{"id":266422,"date":"2007-11-26T00:00:00","date_gmt":"2007-11-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/2-sachchanand-thawani-vs-5-sita-on-26-november-2007"},"modified":"2019-02-15T18:16:39","modified_gmt":"2019-02-15T12:46:39","slug":"2-sachchanand-thawani-vs-5-sita-on-26-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/2-sachchanand-thawani-vs-5-sita-on-26-november-2007","title":{"rendered":"2 Sachchanand Thawani vs 5 Sita on 26 November, 2007"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
2 Sachchanand Thawani vs 5 Sita on 26 November, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n         IN THE HIGH COURT OF CHATTISGARH AT BILASPUR        \n\n        SA No 213 of 2007\n\n        1 Vinod Kumar Thawani\n\n        2 Sachchanand Thawani\n\n                             ...Petitioners\n\n                                VERSUS\n\n        Firm Ganeshi Lal Gulab\n\n        Chand Partnership Firm\n\n        1 Shankarlal Agrawal\n\n        2 Kailash Prasad Agrawal\n\n        3 Gopal Prasad Agrawal\n\n        4 Sharda\n\n        5 Sita\n\n                             ...Respondents\n\n!       Shri Sanjay S Agrawal counsel for the appellants\n\n^       Shri Rajeev Shrivastava counsel for respondents No 1 to 3\n\n        Honble Shri Dilip Raosaheb Deshmukh J\n\n        Dated: 26\/11\/2007\n\n:       Judgment\n\n\n        Second Appeal under Section 100 of the Code of\n\n                   Civil Procedure, 1908\n\n\n                       JUDGMENT\n<\/pre>\n
        (Delivered on this 26th day of November, 2007)<\/p>\n
     In  this appeal, the judgment and decree dated 11-<\/p>\n
05-2007  passed  by  the  Additional  District   Judge,<\/p>\n
Janjgir   in  Civil  Appeal  No.126-A\/2005   is   under<\/p>\n
challenge  whereby  the appeal  against  the  ex  parte<\/p>\n
judgment  and decree dated 10-05-1996 passed  in  Civil<\/p>\n
Suit No.4-A\/94 by the Civil Judge Class-I, Janjgir  was<\/p>\n
dismissed not only on merits but also on the ground  of<\/p>\n
limitation.\n<\/p>\n
\n(2)   Brief  facts  are that the respondents\/plaintiffs<\/p>\n
instituted Civil Suit No.4-A\/94 for the eviction of the<\/p>\n
appellants\/defendants  from  the   suit   accommodation<\/p>\n
situated  in  Sadar  Bazar,  Champa  on  grounds  under<\/p>\n
Section   12(1)(a)   and  (b)   of   the   Chhattisgarh<\/p>\n
Accommodation  Control Act, 1961 (hereinafter  referred<\/p>\n
to  as `the Act, 1961′).  Despite service of summons of<\/p>\n
the  suit, the defendants remained absent on 04-05-1995<\/p>\n
and  were  proceeded  ex parte on 20-06-1995.   The  ex<\/p>\n
parte judgment and decree was passed by the Civil Judge<\/p>\n
Class-I,      Janjgir     on      10-05-1996.       The<\/p>\n
appellants\/defendants filed an application under  Order<\/p>\n
9  Rule  13  of  the  Code  of  Civil  Procedure,  1908<\/p>\n
(hereinafter  referred to as `the Code’) on  22-06-1998<\/p>\n
before  the  trial  Court on the ground  that  although<\/p>\n
summons were duly served on the defendants for 4.5.1995 <\/p>\n
they did not appear in Court because their counsel  had<\/p>\n
informed them that the report of service of summons was<\/p>\n
not  received  in Court on 4.5.1995 and  thereafter  no<\/p>\n
notice  was  served on them for the date  28.6.1995  on<\/p>\n
which date the Court proceeded ex parte on the basis of<\/p>\n
the  report of service of summons on the defendants for<\/p>\n
4.5.1995.  Thereafter, they did not appear in Court and<\/p>\n
had knowledge of the ex parte judgment and decree on 14-<\/p>\n
05-1998  when the Process Server served the warrant  of<\/p>\n
execution  of  the judgment and decree  on  them.   The<\/p>\n
learned Civil Judge Class-I, Janjgir rejected the  said<\/p>\n
application  on  07-12-2002.  The appellants\/defendants<\/p>\n
preferred  Miscellaneous Appeal No.16\/2002  before  the<\/p>\n
Additional District Judge, Janjgir, which was dismissed<\/p>\n
on   29-01-2003.  The  appellants\/defendants  preferred<\/p>\n
Civil  Revision  No.143\/2003  in  the  High  Court   of<\/p>\n
Chhattisgarh,  which was withdrawn by the  counsel  for<\/p>\n
the  appellants\/defendants on the ground that the  same<\/p>\n
was  not maintainable in view of the proviso to Section<\/p>\n
115 of the Code.  The counsel for the applicants prayed<\/p>\n
for  liberty to file appropriate proceedings  available<\/p>\n
under  law.  The said liberty was granted by  the  High<\/p>\n
Court.  However, instead of preferring an appeal  under<\/p>\n
Section  96(2)  of  the Code, the appellants\/defendants<\/p>\n
preferred   Writ  Petition  No.1027\/2005,   which   was<\/p>\n
dismissed on 08-12-2005.  In this manner, it  was  only<\/p>\n
after   moving   from   pillar   to   post   that   the<\/p>\n
appellants\/defendants preferred  First  Appeal  No.126-<\/p>\n
A\/2005 before the Additional District Judge, Janjgir on<\/p>\n
14-12-2005  along with an application under Section  14<\/a><\/p>\n
of the Limitation Act, 1963 (hereinafter referred to as<\/p>\n
`the Act, 1963′) for condonation of delay in filing the<\/p>\n
said appeal.  Learned counsel for respondents No.1 to 3<\/p>\n
submitted that in the said appeal, stay on execution of<\/p>\n
the  ex  parte judgment and decree was granted  by  the<\/p>\n
Additional  District  Judge,  Janjgir,  whereupon   the<\/p>\n
respondents\/plaintiffs    preferred    Writ    Petition<\/p>\n
No.1646\/2006  before  the High Court  of  Chhattisgarh,<\/p>\n
which   was  dismissed  vide  order  dated  13-04-2006.<\/p>\n
Against  the  said  order,  the  respondents\/plaintiffs<\/p>\n
preferred  S.L.P. (Civil) before the  Apex  Court.  The<\/p>\n
S.L.P.  (Civil) preferred by the respondents\/plaintiffs<\/p>\n
against  the  order  dated 13-04-2006  passed  in  Writ<\/p>\n
Petition  No.1646\/2006 was disposed  of  on  16-04-2007<\/p>\n
with a direction to the first appellate Court to decide<\/p>\n
the application for condonation of delay as well as the<\/p>\n
first   appeal,   which   had   been   filed   by   the<\/p>\n
appellants\/defendants herein.\n<\/p>\n
\n(3)    By   the  impugned  judgment  and  decree,   the<\/p>\n
Additional  District Judge dismissed the  civil  appeal<\/p>\n
not  only  on merits, but also on the ground  that  the<\/p>\n
appeal  was  barred by limitation and sufficient  cause<\/p>\n
for  condonation of delay was not shown.  It  was  also<\/p>\n
held   that  Section  14<\/a>  of  the  Act,  1963  had   no<\/p>\n
application   since   the  appellants\/defendants   were<\/p>\n
prosecuting a legal remedy available to them in a Court<\/p>\n
having   jurisdiction.   It  further  held   that   the<\/p>\n
appellants\/defendants were unable  to  show  sufficient<\/p>\n
cause  for condonation of delay in filing First  Appeal<\/p>\n
No.126-A\/2005.\n<\/p>\n
\n(4)  In this appeal, the following substantial question<\/p>\n
of law arises for determination:\n<\/p>\n
\n
          “Whether on the facts and circumstances
\n          of   the   case,   rejection   of   the
\n          application for condonation of delay by
\n          the  lower appellate Court is  contrary
\n          to law?”\n<\/p><\/blockquote>\n
(5)   Shri Sanjay S. Agrawal, learned counsel  for  the<\/p>\n
appellants\/defendants  has  argued  that  although  the<\/p>\n
application  filed by the appellants\/defendants  before<\/p>\n
the  lower appellate Court was titled as under  Section<\/p>\n
14<\/a>  of  the  Act, 1963, it was in sum and substance  an<\/p>\n
application under Section 5<\/a> of the Act, 1963.   Learned<\/p>\n
counsel for the appellants\/defendants conceded that  no<\/p>\n
application under Section 14<\/a> of the Act, 1963 would lie<\/p>\n
because  the  appellants\/defendants were  pursuing  the<\/p>\n
remedy  under Order 9 Rule 13 of the Code  in  a  Court<\/p>\n
having jurisdiction.  Reliance was placed on Wadhya Mal<\/p>\n
vs.  Prem Chand Jain and another<\/a>, AIR 1982 SC 18  while <\/p>\n
arguing  that the appellants\/defendants were misled  in<\/p>\n
not  preferring  the  appeal  simultaneously  with  the<\/p>\n
application  under  Order 9 Rule 13  of  the  Code  for<\/p>\n
setting aside the ex parte judgment and decree.  In the<\/p>\n
abovementioned case, the Apex Court was  considering  a <\/p>\n
matter  in  which  an  award was passed  by  the  Motor<\/p>\n
Accidents  Claims  Tribunal against the  owner  of  the<\/p>\n
truck  involved  in the accident, who had  remained  ex<\/p>\n
parte.   An application for setting aside the ex  parte<\/p>\n
award  was  dismissed and an appeal  against  the  said<\/p>\n
order   was   also   dismissed  as  not   maintainable.<\/p>\n
Thereafter,  the appellant preferred an appeal  against<\/p>\n
the  award,  which  was obviously time  barred  and  an<\/p>\n
application  for condonation of delay was  rejected  on<\/p>\n
the  ground  that his moving from pillar to post  would<\/p>\n
not  be  a  ground for condoning the delay.   The  Apex<\/p>\n
Court  in the above situation considered it appropriate<\/p>\n
to  give  an  opportunity to the appellant to  get  his<\/p>\n
appeal admitted on merits because the award, which  the<\/p>\n
owner  sought to challenge, was under challenge in  two<\/p>\n
separate appeals preferred by the insurance company and <\/p>\n
the  claimant.   In  this  situation,  the  Apex  Court<\/p>\n
condoned  the  delay and directed that  the  appeal  be<\/p>\n
admitted  to  file and heard and be disposed  of  along<\/p>\n
with the two appeals preferred by the insurance company<\/p>\n
and the claimant.\n<\/p>\n
\n(6)   Reliance was also placed on Shyamal  Kanti  Danda<\/p>\n
vs.  Chunilal  Choudhary<\/a>, AIR 1984 SC  1732,  in  which<\/p>\n
after  passing  of an ex parte decree, the  application<\/p>\n
under  Order 9 Rule 13 of the Code came to be dismissed <\/p>\n
as  not  maintainable and the appeal against  the  said<\/p>\n
order also failed.  The unsuccessful defendant moved an<\/p>\n
application  praying for condonation of  delay  of  386<\/p>\n
days in preferring the appeal on the ground that he was<\/p>\n
prosecuting  under  legal advice a  remedy  in  another<\/p>\n
Civil Court for setting aside the ex parte decree under<\/p>\n
Order  9  Rule  13 of the Code, but as that  Court  was<\/p>\n
unable  to  grant relief, the time spent bona  fide  in<\/p>\n
prosecuting this remedy should be excluded in computing <\/p>\n
the  period of limitation.  The learned first appellate<\/p>\n
Court  declined to condone the delay and dismissed  the<\/p>\n
appeal.   After an unsuccessful revision  in  the  High<\/p>\n
Court,  the  defendant\/petitioner approached  the  Apex<\/p>\n
Court under Article 136<\/a> of the Constitution.  The  Apex<\/p>\n
Court,  in exercise of the powers under Article 136<\/a>  of<\/p>\n
the Constitution, directed the petitioner to deposit  a<\/p>\n
sum of Rs.27,000\/- as use and occupation charges during <\/p>\n
the  period  spent in the trial Court  and  to  further<\/p>\n
deposit such charges at the rate of Rs.225\/- per  month<\/p>\n
from  month  to  month before the  10th  day  of  every<\/p>\n
succeeding  month commencing from July, 1994  till  the<\/p>\n
suit  was  finally disposed of by the trial Court.   It<\/p>\n
was   ordered   that  on  complying  with   the   above<\/p>\n
conditions, the application for condoning the delay  in<\/p>\n
preferring the appeal in the District Court shall stand<\/p>\n
allowed  and  the appeal shall also stand  admitted  to<\/p>\n
file  and  shall also be allowed thereby setting  aside<\/p>\n
the  ex parte judgment and decree passed by the learned<\/p>\n
Munsiff  disposing  of  the suit  on  merits.   It  was<\/p>\n
further directed that the defendant\/petitioner shall be<\/p>\n
permitted to participate in the proceedings before  the<\/p>\n
learned  Munsiff  and the case shall proceed  form  the<\/p>\n
stage  where it was disposed of in the absence  of  the<\/p>\n
petitioner.  Certain other directions were also  given.<\/p>\n
Lastly,   reliance  was  placed  on  Balakrishnan   vs.<\/p>\n
Ayyaswami<\/a>, AIR 1983 Madras 17.  In this case, there was <\/p>\n
delay  in filing the second appeal against an ex  parte<\/p>\n
decree    passed   in   first   appeal   because    the<\/p>\n
appellant\/defendant   was  unsuccessfully   prosecuting<\/p>\n
proceedings  under Order 41 Rule 21  of  the  Code  for<\/p>\n
setting  aside  the ex parte decree. It was  held  that<\/p>\n
there was sufficient cause for condonation of delay  in<\/p>\n
filing the second appeal.\n<\/p>\n
\n(7)   On  the  other  hand,  Shri  Rajeev  Shrivastava,<\/p>\n
learned  counsel  for respondents No.1 to  3\/plaintiffs<\/p>\n
argued  in support of the impugned judgment and  decree<\/p>\n
and    submitted   that   it   was    open    to    the<\/p>\n
appellants\/defendants  to  prefer  the   first   appeal<\/p>\n
simultaneously with the application under Order 9  Rule<\/p>\n
13  of  the Code within the period of limitation.   The<\/p>\n
conduct  of the appellants\/defendants in not filing  an<\/p>\n
appeal   till  he  pursued  his  remedy  by  filing   a<\/p>\n
miscellaneous appeal, civil revision and writ  petition<\/p>\n
clearly  shows  that the appellants\/defendants  had  no<\/p>\n
bona fide intention of filing an appeal and were, thus,<\/p>\n
not  prevented by any sufficient cause from  preferring<\/p>\n
the  appeal within the prescribed period of limitation.<\/p>\n
Reliance  was placed on Archana Kumar and  another  vs. <\/p>\n
Purendu  Prakash Mukherjee and another<\/a>, 2000  (2)  MPLJ  <\/p>\n
491,  a  decision of Full Bench of the  High  Court  of<\/p>\n
Madhya  Pradesh, in which it was held that  even  after<\/p>\n
dismissal of the application under Order 9 Rule  13  of<\/p>\n
the Code, a regular first appeal under Section 96(2) of<\/p>\n
the  Code  is  maintainable  and  it  is  open  to  the<\/p>\n
defendant to prefer an application under Order  9  Rule<\/p>\n
13  of the Code and a regular appeal simultaneously and<\/p>\n
to  pray for stay of further proceedings in appeal till<\/p>\n
the  application under Order 9 Rule 13 of the  Code  is<\/p>\n
decided.  It was also argued that the application under<\/p>\n
Section  14<\/a>  of  the  Act, 1963  was  not  maintainable<\/p>\n
because  the  appellants\/defendants were prosecuting  a<\/p>\n
remedy  available to them under Order 9 Rule 13 of  the<\/p>\n
Code  before a Court having jurisdiction.  It was  also<\/p>\n
argued that in the application under Section 14<\/a> of  the<\/p>\n
Act, 1963, the appellants\/defendants had mentioned that<\/p>\n
pursuant   to   a  direction  made  in  Writ   Petition<\/p>\n
No.1027\/2005, they had filed an appeal whereas no  such<\/p>\n
direction  was made in Writ Petition No.1027\/2005.   In<\/p>\n
this  view  of  the matter, it was contended  that  the<\/p>\n
prayer  of the appellants\/defendants in the application<\/p>\n
under Section 14<\/a> of the Act, 1963 even if it was to  be<\/p>\n
construed as one under Section 5<\/a> of the Act,  1963  was<\/p>\n
not   bona  fide  and  no  sufficient  cause  for   not<\/p>\n
preferring  an appeal within the prescribed  period  of<\/p>\n
limitation was shown by the appellants\/defendants.   It<\/p>\n
was  strenuously  contended that  the  conduct  of  the<\/p>\n
appellants\/defendants amounted to forum-hunting.<\/p>\n
(8)        Having  considered the rival contentions,  I<\/p>\n
have  perused  the  record  of  Civil  Suit  No.4-A\/94.<\/p>\n
Section 5<\/a> of the Act, 1963 reads as under:<\/p>\n
      “5.    Extension  of  prescribed  period   in
\n      certain   cases.-   Any   appeal    or    any
\n      application, other than an application  under
\n      any  of  the provisions of Order XXI  of  the
\n      Code   of  Civil  Procedure,  1908,  may   be
\n      admitted after the prescribed period, if  the
\n      appellant  or  the  applicant  satisfies  the
\n      Court  that he had sufficient cause  for  not
\n      preferring   the   appeal   or   making   the
\n      application within such period.\n<\/p><\/blockquote>\n
             Explanation.-  The   fact   that   the
\n      appellant or the applicant was misled by  any
\n      order,  practice  or  judgment  of  the  High
\n      Court   in  ascertaining  or  computing   the
\n      prescribed  period  may be  sufficient  cause
\n      within the meaning of this section.”\n<\/p><\/blockquote>\n
(9)   The  words  “he  had  sufficient  cause  for  not<\/p>\n
preferring the appeal or making the application  within<\/p>\n
such  period” show that the appellant was  required  to<\/p>\n
satisfy  the  Court  hearing the  appeal  that  he  had<\/p>\n
sufficient  cause for not preferring the appeal  within<\/p>\n
the  prescribed period of 90 days from the date of  the<\/p>\n
ex  parte judgment and decree.  Two legal remedies were<\/p>\n
available   to  the  appellant.   He  could   move   an<\/p>\n
application  under  Order 9 Rule 13  of  the  Code  for<\/p>\n
setting  aside the ex parte judgment and decree  or  he<\/p>\n
could prefer an appeal under Section 96(2) of the Code.<\/p>\n
There  is  no such legal requirement that,  in  such  a<\/p>\n
situation,  the  defendant, must avail both  the  legal<\/p>\n
remedies  simultaneously, though he may opt to  do  so.<\/p>\n
In  Archana  Kumar  and  another  vs.  Purendu  Prakash<\/p>\n
Mukherjee  and another<\/a> (supra), the Full Bench  of  the<\/p>\n
High  Court of Madhya Pradesh has held that it is  open<\/p>\n
to  a defendant to prefer an application under Order  9<\/p>\n
Rule 13 of the Code and a regular appeal simultaneously<\/p>\n
and  to  pray for stay of further proceedings in appeal<\/p>\n
till  the application under Order 9 Rule 13 of the Code<\/p>\n
is  decided.  The moot question is whether an inference<\/p>\n
of  deliberately adopting dilatory tactics  or  causing<\/p>\n
delay  with  intent to frustrate the ex parte  judgment<\/p>\n
and decree for eviction of the tenant can be drawn in a<\/p>\n
case where before filing an appeal under Section 96<\/a> (2)<\/p>\n
of  the  Code the tenant chooses to exhaust  the  legal<\/p>\n
remedy  available to him under Order 9 Rule 13  of  the<\/p>\n
Code  by  pursuing such remedy upto the  appellate  and<\/p>\n
revisional  Court.    It is to be borne  in  mind  that<\/p>\n
where  the  time for preferring an appeal or making  an<\/p>\n
application under the Act, 1963 has expired, a valuable<\/p>\n
right  accrues to the opposite party to reap the fruits<\/p>\n
of the order passed in the ex parte judgment and decree<\/p>\n
and  such  a  right  ought not  to  be  allowed  to  be<\/p>\n
frustrated in case the delay in resorting to the  legal<\/p>\n
remedy  available  under  law  beyond  the  period   of<\/p>\n
limitation was deliberate and not bona fide.<\/p>\n
(10) In N. Balakrishnan vs. M. Krishnamurthy<\/a>, (1998)  7<\/p>\n
SCC  123, the Apex Court has succinctly dealt with  the<\/p>\n
scope of Section 5<\/a> of the Act, 1963 as under:<\/p>\n
      “11.  Rules of limitation are not meant  to
\n      destroy  the  rights of parties.  They  are
\n      meant to see that parties do not resort  to
\n      dilatory  tactics,  but seek  their  remedy
\n      promptly. The object of providing  a  legal
\n      remedy  is  to repair the damage caused  by
\n      reason   of  legal  injury.  The   law   of
\n      limitation fixes a lifespan for such  legal
\n      remedy  for the redress of the legal injury
\n      so  suffered. Time is precious  and  wasted
\n      time would never revisit. During the efflux
\n      of  time,  newer  causes  would  sprout  up
\n      necessitating newer persons to  seek  legal
\n      remedy  by  approaching the  Courts.  So  a
\n      lifespan  must  be fixed for  each  remedy.
\n      Unending  period for launching  the  remedy
\n      may   lead  to  unending  uncertainty   and
\n      consequential   anarchy.   The    law    of
\n      limitation  is  thus  founded   on   public
\n      policy.  It  is  enshrined  in  the   maxim
\n      interest  reipublicae up sit  finis  litium
\n      (it  is  for  the  general welfare  that  a
\n      period  be  put  to litigation).  Rules  of
\n      limitation  are  not meant to  destroy  the
\n      rights  of the parties. They are  meant  to
\n      see  that parties do not resort to dilatory
\n      tactics but seek their remedy promptly. The
\n      idea  is  that every legal remedy  must  be
\n      kept alive for a legislatively fixed period
\n      of time.”\n<\/p><\/blockquote>\n
      “12.  A Court knows that refusal to condone
\n      delay  would result in foreclosing a suitor
\n      from  putting forth his cause. There is  no
\n      presumption  that delay in approaching  the
\n      Court is always deliberate. This Court  has
\n      held  that  the  words  “sufficient  cause”
\n      under  Section  5<\/a>  of  the  Limitation  Act
\n      should receive a liberal construction so as
\n      to   advance   substantial   justice   vide
\n      Shakuntala Devi Jain v. Kuntal Kumari<\/a>,  AIR
\n      1969 SC 575: (1969)1 SCR 1006 and State  of
\n      W.B. v. Administrator, Howrah Municipality<\/a>,
\n      (1972) 1 SCC 366: AIR 1972 SC 749.”\n<\/p><\/blockquote>\n
      “13.  It  must be remembered that  in  every
\n      case  of  delay, there can be some lapse  on
\n      the  part  of  the litigant concerned.  That
\n      alone  is  not enough to turn down his  plea
\n      and  to  shut the door against him.  If  the
\n      explanation does not smack of mala fides  or
\n      it  is  not put forth as part of a  dilatory
\n      strategy,   the  Court  must   show   utmost
\n      consideration to the suitor. But when  there
\n      is  reasonable  ground  to  think  that  the
\n      delay    was   occasioned   by   the   party
\n      deliberately  to gain time, then  the  Court
\n      should   lean  against  acceptance  of   the
\n      explanation. While condoning the delay,  the
\n      Court  should not forget the opposite  party
\n      altogether.  It must be borne in  mind  that
\n      he   is  a  loser  and  he  too  would  have
\n      incurred  quite  large litigation  expenses.
\n      It  would be a salutary guideline that  when
\n      Courts  condone the delay due to  laches  on
\n      the  part of the applicant, the Court  shall
\n      compensate  the  opposite  party   for   his
\n      loss.”\n<\/p><\/blockquote>\n
(11)  Condonation of delay is a matter  of  discretion.<\/p>\n
The Apex Court, in N. Balakrishnan vs. M. Krishnamurthy<\/a><\/p>\n
(supra), further went on to say as under:<\/p>\n
      “9.   It  is axiomatic that condonation  of
\n      delay  is  a  matter of discretion  of  the
\n      Court. Section 5<\/a> of the Limitation Act does
\n      not   say  that  such  discretion  can   be
\n      exercised  only if the delay  is  within  a
\n      certain  limit.  Length  of  delay  is   no
\n      matter, acceptability of the explanation is
\n      the  only criterion. Sometimes delay of the
\n      shortest range may be uncondonable due to a
\n      want  of acceptable explanation whereas  in
\n      certain  other cases, delay of a very  long
\n      range  can  be condoned as the  explanation
\n      thereof  is  satisfactory. Once  the  Court
\n      accepts  the explanation as sufficient,  it
\n      is  the  result  of  positive  exercise  of
\n      discretion and normally the superior  Court
\n      should not disturb such finding, much  less
\n      in   revisional  jurisdiction,  unless  the
\n      exercise   of  discretion  was  on   wholly
\n      untenable grounds or arbitrary or perverse.
\n      But it is a different matter when the first
\n      Court refuses to condone the delay. In such
\n      cases, the superior Court would be free  to
\n      consider  the  cause shown  for  the  delay
\n      afresh  and  it  is open to  such  superior
\n      Court  to  come  to  its own  finding  even
\n      untrammelled by the conclusion of the lower
\n      Court.”\n<\/p><\/blockquote>\n
(12)  Bearing in mind the principle laid  down  by  the<\/p>\n
Apex   Court   in           N.  Balakrishnan   vs.   M<\/a>.\n<\/p>\n
Krishnamurthy  (supra),  upon  scanning  the   material<\/p>\n
available  on  record, it can safely be held  that  the<\/p>\n
conduct  of  the  appellant in not pursuing  the  legal<\/p>\n
remedy available to him under Section 96(2) of the Code<\/p>\n
was  a dilatory tactics adopted by him to frustrate the<\/p>\n
ex parte eviction decree in favour of the landlord.<\/p>\n
(13) The appellant first preferred an application under<\/p>\n
Order  9  Rule  13  of  the Code.   On  its  rejection,<\/p>\n
preferred  a miscellaneous appeal under Order  43  Rule<\/p>\n
1(d)  of the Code, thereafter, upon its dismissal, went<\/p>\n
on   to   prefer  a  civil  revision.   Civil  Revision<\/p>\n
No.143\/2003 was dismissed as withdrawn by the appellant <\/p>\n
and   although  liberty  was  granted  to   avail   the<\/p>\n
appropriate  legal remedy, the appellant filed  a  writ<\/p>\n
petition under Article 226<\/a> of the Constitution  instead<\/p>\n
of  preferring a regular appeal under Section 96(2)  of<\/p>\n
the Code.\n<\/p>\n
\n(14)  It  is  true that once an ex parte  judgment  and<\/p>\n
decree is passed against a defendant, he would normally<\/p>\n
prefer to avail the remedy under Order 9 Rule 13 of the<\/p>\n
Code  to  set  aside such decree.  The  limitation  for<\/p>\n
preferring an application under Order 9 Rule 13 of  the<\/p>\n
Code  is  30  days under Article 123<\/a> of the Act,  1963,<\/p>\n
whereas  the limitation for preferring an appeal  under<\/p>\n
Section  96(2) of the Code against an ex parte judgment<\/p>\n
and  decree  is 90 days under Article 116<\/a> of  the  Act,<\/p>\n
1963.   However,  it may be that the application  under<\/p>\n
Order 9 Rule 13 of the Code is decided after the period<\/p>\n
of  90 days from the date of the ex parte judgment  and<\/p>\n
decree.   Therefore, in every case, where the defendant<\/p>\n
first  avails the remedy under Order 9 Rule 13  of  the<\/p>\n
Code  and the decision on the said application is given<\/p>\n
after the expiry of 90 days, it cannot be said that  an<\/p>\n
appeal  under  Section  96(2)  of  the  Code  preferred<\/p>\n
thereafter along with an application under Section 5<\/a> of<\/p>\n
the Act, 1963, would be liable to be dismissed for want<\/p>\n
of  sufficient  cause for condonation of delay  because<\/p>\n
the appellant\/defendant was not prevented by sufficient<\/p>\n
cause from preferring an appeal under Section 96(2)  of<\/p>\n
the  Code  within the period prescribed.   Exercise  of<\/p>\n
discretion  to  condone  the  delay  would,  therefore,<\/p>\n
depend on the facts and circumstances of each case.  In<\/p>\n
the present case, the appellants\/defendants availed the<\/p>\n
remedy under Order 9 Rule 13 of the Code from pillar to<\/p>\n
post.  The filing of Writ Petition No.1027\/2005 by  the<\/p>\n
appellants\/defendants clearly goes to show that despite<\/p>\n
rejection of the application under Order 9 Rule  13  of<\/p>\n
the  Code,  the  miscellaneous  appeal  and  the  civil<\/p>\n
revision,  the appellants\/defendants had  no  intention<\/p>\n
whatsoever of preferring an appeal under Section  96(2)<\/p>\n
of  the  Code against the ex parte judgment and decree.<\/p>\n
This  conduct of the appellants\/defendants clearly goes<\/p>\n
to  show  that  there  was no sufficient  cause,  which<\/p>\n
prevented the appellants\/defendants from preferring  an<\/p>\n
appeal  under  Section 96(2) of  the  Code  within  the<\/p>\n
period of limitation prescribed by law.<\/p>\n
(15)  It  is  also  to be noticed that the  application<\/p>\n
filed under Section 14<\/a> of the Act, 1963 for condonation<\/p>\n
of  delay did not lie because the appellants\/defendants<\/p>\n
were pursuing the legal remedy under Order 9 Rule 13 of<\/p>\n
the  Code  in Courts having jurisdiction and not  in  a<\/p>\n
wrong  forum.  Considering its substance, even  if  the<\/p>\n
said application though titled under Section 14<\/a> of  the<\/p>\n
Act,  1963 is construed as an application under Section<\/p>\n
5<\/a> of the Act, 1963, it would appear that in paragraph 1<\/p>\n
of the application, the appellants\/defendants mentioned<\/p>\n
that  the defendants had filed an appeal under  Section<\/p>\n
96(2) of the Code in pursuance to a direction given  by<\/p>\n
the High Court in Writ Petition No.1027\/2005 for filing<\/p>\n
an  appeal, whereas no such direction was given in  the<\/p>\n
order   dated   08-12-2005  passed  in  Writ   Petition<\/p>\n
No.1027\/2005.   Paragraph  1 of  the  said  application<\/p>\n
dated           14-12-2005 leaves no room for any doubt<\/p>\n
that  till rejection of the writ petition by the  order<\/p>\n
dated  08-12-2005,  the  appellants\/defendants  had  no<\/p>\n
intention  of filing an appeal under Section  96(2)  of<\/p>\n
the  Code  for setting aside the ex parte judgment  and<\/p>\n
decree dated 10-05-1996.  Thus, for a long duration  of<\/p>\n
over  9  years, the appellants\/defendants were pursuing<\/p>\n
the  remedy  under  Order 9 Rule 13 of  the  Code  from<\/p>\n
pillar to post.\n<\/p>\n
\n(16) The case law cited by the learned counsel for  the<\/p>\n
appellants is distinguishable because in Shyamal  Kanti<\/p>\n
Danda  vs. Chunilal Choudhary<\/a> (supra), the Apex  Court,<\/p>\n
in the special circumstances of the case, exercised the<\/p>\n
powers  under Article 136<\/a> of Constitution of India  and<\/p>\n
issued  certain directions.   In Wadhya  Mal  vs.  Prem<\/p>\n
Chand  Jain  and  another<\/a> (supra), in a motor  accident<\/p>\n
case the appeals preferred by the insurance company and <\/p>\n
the    claimants   were   pending.    In   the    above<\/p>\n
circumstances, the Apex Court considered it proper,  as<\/p>\n
a  special circumstance, to give an opportunity to  the<\/p>\n
appellant-owner  to get his appeal admitted  on  merits<\/p>\n
and  on this count condoned the delay.  In the case  of<\/p>\n
Balakrishnan  vs.  Ayyaswami<\/a> (supra),  the  appeal  was<\/p>\n
decided ex parte against the petitioner\/respondent  and<\/p>\n
the petitioner after unsuccessfully pursuing the remedy<\/p>\n
under  Order 41 Rule 21 C.P.C. preferred an  appeal  on<\/p>\n
merit.   However, in the present case, the  conduct  of<\/p>\n
the  appellants\/defendants right from  the  service  of<\/p>\n
summons  of suit shows that they were adopting dilatory<\/p>\n
tactics.   The  appellants\/defendants  remained  absent<\/p>\n
despite  service of summons in the suit for 04-05-1995.<\/p>\n
They   concocted  a  story  that  their   counsel   had<\/p>\n
instructed  them  not to appear in  the  Court  as  the<\/p>\n
report  of  service of summons had not  been  received.<\/p>\n
Thus,  the defendants deliberately absented on 4.5.1995<\/p>\n
despite service of summons upon them.  The cause  shown  <\/p>\n
by them could not be substantiated because according to<\/p>\n
the  appellants\/defendants,  their  counsel  was  dead.<\/p>\n
This  was  the  ground for the rejection  of  the  Writ<\/p>\n
Petition   No.  1027  of  2005  on  08.12.2005.     The<\/p>\n
appellants\/defendants, despite service of summons,  did<\/p>\n
not participate in the proceedings in the suit till its<\/p>\n
final   adjudication  on  10-05-1996  and   filed   the<\/p>\n
application for setting aside the ex parte judgment and<\/p>\n
decree as late as on 14-05-1998 on the ground that they<\/p>\n
had knowledge of the suit when the warrant of execution<\/p>\n
of  the judgment and decree was served on them.   Thus,<\/p>\n
the   appellants\/defendants  adopted  dilatory  tactics<\/p>\n
right  from the beginning of the suit.  Not only  this,<\/p>\n
the  appellants\/defendants  in  the  application  under<\/p>\n
Section 14 of the Code made a false assertion that upon<\/p>\n
a  direction  given in W.P.No.1027 of  2005  they  were<\/p>\n
constrained to file an appeal.  Thus, in the facts  and<\/p>\n
circumstances, the appellants\/defendants  have  utterly<\/p>\n
failed to satisfy the Court that they were prevented by<\/p>\n
sufficient  cause  from  preferring  an  appeal   under<\/p>\n
Section  96(2) of the Code within period of  limitation<\/p>\n
prescribed by law.\n<\/p>\n
\n(17) In this view of the matter, the learned Additional<\/p>\n
District  Judge,  Janjgir  was  right  in  refusing  to<\/p>\n
condone  the delay in filing appeal and dismissing  the<\/p>\n
appeal  as barred by limitation.  Substantial  question<\/p>\n
of law is, thus, answered in the negative.<\/p>\n
(18) In the result, the appeal fails and is accordingly<\/p>\n
dismissed.\n<\/p>\n
\n
JUDGE<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court 2 Sachchanand Thawani vs 5 Sita on 26 November, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-266422","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\n2 Sachchanand Thawani vs 5 Sita on 26 November, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/2-sachchanand-thawani-vs-5-sita-on-26-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"2 Sachchanand Thawani vs 5 Sita on 26 November, 2007 - 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