By means of instant petition, the petitioners have challenged the order dated 7.5.2016 passed by Additional District Judge, Court No.3, Gorakhpur in Civil Misc. Case No.1802 of 2015. Thereby, the application filed by the petitioners seeking condonation of delay in filing revision under Section 25 of the Provincial Small Cause Courts Act, 18871 was rejected and as a result whereof, the revision was also dismissed.
The brief facts giving rise to the instant petition are as follows:
Respondent first set (hereinafter referred to as 'the landlords') instituted SCC Suit No.37 of 2008 against the father of the petitioners for recovery of arrears of rent and for eviction. It was alleged that the rent of the premises was Rs.72.81 and he defaulted in payment of rent, consequently, a notice terminating his tenancy was given to him on 6.6.2008. Since he did not vacate, therefore, the landlords were compelled to institute the suit. On 14.12.2012, during pendency of the suit, father of the petitioners passed away and after his death, the petitioners and respondent 2nd set were substituted in his place. The trial court, by order dated 11.7.2013, proceeded exparte against the petitioners and ultimately, decreed the suit exparte on 14.11.2013. The petitioners filed a restoration application under Order 9 Rule 13 CPC on 12.12.2013 through Sri Surendra Kumar Rasbindu Advocate, which was registered as Misc. Case No.47 of 2013. During pendency of the said restoration application, the petitioners deposited a sum of Rs.3876/- on basis of permission granted by the court by order dated 14.3.2014 in purported compliance of Section 17 of the Act. It was followed by filing of restoration application on 14.3.2014 by respondent 2nd set. According to respondent 2nd set, he was not aware of the filing of the earlier restoration application by the petitioners, which ultimately was dismissed in default on 13.2.2015. The restoration application, registered as Misc. Case No.14 of 2014, filed by respondent 2nd set was dismissed by an order dated 10.9.2015. Thereafter, respondent 2nd set filed a recall application seeking recall of order dated 10.9.2015 on the ground that it was an exparte order. The said application also came to be dismissed by order dated 6.10.2015. It was challenged by respondent 2nd set by filing a revision. The petitioners claim that while the above revision was pending in the court of District Judge, they were advised by Sri M.L. Gupta Advocate that they also have remedy of challenging the exparte decree on merits by filing a revision under Section 25 of the Act. Accordingly, the petitioners availed the said remedy by filing a revision on 21.10.2015 alongwith an application seeking condonation of delay. The delay condonation application was opposed by the landlords. By impugned order dated 7.5.2016, the application seeking condonation of delay has been rejected and as a consequence whereof, the revision has also been dismissed and hence, the instant petition.
Before proceeding further, it is pertinent to mention that against order dated 10.9.2015 passed by Judge Small Causes rejecting the restoration application and the order dated 6.10.2015 rejecting the recall application and the order of the revisional court dated 5.1.2016 dismissing revision, respondent 2nd set filed a petition under Article 227 bearing no.261 of 2016 before this Court. In the said petition, an interim order staying his eviction was passed.
The sole submission of learned counsel for the petitioners is that the delay condonation application has been rejected by the trial court by taking a very technical view and on unsustainable grounds. He points out that the first ground on which the court has declined to condone the delay was that the petitioners having engaged several lawyers from time to time, as such, their contention that they were not advised to challenge the exparte decree on merits by filing a revision until they took advice from Sri M.L. Gupta, could not be believed. The second ground on which the delay condonation application has been rejected is that Petition No.261 of 2015 is pending before this Court challenging the orders dated 10.9.2015, 6.10.2015 and 5.1.2016 and any decision in the said case would have impact on the decision in the instant matter. He submitted that both the grounds are not sustainable in law. It is urged that after the petitioners filed application under Order 9 Rule 13 CPC as per legal advice given to them and remained unsuccessful, they were advised by Sri M.L. Gupta that they also have remedy of challenging the exparte decree by filing revision on merits and soon thereafter, they filed the revision. It is urged that merely because the petitioners had engaged several lawyers in the past, it would not lead to an inference that they were also advised about availability of other remedies. He further submitted that the petitioners have duly complied with the provisions of Section 17 of the Act and as such, no malafide could be attributed to them in seeking remedy of filing revision against the exparte decree on merits. He further submitted that the court below has totally misconstrued the scope of Petition No.261 of 2015 in observing that in case revision is entertained, there is likelihood of contradictory orders being passed. It is submitted that the petitioners have legal remedy of challenging exparte decree by filing revision on merits and in such circumstances, a liberal view should have been taken in condoning the delay.
On the other hand, Sri Arvind Srivastava, learned counsel for respondents landlord submitted that the petitioners have not approached the court below with clean hands. They initially filed a restoration application without complying with the provisions of Section 17 of the Act. When they found that their application would be rejected, they got filed another restoration application through respondent 2nd set, but it was also dismissed. Thereafter, they tried to seek another remedy by filing revision against the exparte judgement. It is submitted that the action of the petitioners in seeking such a remedy was wholly malafide and their conduct is reprehensible. He further submitted that the petitioners are occupying a huge premises but they have not tendered any rent to the respondents landlord, apart from what was deposited in compliance of Section 17 of the Act. In support of his contention, he has placed reliance on Supreme Court judgements in Basawaraj and another Vs. Special Land Acquisition Officer2 and Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others3.
In Esha Bhattacharjee (supra), the Supreme Court, after referring to large number of previous decisions, culled out the following broad principles to be applied while considering an application seeking condonation of delay:-
"21.1. There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
21.3. Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
In Basawaraj and another (supra), the Supreme Court held that sufficient cause means "an adequate and enough reason which prevented a party from approaching the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay."
The above principles should thus guide a Court deciding an application seeking condonation of delay. It is well settled by the above judgement that the expression 'sufficient cause' should be given a liberal interpretation to ensure that substantial justice is done. So long as negligence or lack of bona fides cannot be imputed to a party seeking condonation of delay, the Court should lean in favour of a hearing rather than shutting it.
The facts of the instant case reveals that soon after exparte decree was passed on 14.11.2013, a restoration application was filed by the petitioners on 12.12.2013. Although law is settled that restoration application seeking setting aside of decree of eviction and arrears of rent would be maintainable only if provisions of Section 17 of the Act are complied with, but the lawyer who filed the application did not take care to ensure compliance of the said provision. It seems that the petitioners, after such an objection was raised on behalf of the plaintiff-respondents, realised the mistake and deposited the amount due under the exparte decree by challan dated 14.3.2014. The respondent 2nd set, asserting his right, also filed an application under Order 9 Rule 13 CPC on 14.3.2014. The trial court, while dealing with the subsequent application, has entered a finding in favour of the petitioners that a sum of Rs.3876/- was deposited by the petitioners in pursuance of order of the court dated 14.3.2014 in compliance of Section 17 of the Act. Still the application under Order 9 Rule 13 came to be rejected by order dated 10.9.2015 and review application by order dated 6.10.2015. At this stage, according to the petitioners, they were given advice by Sri M.L. Gupta Advocate that they also have a remedy of filing revision for assailing the exparte decree on merits.
It is not disputed before this Court that against an exparte decree, both the remedies are available to a party and these proceedings can also be pursued simultaneously subject to the bar contained under Explanation to Order 9 Rule 13 CPC which precludes a party from maintaining an application under Order 9 Rule 13 CPC, after dismissal of appeal/revision filed against exparte decree. Concededly, in the instant case, the bar contained under the said provision was not attracted, consequently, the remedy of filing revision challenging exparte decree was available to the petitioners.
In Bhanu Kumar Jain Vs. Archana Kumar and another, AIR 2005 SC 626 exactly the same issue was decided by the Supreme Court. An order to proceed exparte was passed on 7.10.1985 against the defendants. On 30.10.1985, the defendants filed an application under Order 9 Rule 7 CPC for setting aside the said order. It was rejected by an order dated 31.10.1985 and a preliminary decree was passed on 1.11.1985 in favour of the appellants. The defendants thereafter filed an application under Order 9 Rule 13 CPC for setting aside the exparte decree. It was dismissed on 15.1.1986 holding that the defendants failed to prove sufficient cause for their absence. An appeal filed by the defendants against the said order was also dismissed on 30.1.1986. They also filed a revision against the order dated 31.10.1985 in the High Court, whereby their application under Order 9 Rule 7 CPC was rejected. It was also dismissed. Simultaneously, they challenged the order dated 5.4.1994 by filing a special leave petition, but it was got dismissed as withdrawn on 16.12.1994. While the said proceedings were pending, the defendants also filed a regular appeal bearing no.109 of 1986 before the High Court, challenging the exparte decree dated 1.11.1985 on merits. The appeal was allowed by the High Court. The plaintiff took the matter in appeal before the Supreme Court contending that High Court erred in entertaining regular appeal, and that too, after restoration application had been dismissed. A litigant cannot be permitted to pursue two remedies simultaneously, being against public policy. The Supreme Court, however, negatived the plea and held as under:-
"23. The question which now arises for consideration is as to whether the First Appeal was maintainable despite the fact that an application under Order 9, Rule 13 of the Code was dismissed.
24. An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the following grounds:
(i) The materials on record brought on record in the ex-parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and
(ii) The suit could not have been posted for ex-parte hearing.
25. In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.
26. When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true.
28. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground ofpublic policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions."
The Supreme Court also explained the difference in scope between the two remedies, by observing thus:-
"The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the Trial Court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in a such an appeal."
In the application seeking condonation of delay, the petitioners, after giving background facts, stated that they received advice for challenging exparte decree by filing revision recently through their present Advocate and accordingly, the revision was filed alongwith delay condonation application. Although, in the meantime, there had been a delay of about one year 11 months and 15 days, but it cannot be disputed that during this period, the petitioners were not sitting idle but were pursuing remedy in respect whereof advice was given to them. As soon as the petitioners were advised about availability of an additional remedy, they availed the said remedy. It is noteworthy that at the relevant time, the revision filed by respondent 2nd set against the orders of the trial court rejecting the restoration application was pending before the District Judge. It was not a case where after those proceedings had attained finality upto the highest Court of law that the petitioners opened another front. As noted above, the petitioners had by that time also deposited the decreetal amount before the trial court. Consequently, it is also not a case where an inference could be drawn that the petitioners were acting malafidely. It cannot be said that the explanation furnished by the petitioners in the application seeking delay of condonation was false or there was no sufficient cause for condoning the delay. The view taken by the court below that since the petitioners had engaged a large number of counsel in the past, therefore, it cannot be believed that they did not get the advice to challenge the exparte decree by filing revision, does not stand to the scrutiny of the legal principles stated above. It is quite possible that the counsel, through whom the restoration application was filed, being hopeful of success, may not have advised the petitioners of availing the other remedy also available to them.
The principles governing an application seeking condonation of delay, as enumerated above, specifically provide that a very technical or pedantic view is to be eschewed and effort of the court, while considering sufficient cause or condoning delay, should be to lean in favour of a view which advances the cause of justice. This Court does not find any specific malafide on part of the petitioners in invoking the remedy of filing revision challenging the exparte judgement on merits. The delay, it seems, had occurred as proper advice in that regard was not given at appropriate time.
The second aspect which needs consideration is whether pendency of Petition No.261 of 2016 would have any effect on the subject matter of dispute, which was involved in the revision filed by the petitioners before the court below. The petition, as noted above, was against orders dated 10.9.2015 and 6.10.2015 rejecting the restoration application and review application filed by respondent 2nd set. The scope of enquiry in the petition was confined to ascertaining the issue relating to sufficiency of cause on part of the defendants in remaining absent before the trial court, resulting in passing of the exparte decree. The exparte decree was not subject matter of challenge on merits. In the revision filed by the petitioners challenging the exparte decree, it was open to them to show on the basis of material on record that such a decree could not have been passed or that relevant findings were not recorded or that the court lacked jurisdiction to pass the decree. Thus, the scope of enquiry in the revision that was filed by the petitioners before the court below, was entirely different to that of the petition pending before this Court. The second reasoning given in the impugned order that entertaining revision at the instance of the petitioners, would affect judgement to be rendered by this Court in Petition No.261 of 2016 is wholly misconceived and not sustainable in law.
Having regard to the entire facts and circumstances of the case, this Court is of the considered opinion that the impugned order passed by the trial court is liable to be set aside. The trial court has failed to exercise the jurisdiction vested in it on wholly irrelevant considerations, resulting in manifest error of law and failure of justice. Consequently, the impugned order is hereby set aside. The application filed by the petitioners seeking condonation of delay in filing revision is allowed, subject to payment of cost of Rs.25,000/- and deposit of up-to-date rent before the court below. The court below is directed to decide the revision on merits in accordance with law, expeditiously, as far as possible within six weeks, without being influenced by any observation made in the instant order.
The petition succeeds and is allowed.
(Manoj Kumar Gupta, J) Order Date :- 27.11.2018 SL