1. Heard Sri M.A. Khan, learned Senior Advocate, assisted by Mohd. Aslam, learned counsel for petitioner and Sri Anurag Narain, Advocate, appearing for contesting respondents.
2. This writ petition is directed against the order 14.3.2008 (Annexure 6 to writ petition) passed by Civil Judge (Senior Division), Hardoi rejecting petitiner's application under order 9 Rule 13 C.P.C. praying for recall of ex parte decree dated 5.11.2004 in P.A. No. 9 of 1999 (Laxmi Narain etc. Vs. Satish Chandra etc. and the appellate order dated 23.1.2009 passed by Addl. District Judge, Hardoi dismissing petitioner's appeal.
3. The facts in brief giving rise to the present dispute are as under.
4. Sri Munnu Lal, father of petitioner, was tenant of the shop in question situated at Mohalla Sulhara, Bilgram, District Hardoi owned by Sri Babu Ram son of Sri Kamta Prasad and Smt. Ram Shri Devi wife of Babu Ram under a family settlement which became part of a compromise decree dated 11.1.1989 in Suit No. 376 of 1988 (Devendra Kumar Vs. Babu Ram and others). Both the aforesaid landlords died. Sri Babu Ram died on 3.1.1991 and Smt. Ram Shri died on 24.1.1997 whereafter propriety in dispute came to be succeeded by respondents 3, 4, 5, 6, 7 and one Reshma Devi, widow of Late Suresh Chandra. Sri Munnu Lal also died creating tenancy rights in favour of the petitioner and respondents no. 9 to 13.
5. The aforesaid landlords filed an application dated 21.10.1999 under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") for release of the aforesaid shop.
6. A written statement was filed on behalf of Satish Chandra (respondent no. 9) and others, i.e., all the joint tenants through their Advocate, Ajay Kumar Dwivedi before the Prescribed Authority/Civil Judge. Thereafter it appears that the tenants did not pursue the matter before Trial Court. The P.A. 9 of 1999 ultimately was decided vide judgment pronounced on 5.11.2004 by Addl. Civil Judge (Senior Division), Hardoi decreeing the suit and directing tenants to hand over vacant possession of the premises in question to plaintiff-landlords.
7. An application dated 10/11.3.2005 was filed by petitioner for recall of ex parte decree dated 5.11.2004. He averred in the said application that after death of his father, Sri Munnu Lal, he is carrying sarafa business in the shop in question and other tenant-defendants had no concerned with the shop in question. In the written statement in P.A. No. 9 of 1999 on 21.12.2000, in para 11, it was clearly stated that petitioner was looking after ancestral business of sarafa in the shop in question. The petitioner fell ill during 20.9.2004 to 8.3.2005 and was under treatment at Katiyar Nursing Home, Dharamshala Road, Hardoi hence could not appear before Trial Court when ex parte decree was passed on 5.11.2004 which deserves to be recalled.
8. Since application dated 10/11.3.2005 was filed beyond 30 days from the date of ex parte decree, i.e. after expiry of period of limitation, petitioner also filed an application under Section 5 of Limitation Act, 1963 seeking condonation of delay. The explanation for delay was also same that petitioner fell ill between 20.9.2004 to 8.3.2005.
9. The Trial Court initially considered petitioner's application for condonation of delay i.e. whether delay of more than 30 days in filing application under Order 9 Rule 13 C.P.C. was satisfactorily explained or not. The delay condonation application was allowed by order dated 7.12.2007 on payment of cost of Rs. 100/-.
10. Thereafter Trial Court took up application under Order 9 Rule 13 C.P.C. After hearing the parties, same was rejected on 14.3.2008. It is this order which led in filing of Misc. Appeal No. 15 of 2008 which has been rejected by Addl. District Judge, Court No. 6, Hardoi vide judgment dated 23.1.2009 holding that appeal was not maintainable against an order rejecting application under Order 9 Rule 13 C.P.C.
11. Sri M.A. Khan, learned Senior Advocate, fairly conceded that so far as the view taken by Appellate Court, respondent no. 1, that appeal against the order dated 14.3.2008 was not maintainable cannot be faulted and it appears that petitioner under a mistaken, wrong legal advise filed such appeal though it was not maintainable.
12. He, however, seriously harped upon correctness of Trial Court's order dated 14.3.2008 contending that once for condoning delay in filing application under Order 9 Rule 13 C.P.C., the Court felt satisfied with the explanation of petitioner regarding his illness from 20.9.2004 to 8.3.2005, it could not have proceeded otherwise to reject application under Order 9 Rule 13 C.P.C. for which also petitioner's explanation was same, i.e., illness on 5.11.2004. He submitted that the impugned order dated 14.3.2008 passed by Trial Court is wholly illegal, erroneous and suffers a patent error apparent on the face of record and therefore deserves to be set aside. He placed reliance on Apex Court's decisions in Malkiat Singh and another Vs. Joginder Singh and others 1998 (1) ARC 156, G.P. Srivastava Vs. R.K. Raizada and others 2000 (1) ARC 542 and Smt. Raeesan And others Vs. Prescribed Authority 2008 (26) LCD 563; and this Court's judgments in Saghir Ahmad Vs. District Supply Officer and others 1979 ARC 496, Vidhya Rattan Gupta Vs. Satya Deo Bhardwaj 1996 (1) ARC 134 and Punjab National Bank Vs. IVth Addl. District Judge, Pilibhit and others 1999 (2) ARC 427.
13. Learned counsel appearing for landlord-respondents, however, contended that the scope of consideration of application under Section 5 of Limitation Act and under Order 9 Rule 13 C.P.C. are different. The period under consideration was different and the factors relevant in both matters also vary. Therefore, it cannot be said, what was good for allowing delay condonation application would ipso facto apply to application for setting aside ex parte decree and leaves no option to the Trial Court but to allow such application filed under Order 9 Rule 13 C.P.C. He further submitted that there is no patent error apparent on the face of record in the impugned order, and, in any case, conduct of petitioner shows gross lapses in pursuing the matter before Trial Court hence, this Court may not exercise its extraordinary jurisdiction under Article 226 of Constitution since the impugned order has resulted in substantial justice between the parties.
14. I have seriously considered rival submissions, perused the record and also various authorities cited at the bar and the relevant provisions applicable in the present case.
15. The facts which appears to be undisputed are that the shop in question was in the tenancy of predecessor of petitioner, i.e. Munnu Lal. After the death of Munnu Lal, petitioner and respondents 8 to 13 became tenant of shop in question as joint tenant. They collectively filed their written statement admitting tenancy as also relationship of landlord and tenant between the plaintiff-landlords and defendants in P.A. No. 9 of 1999. However, the claim of bona fide need set up by landlords was seriously disputed. It was also stated in para 11 of written statement that defendant no. 2, namely, Nanhey Lal was running the shop carrying on ancestral business of Sarafa therein. In para 12 of written statement, it was also said that earlier, original tenant Sri Munnu Lal was carrying on the business of sarafa and after his death, mother, sister and brother of defendant no. 1, Satish Chandra, carried on the said business and presently defendant no. 2, Nanhey Lal, i.e. the present petitioner is carrying on the said business. The written statement was verified by all the defendants jointly as is evident from Annexure 2 to the writ petition. Thereafter none of tenants-defendants in suit took any interest in the matter. The petitioner claims to suffer decease of tuberculosis for which he remained under treatment at Katiyar Nursing Home from 20.9.2004 to 8.3.2005. This was after about four years from the date of filing written statement. It is also stated in para 5 of the application filed under Order 9 Rule 13 C.P.C. that due to illness of petitioner he could not attend Court on the date fixed. In para 6 it is said that on the very next date after regaining health i.e. on 9.3.2005 petitioner contacted his counsel who told that due to absence of petitioner he also did not do any pairavi. Thereafter petitioner made an enquiry in the Court and found that ex parte decree was passed on 5.11.2004. The application for recall of ex parte decree thereafter was filed on 10.3.2005.
16. Having considered the rival submissions and the record and authorities cited at the Bar, in my view, the petitioner is not entitled for any relief.
17. The Court below when considered application for condonation of delay in filing application under Order 9 Rule 13 C.P.C. had to consider whether delay in filing application within 30 days from the date of ex parte decree was explained satisfactorily or not. The court has to consider whether there existed a sufficient cause for such non filing. No explanation upto the date of decree is needed but one has to explain why he could not file application within the period of limitation, i.e., 30 days from the date of decree. Meaning thereby it is the period subsequent to 5.11.2004, the justification whereof had to be considered by the Trial Court in respect to application under Section 5. It is in this context, the Court below found that petitioner having shown the documents justifying his explanation of illness between 20.9.2004 to 8.3.2005, he has shown a sufficient cause for his incapacity in filing application within 30 days from the date of ex parte decree and therefore condoned the delay. But, for the purpose of considering justification and sufficient cause for not attending the Court resulting in ex parte decree, the Trial Court has to consider the cause which prevented the applicant from attending the Court on the date fixed in the suit itself which resulted in ex parte decree. The application under Order 9 Rule 13 C.P.C. was to be filed by petitioner himself and, therefore, he has to show his own incapacity in approaching the Court but on the date of hearing when the Court passed ex parte decree due to absence of defendants, he has to show sufficient cause for absence of defendants on the date when the ex parte decree was passed. The period of consideration and factors relevant for the two types of applications therefore are different and not same and overlapping as contended by learned counsel for petitioner. Therefore, the question of recording contradictory findings does not arise. I also do not find any such contradiction.
18. Moreover, when an application for condonation of delay is to be considered, it has to be considered in the light of individual applicant who has come to the Court since he has his own right to move an application for recall of ex parte order etc. and merely because there are more than one litigants jointly interested in the matter or jointly pursuing the matter, an application for condonation of delay by itself can not be rejected for this reason.
19. Now coming to application under Order 9 Rule 13, in the present case, the judgment has been delivered by Trial Court after hearing the counsel for plaintiff only since none appeared to advance arguments on behalf of defendants including the petitioner. It thus cannot be said that judgment has not resulted in an "ex parte decree". The defendants have not appeared on the date of hearing when ex parte decree has been passed, therefore, for all purposes the judgment of Trial Court as resulted in an ex parte decree. It thus could have been recalled if the defendants would have shown "sufficient cause" for not attending the Court on the date of hearing. The petitioner's explanation is that he was ill on 5.11.2004 hence could not appear on the date of hearing resulting in an ex parte decree. In the present case petitioner was represented through a counsel. He has filed his written statement jointly with respondents no. 8 to 13, as long back as on 21.12.2000 through a counsel and thereafter at no point of time appeared before the Trial Court. On various dates fixed for framing issues, evidence etc., neither the petitioner nor any other defendants appeared nor their counsel. The proceedings virtually continued after 21.12.2000 till 5.11.2004 mostly in absence of the defendants or their counsel. It is not the case where petitioner was not represented through a counsel. Once parties are represented through a counsel, in order to show sufficient cause for setting aside an ex parte decree, it has to show sufficient cause for non appearance of counsel also who represented them. Though the petitioner claimed that only he was doing pairavi and no other defendants but could not fortify it since he never appeared after filing a joint written statement of all the defendants. It is a different aspect that in the shop in question, defendants took the stand that petitioner is presently running sarafa business but the fact remains that suit has been contested by all the defendants collectively by filing a common written statement. It is not a case where written statement was filed and verified only by petitioner on behalf of all other defendants. No justification has been shown about non appearance of the counsel also. Here common interest of all the defendants has to be seen in the light of their legal status. The original tenant was father of petitioner. After his death petitioner and the respondents 9 to 13 inherited the tenancy rights. This inheritance is as joint tenants and not as tenants in common.
20. In H.C. Pandey Vs. G.C. Paul 1989 (2) ARC 26, the Apex Court said that on the death of original tenant, subject to any provision to the contrary either negativing or limiting succession, tenancy rights devolve on the heirs of the deceased tenant. The incidence of tenancy are the same as those enjoyed by the original tenant. Thus in other words the heirs succeed the tenancy as joint tenants.
21. The above legal exposition was reiterated and approved by a three-Judge Bench of Apex Court in Harish Tandon Vs. Addl. District Magistrate, Allahabad and others 1991 (1) ARC 220 and in para 23 and 24 of judgment the Court said that it is difficult to hold that after the death of original tenant, his heirs become tenant in common and each one of the heirs shall be deemed to be an independent tenant in his own right. On the contrary, it is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed the tenancy as joint tenants. The Court also referred and followed a Constitution Bench Judgment in Smt. Gian Devi Anand Vs. Jeevan Kumar and others 1985 SCFBRC 229 SC. The Bench also referred to a contrary decision in Mohd. Azeem Vs. District Judge, Aligarh 1985 (2) ARC 85 (SC) and having considered the same in para 27 held that decision in Mohd. Azeem (surpa) does not lay down correct law. It said that decision in H.C. Pandey (supra) lays down the correct law. The above exposition of law has further been reiterated in Ashok Chintaman Juker Vs. Kishore Pandurang Mantri AIR 2001 SC 2251.
22. Therefore, since all the defendants held tenancy as joint tenants, the pairavi in the suit could have been done by any of them and it is not that only one of defendants i.e. the petitioner was entitled or liable to pursue the matter and not others.
23. Be that as it may, I am not confining the issue under consideration only on this aspect that other defendants showing total disinterest in the matter remained aloof except when they jointly filed a single written statement on 21.12.2000 but the fact remains that even the petitioner thereafter did not attend the Court at all. It is his counsel only who was there but on how many dates he attended the Court and since when he stopped attending the Court has not been shown. Nothing has been placed on record to demonstrate it. No reason has been assigned why counsel did not appear on the date of hearing when he was representing all the defendants.
24. It is also not the case of petitioner that he had the knowledge of date of hearing and could have attended the proceedings if he would not have fallen ill. From the facts evident from record, it is evident that for almost four years after filing written statement, petitioner and other defendants did not attend the Court at all, no evidence was adduced, they did not participate in the proceedings when issues were framed. It is not shown that the petitioner was even aware about the date of hearing. There does not appear any intention on his part to attend the proceedings even if he would have well and healthy. Many a times, it has been said that lapses on the part of counsel should not reflect so as to cause an irreparable loss to a litigant. Reliance has been placed by learned counsel for petitioner on certain authorities, referred to above, to pursue this Court so as to treat his absence on 5.11.2004 due to illness as "sufficient cause" to justify to recall ex parte decree without looking anything further. Now I proceed to consider, whether this submission deserves to be accepted or not.
25. In Vidhya Rattan Gupta (supra), a Division Bench of this Court, has decided the case on peculiar facts thereof. In para 5 of judgment, the Court observed that having perused the antecedents of the case, it is obvious that number of adjournments were granted. The Court was reluctant to interfere with such ex parte order. But then it found certain special feature to exercise its discretion as would be evident from following:
"This Court would be reluctant to interfere on such ex-parte order. However, we find only one special feature that on the date fixed the Counsel did reach the Court but only after 12.30 p.m. The averment is he was busy in conducting other case, therefore, he could not reach earlier and when he reached the Court the ex-parte order was already passed by the Court."
26. Having seen various authorities cited on behalf of defendant as not helping him, the Court thereafter in para 7 of the judgment in Vidhya Rattan Gupta (supra) said:
"We feel that on the facts and circumstances of this case and in the interest of justice when defendant was not informed of the date and Counsel did reach Court on the same day and was ready to do the case after 12.30 p.m. it would be too harsh on the appellant not to set aside an ex-parte decree."
27. In the present case, the facts are totally different. Here the petitioner and all other defendants totally left pairavi of the case and having found that none of the defendants is coming at all and this continued for almost four years, on the date of hearing the counsel also did not appear. The judgment in Vidhya Rattan Gupta (supra) therefore would lend no credence to petitioner.
28. In Malkiat Singh (Supra), the facts of the case are that defendant-appellants had engaged a counsel who pleaded "no instructions" on 18.11.1991. Hence Court proceeded ex parte on date. It passed ex parte decree on 8.2.1992. The defendant-appellants claim to acquire knowledge only on 6.6.1992 and immediately thereafter moved an application under Order 9 Rule 13 C.P.C. In this backdrop, the Apex Court also observed, before holding that reason shown by defendant-appellants for absence is sufficient cause that the defendant-appellants were neither careless nor negligent in defending the suit. After the counsel pleaded "no instructions", the Trial Court also did not issue any notice to the defendant-appellants and therefore in these facts and circumstances, the Court found that defendants were not at fault and hence should not be made to suffer.
29. However, in the case in hand the conduct of petitioner does not show an honest and careful pairavi at all. On the contrary, I have no hesitation in observing that petitioner was thoroughly careless and negligent in defending and pursuing the suit proceedings. Unless he would have appeared in subsequent proceedings, after filing written statement to adduce evidence etc., it cannot be said that despite remaining absent for almost four years , still he can be treated a serious litigant in the matter. Therefore, the decision in Malkiat Singh (Supra) would also lend him no support.
30. The decision in G.P. Srivastava Vs. R.K. Raizada (supra) also shows its peculiar facts in which Apex Court ordered for setting aside ex parte order treating absence for sufficient reasons. In para 7 of the judgment, the Court observed:
"If 'sufficient cause' is made out for non appearance of the defendant on the date fixed for hearing when ex-parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits."
31. Careful and well guarded observations of Apex Court in the above decision does not help a litigant like the petitioner and there is nothing which may help him in any manner.
32. In Smt. Raeesan And others Vs. Prescribed Authority (supra) the explanation forwarded for non appearance on the date of hearing when ex parte order passed, was, that the counsel committed a mistake in noting the date and further that case was transferred to another Court and this fact was also not in the knowledge of defendant-petitioners. The aforesaid undisputed facts held to constitute a "sufficient cause" for exercising power of setting aside ex parte decree under Order 9 Rule 13 C.P.C.
33. In Punjab National Bank Vs. IVth Addl. District Judge (supra) the question, if only one of the defendants out of several remained absent and filed application under Order 9 Rule 13 C.P.C. whether decree against all the defendants can be set aside or not, was considered. In view of first proviso to Order 9 Rule 13 C.P.C., the Court held that it has to be set aside in respect to all the defendants, if the case taken up by one of the defendants is that he was not served notice and this fact is found correct. This is necessary to avoid any possibility of coming into existence conflicting decrees in the same matter. This judgment does not help the petitioner at all for the issue in question.
34. So far as the present matter is concerned, I find that in Daya Industries Vs. Sardar Jaswant Singh 1996 AIHC 1452 (Del.) the Court held that ex parte order cannot be set aside where besides the mistake of the Counsel, the party himself was negligent in filing reply within time fixed by the Court. If a party engages a counsel without giving full instructions to him and suffers an adverse order, then blame squarely lies on that party and such party cannot plea that he was prevented in appearing in the Court due to sufficient cause. It is not necessary for the Court or Tribunal or other quasi judicial authority to give a fresh notice in all cases where a party, represented by a counsel or a representative at one stage but neither the party appears in proceedings for years together including the date of hearing nor the counsel appears on the date of hearing after having seen lackadaisical attitude of his client(s) who failed to turn up for doing any pairavi in the case for years together.
35. Looking from any angle, I do not find it a fit case where any interference is called for with the orders impugned in this writ petition.
36. The writ petition is devoid of merits. Dismissed. No costs.
Dt. 20.7.2012 PS