Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 6325 of 2019 Petitioner :- Rajaram Pal And Another Respondent :- Narendra Pratap Singh Counsel for Petitioner :- Ram Milan Mishra Counsel for Respondent :- Ram Samujh Singh
Hon'ble Manoj Kumar Gupta, J.
The instant petition is directed against the order dated 1.10.2016 passed by Trial Court in Misc. Case No. 127 of 2012 (Rajaram Pal and another Vs. Narendra Pratap Singh) rejecting the application filed by the petitioners for condonation of delay and that under Order 9 Rule 13 CPC praying for setting aside the ex-parte decree dated 18.05.2005 in Original Suit No. 433 of 2001 as well as the order dated 25.7.2019 passed by District Judge, Jaunpur in Civil Revision No. 47 of 2018 dismissing the revision.
Original Suit No. 433 of 2001 was instituted by the plaintiff- respondent against the petitioners for specific performance of an agreement for sale. It was decreed ex-parte on 18.05.2005. The petitioners filed an application under Order 9 Rule 13 of CPC for setting aside the ex parte decree alongwith delay condonation application. The Trial Court by order dated 1.10.2016 rejected the delay condonation application as well as application under Order 9 Rule 13 CPC Aggrieved thereby, the petitioners filed Civil Revision No. 47 of 2018, which has been dismissed by the District Judge, Jaunpur by impugned order dated 25.7.2019.
The petitioners in their application under Order 9 Rule 13 of CPC admit that they duly entered appearance in the suit through counsel. Their case was that while they were preparing for filing of written statement, the plaintiff approached them and assured that he would get agreement for sale canceled in order to avoid unnecessary expenses. The petitioners believing the plaintiff, stopped attending the proceedings. It is also stated in the application that they heard rumors in the village for the first time on 1.7.2012 that the plaintiff had succeeded in obtaining ex-parte decree against them and thereafter they got the record inspected on 2.7.2012 and filed application under Order 9 Rule 13 CPC on 3.7.2012 alongwith delay condonation application.
The Trial Court has noted in its order that in the suit, despite due service of summon upon the petitioners, they did not appear. Consequently on 5.12.2002 an order was passed to proceed ex-parte against them. On subsequent dates, the plaintiff filed his evidence. Thereafter, a date was fixed for argument. The petitioners appeared on that date and filed an application 30-Ga dated 10.10.2003 and prayed for recall of the order dated 5.12.2002. The application was allowed subject to payment of cost and the petitioners were given time to file written statement fixing 21.1.2005. The petitioners did not pay the cost nor filed any written statement and also did not appear in the proceedings resulting in passing of ex-parte decree against them on 18.05.2005. It was followed by filing of execution application, which was registered as Case No. 8 of 2006. In execution case, again the petitioners were duly served with summons but they did not file any objection. Ultimately, sale deed was executed by the Executing Court in favour of the plaintiff on 18.02.2010. The petitioners filed application under Order 9 Rule 13 CPC with a delay of about 7 years. The Trial Court found no substance in the explanation furnished by the petitioners for inordinate delay of 7 years in filing the restoration application. The Revisional Court has concurred with the findings recorded by the trial court.
Learned counsel for the petitioners submitted that courts below had taken a very technical view in rejecting the delay condonation application and restoration applications. It is urged that high stake was involved as the suit property is a valuable one. Therefore, the courts below ought to have allowed the restoration application so as to permit the petitioners to contest the suit on merits. In support of his submission, he has placed reliance on a judgment of Madras High Court in M. Sakthivel Vs Sankareswari decided on 15.7.2015 and also a judgment of our Court in Om Prakash Vs. IIIrd ADJ, Rampur and others, in 2010(8) ADJ 782.
On the other hand, learned counsel for the plaintiff-respondent submitted that the story set up by the petitioners was wholly false. There was no assurance by the plaintiff that he would withdraw the suit. It is submitted that delay of 7 years in filing application was fatal. It is further submitted that even in execution proceedings, the petitioners were duly served, but even then they did not appear in the court.
It is not disputed before this Court that the trial court, after being satisfied that the petitioners had been duly served with summons, passed order on 5.12.2002 for proceeding ex-parte against them. At the stage of final hearing, the petitioners suddenly appeared in the proceedings and filed application 30-Ga seeking recall of order dated 5.12.2002. The trial court taking lenient view allowed the said application subject to payment of cost and granted time to the petitioners to file written statement. However, the petitioners did not avail the said opportunity of filing written statement nor paid the cost. On the other hand, they once again absented themselves from the proceedings resulting in passing of ex-parte decree dated 18.5.2005 against them. It is also not in dispute that the plaintiff-respondent applied for execution of ex parte judgment and it was registered as Execution Case No. 8 of 2006. The specific finding recorded by the trial court is that even in execution proceedings, the petitioners were duly served with summons but they did not file any objection. Admittedly, in execution proceedings, the Executing Court had executed sale deed in favour of the plaintiff on 18.2.2010. The petitioners filed application for restoration on 3.7.2012 i.e. after lapse of seven years. The Courts below have disbelieved the cause shown by the petitioners for their non appearance and the explanation furnished for the delay. Even this Court is unable to believe that the plaintiff, who had instituted suit for specific performance, wherein his specific case was that he had paid Rs. 95,000/- as earnest money leaving only Rs. 5000/- to be paid at the time of registration of sale deed, would extend assurance to the petitioners that he would get his suit dismissed in order to avoid incurring cost in litigation. Likewise the explanation given by the petitioners regarding date of knowledge is also highly improbable. The only bald assertion is that the petitioners came to know of ex-parte decree when they heard rumors in the village on 2.7.2012. The name of the person from whom they acquired such knowledge has not been disclosed. Indisputedly, sale deed in pursuance of decree had already been executed in favour of the plaintiff long back. It is evident on the face of record that the petitioners had deliberately absented themselves from the suit proceedings leaving no other option with the court but to pass an ex-parte decree. This Court finds no illegality in the concurrent findings of the courts below that the petitioners had full knowledge of the pendency of suit and they had failed to offer satisfactory explanation for the inordinate delay of seven years.
The Judgment of Madras High Court cited by the learned counsel for the petitioners refers to various judgments of the Supreme Court wherein it is held that the phrase 'sufficient cause' should receive a liberal construction so as to advance substantial justice. Where there is no negligence, inaction or want of bonafide on part of the party, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence or not.
The judgment of the Madras High Court provides that while examining whether sufficient cause is made out to set aside the decree or not, it is to be seen whether party had acted with due diligence or not. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. Law nowhere requires that in every case when the decree is passed ex-parte then in order to do substantial justice between the parties, such decree should be set aside so as to permit defendant to contest the case on merits, even if the explanation furnished is found to be false and the party guilty of gross negligence.
The submission advanced in this regard by counsel for the petitioner is thus unacceptable to this Court. As noted above, in the facts of the instant case, the courts below have rightly held that the petitioners have failed to furnish satisfactory explanation for inordinate delay in filing the application under Order 9 Rule 13 CPC as they had full knowledge of the suit, but were grossly negligent in prosecuting the case.
This Court finds no jurisdictional error nor perversity in the findings recorded by the courts below to warrant interference in exercise of power under Article 227 of the Constitution. The petition lacks merit and it is accordingly dismissed.
Order Date :- 26.8.2019 SKS (Manoj Kumar Gupta, J)