14 of the
Act, 1963 is construed as an application under Section
5 of the Act, 1963, it would appear that in paragraph 1
of the application, the appellants/defendants mentioned
that the defendants had filed an appeal under Section
96(2) of the Code in pursuance to a direction given by
the High Court in Writ Petition No.1027/2005 for filing
an appeal, whereas no such direction was given in the
order dated 08-12-2005 passed in Writ Petition
No.1027/2005. Paragraph 1 of the said application
dated 14-12-2005 leaves no room for any doubt
that till rejection of the writ petition by the order
dated 08-12-2005, the appellants/defendants had no
intention of filing an appeal under Section 96(2) of
the Code for setting aside the ex parte judgment and
decree dated 10-05-1996. Thus, for a long duration of
over 9 years, the appellants/defendants were pursuing
the remedy under Order 9 Rule 13 of the Code from
pillar to post.
(16) The case law cited by the learned counsel for the
appellants is distinguishable because in Shyamal Kanti
Danda vs. Chunilal Choudhary (supra), the Apex Court,
in the special circumstances of the case, exercised the
powers under Article 136 of Constitution of India and
issued certain directions. In Wadhya Mal vs. Prem
Chand Jain and another (supra), in a motor accident
case the appeals preferred by the insurance company and
the claimants were pending. In the above
circumstances, the Apex Court considered it proper, as
a special circumstance, to give an opportunity to the
appellant-owner to get his appeal admitted on merits
and on this count condoned the delay. In the case of
Balakrishnan vs. Ayyaswami (supra), the appeal was
decided ex parte against the petitioner/respondent and
the petitioner after unsuccessfully pursuing the remedy
under Order 41 Rule 21 C.P.C. preferred an appeal on
merit. However, in the present case, the conduct of
the appellants/defendants right from the service of
summons of suit shows that they were adopting dilatory
tactics. The appellants/defendants remained absent
despite service of summons in the suit for 04-05-1995.
They concocted a story that their counsel had
instructed them not to appear in the Court as the
report of service of summons had not been received.
Thus, the defendants deliberately absented on 4.5.1995
despite service of summons upon them. The cause shown
by them could not be substantiated because according to
the appellants/defendants, their counsel was dead.
This was the ground for the rejection of the Writ
Petition No. 1027 of 2005 on 08.12.2005. The
appellants/defendants, despite service of summons, did
not participate in the proceedings in the suit till its
final adjudication on 10-05-1996 and filed the
application for setting aside the ex parte judgment and
decree as late as on 14-05-1998 on the ground that they
had knowledge of the suit when the warrant of execution
of the judgment and decree was served on them. Thus,
the appellants/defendants adopted dilatory tactics
right from the beginning of the suit. Not only this,
the appellants/defendants in the application under
Section 14 of the Code made a false assertion that upon
a direction given in W.P.No.1027 of 2005 they were
constrained to file an appeal. Thus, in the facts and
circumstances, the appellants/defendants have utterly
failed to satisfy the Court that they were prevented by
sufficient cause from preferring an appeal under
Section 96(2) of the Code within period of limitation
prescribed by law.
(17) In this view of the matter, the learned Additional
District Judge, Janjgir was right in refusing to
condone the delay in filing appeal and dismissing the
appeal as barred by limitation. Substantial question
of law is, thus, answered in the negative.
(18) In the result, the appeal fails and is accordingly
dismissed.
JUDGE