Nagesh Ram v. Ram Moorthy And 38 Others

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE AJOY KUMAR MUKHERJEE CO/8/2022 NAGESH RAM ... PETITIONER

Versus

RAM MOORTHY AND 38 OTHERS ... RESPONDENTS/ OPPOSITE PARTIES For the petitioner : Mr. K.M.B Jayapal For the respondents/ :Mr. Gopala Binnu Kumar Opposite parties Heard on : 25.08.2022 Judgment on : 26.08.2022 AJOY KUMAR MUKHERJEE, J.

1.

Being aggrieved and dissatisfied by impugned order No. 48 dated 07.03.2022 passed by the learned Civil Judge, Senior Division, Port Blair in Misc. Judicial Case No. 04 of 2017 the petitioner preferred this application under Article 227 of the Constitution of India.

2.

At the outset background of the present case need to be mentioned. One Appanna was having land beaing survey No. 20, 22, 194, 23, 26, 27, 94, 21, 25, 96 and 100 and after his death

in the year 1980, his three children namely Paras Ram, Basant Ram and Saraswati became occupier of 1/3rd share each in the said property. Subsequently, Saraswati (since deceased) filed a partition suit against her aforesaid two brothers claiming her share in the aforesaid properties. Summon pertaining to the said suit was duly served upon the defendants/ brothers and the defendants even after receipt of summon didn't contest the suit and the suit was decreed ex-parte on 11.07.1984 declaring Saraswati's 1/3rd share in the said suit property. Subsequently, said Saraswati (since deceased) filed an application on 05.07.1988 for final decree, but nothing yielded and therefore, by the order of the Court, Advocate Commissioner was appointed on 17.12.1988. On 14.02.

2001, the Advocate Commissioner submitted his report and the report of Advocate Commissioner was accepted by the Court and final decree was drawn on 08.02.2002. After almost ten years of passing final decree in the year 2012 the present petitioner who is the son of aforesaid brother/defendant, Paras Ram (one of the son of original owner Appanna) filed a suit being OS No. 71 of 2012 for declaring the final decree dated 08.02.2002 as nullity, before Civil Judge Senior Division. Subsequently, being aggrieved by an order dated 29.11.2016 passed by the learned District Judge, Andaman & Nicobar Islands, in connection with said suit, the petitioner preferred the Civil Revision before Hon'ble High Court at Calcutta being CO/061/2016 and CO/062/2016.

High Court while disposing the said Civil Revision applicaiotn opined that against an ex-parte decree, only remedy which is left for the petitioner is to take step in accordance with provision of Order IX Rule 13 of Code of Civil Procedure (CPC) and as such, Court dismissed the revisional application but had given liberty to the petitioner for taking appropriate steps. After the aforesaid order of Hon'ble High Court, the petitioner herein withdraw the said suit being OS No. 71 of 2012 and filed an application under Order IX Rule 13 of the CPC along with an application under Section 5 of the Limitation Act for setting aside the final decree dated 08.02.2002 passed by the Court. Learned Trial Court upon consideration of the material on record including evidence adduced by the petitioner for condonation of delay passed the impugned order on 07.03.2022 rejecting both the applications under Section 5 of the Limitation Act as well as application under order IX Rule 13 CPC.

3.

Mr. Jayapal, learned counsel appearing on behalf of the petitioner submits that from the impugned order itself, it is clear that from the very beginning it was the mind set of learned Trial Court to reject the petitioner's both the applications i.e. application under Section 5 of the Limitation Act as well as application under Order IX Rule 13 of the CPC. The petitioner herein being the successor in interest of original defendant No. 1 (Paras Ram) was unaware of the ex-parte decree dated

08.02.2002 passed in Title Suit No. R2 of 1983 and even late Paras Ram was not having knowledge of appointment of partition commissioner and report of partition commissioner having been submitted before the Trial Court which was considered part and parcel of final decree. It is only during April 2012 for the first time the petitioner had come to know that exparte decree dated 08.02.2002 had been passed on the basis of report of the partition commissioner. Immediately thereafter under misconception of fact and law, petitioner filed Title Suit No. 71 of 2012 challenging the ex-parte decree dated 08.02.2002 on the ground of practicing fraud by Saraswati. 4.

Mr. Jayapal, further submits, in fact there is no consideration made in the impugned order as regards sufficient cause having been proved by the petitioner herein to approach the Court below in filing application under Order IX Rule 13 of the CPC. The Trial Court in fact exceeded the jurisdiction as in one hand said court simply rejected petition under Section 5 of the Limitation Act 1963 and on the other hand entered into the merit of the cause shown in filing the application under Order IX Rule 13 of the CPC. It is the trite law that if condonation of delay is not considered by the Court of law, the effect would be that main application is not being entertained, but the learned Trial Court while passing the impugned order entered into that arena as if the said Court is deciding the application under

Order IX Rule 13 of the CPC. According to Mr. Jayapal this is absurd and an example of complete non application of mind by the Trial Court. The learned Trial Court has completely failed to consider the settled position of law that if there is a merit demonstrated by petitioner herein which entitle such party to take participation in the proceeding the aspect of condonation of delay needs to be considered very leniently and a pragmatic approach ought to have taken by the learned Trial Court.

Learned Trial Court nowhere in the impugned order held any reason for not allowing the application under Section 5 of the Limitation Act as there are sufficient material including testimony of the petitioner, which suggest that such case is a fit case where the Court ought to have exercised discretion to condone the delay to decide the application filed under Order IX Rule 13 CPC. In fact learned Trial Court failed to consider the evidence of the petitioner, who in support of application under Section 5 of Limitation Act, 1963 explained with the delay occasioned and the Court below failed to appreciate that the report of the partition commissioner was challenged as a whole and there is nothing to show that the partition commissioner had served notice upon the defendants or their successor in interest.

5.

Mr. Gopal Binnu Kumar, learned advocate appearing on behalf of the respondents submits that the notice of the suit

filed by Saraswati was duly served upon all the defendants, but the defendants didn't prefer to contest the suit, since there right was not affected, if Sawaswati's 1/3rd share in suit property be declared by way of preliminary decree and accordingly the suit was proceeded ex-parte and ex-parte decree was passed in favour of Saraswati on 11.07.1984. Subsequently, Saraswati filed an application for passing final decree and Advocate Commissioner was appointed and the Advocate Commissioner submitted his report on 14.02.2001 and in the said report it has been categorically mentioned that the Advocate Commissioner served notice on 08.01.2001 to 13 persons including the petitioner who were all entitled for the shares. Subsequently, said report of Advocate Commissioner was accepted and the final decree was passed on 08.02.2002.

After passing the final decree, Saraswati applied for mutation of the said land and notices were again issued by the Tehsildar to the petitioner and the other opposite parties and even after receiving said notice, they did not file any objection before the Tehsildar and the property was mutated in favour of Saraswati (since deceased) in 2005.

6.

Mr. Kumar argued that the application under Order IX Rule 13 of CPC was filed after a period of 15 years from the date of passing final decree dated 08.02.2002. He further submits that the application under Order IX Rule 13 of the CPC filed by

the petitioner was on the ground of practicing fraud and misrepresentation by Saraswati, which is beyond the scope of application under Order IX Rule 13 of the CPC, therefore, not maintainable.

7.

Mr. Kumar submits that the application filed under Section 5 of Limitation Act, nowhere the petitioner stated the exact number of days/years to be condoned which is actually filed after 15 years. On the strength of such frivolous application no relief can be granted to the petitioner. 8.

Mr. Kumar further submits that apart from the present petitioner, all other opposite parties accepted preliminary decree as well as final decree and therefore at the instance of the petitioner to set aside the decree, which is made final against the opposite party is non est and illegal. The preliminary decree was not challenged in the application under Order IX Rule 13 and in an application under Order IX Rule 13, the petitioner is to satisfy the Court that the summons was not duly served or that he was prevented by any sufficient cause for appearing when the suit was called on for hearing. He further submits there is no requirement under the law for issuance of fresh notice to make the decree absolute, while applying for final decree. Moreover, the provision of Order IX Rule 13 of the CPC is not applicable where a challenge thrown to set aside only the final decree.

9.

He further contended that an application under Section 5 of the Limitation Act can be entertained by Court only when sufficient cause was pleaded in the application and supported by cogent reasons. There is no pleading in the said application pertaining to total years of delay and the reasons of delay and therefore, such frivolous application has been rightly dismissed by the Trial Court.

10.

Considered submissions made by both the parties. Record shows that the preliminary decree was not under challenge which was passed ex-parte on 11.07.1984. It is also apparent that on the basis of prayer made by the plaintiff/Saraswati, the final decree in connection with the said suit was passed on 08.02.2002. Record further reveals that almost after ten years the petitioner filed Other Suit No. 71 of 2012 for declaring final decree dated 08.02.2002 as nullity. It further reveals that being aggrieved by one order passed in continuation of the said suit, the petitioner preferred revisional application before the Learned District Judge and thereafter Civil Revision was preferred before the Hon'ble High Court and the High Court vide its order dated 12.01.2017 held that the only remedy lies to the petitioner is to file application under Order IX Rule 13 of CPC and accordingly liberty was given to the petitioner and on the basis of such order passed by the High Court, the petitioner had withdrawn the OS No. 71 of 2012 and filed application under Order IX Rule 13 of

Code along with an application under Section 5 of the Limitation Act and learned Trial Court after taking evidence dismissed both the application under Section 5 of the Limitation Act and application under Order IX Rule 13 of the CPC, by the impugned order, against which present revisional application has been preferred.

11.

There is no dispute in the proposition of law that on the basis of the order passed by High Court when the petitioner filed Misc. Case under Order IX Rule 13 CPC along with Section 5 of the Limitation Act, the Trial Court ought to have taken up the application under Section 5 of the Limitation Act separately and if the Application under Section 5 of the Limitation Act succeeds then only to proceed with the Misc. Case filed under Order IX Rule 13 CPC. Similarly if the application under Section 5 fails to survive, then needless to mention that the application under Section 5 as well as application under Order IX Rule 13 both are liable to be dismissed.

12.

In the present context, I am to pounder only with the factual position of law in respect of prayer for condonation of delay filed by the petitioner under Section 5 of the Limitation Act before the court below.

13.

At the cost of repetition it is to be mentioned that the final decree was passed on 08.02.2002 and the suit for cancellation

of the decree being OS 71 of 2012, was filed in the year 2012. So petitioner at least was required to explain sufficient casue, in support of his application under Section 5 of the Limitation Act for condonation of delay, as to what prevented him to file the said suit challenging the decree or to file Misc. Case under Order IX Rule 13, within the statutory period after passing the aforesaid decree dated 08.02.2002.

14.

Petitioner in this context has contended that at no point of time before 2012 it was within his knowledge that the exparte final decree was passed on 08.02.2002 and it is only during April 2012 for the first time petitioner came to know about the ex-parte decree. In support of said long delay of not knowing the fact of passing decree for about ten years has not been explained in its prayer for condonation of delay. The counsel for the petitioner has not denied that summon of TS No. 2 of 1983 was served upon them. Moreover, from the commissioner's report as brought to the notice of the Court by the counsel for the respondent that commissioner had issued notice upon the petitioner and the opposite parties on 08.01.2001 and the present petitioner received the said notice by putting his signature. So there is sufficient reason to presume that the petitioner was all along aware about the proceeding of the final decree. Moreover, it is submitted on behalf of the respondent that after passing the final decree,

plaintiff/ Saraswati applied for mutation for her allotted land and therefore notice in Form No. J & K was issued by Tehsildar, Port Blair upon the petitioner in terms of the special regulation, but the petitioner did not choose to file objection and as such Saraswati's declared share in the final decree was mutated in her name in the year 2005. Accordingly, all these go to show that the petitioner was all along aware about the final decree but he did not prefer either to challenge the final decree or to file application for setting aside the decree prior to 2012. In the case of Esha Bhattacharjee vs. Raghunath PMN.

Academy & others reported in (2013) 12 SCC 649 the Hon'ble Supreme Court held that 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 and the inordinate delay warrants strict approach whereas the second calls for a liberal delineation. Supreme Court further held that if explanation offered for delay 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.

15.

It is true that the application for condonation of delay is to be viewed leniently so that the dispute between the parties may be disposed of on merit and not to be rejected on the ground of technicalities.

16.

Once a valuable right had accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will not be prudent or reasonable to take away that right on the mere asking of the petitioner, particularly when the petitioner has filed an application after a delay of at least ten years and the delay occurred directly as a result of negligence, default or inaction of the petitioner.

17.

In view of the above and in the absence of any sufficient cause to explain the delay which occurred for at least ten years for challenging the decree which was passed in 2002, I am constrained to hold that the ultimate finding of the Trial Court in dismissing the petitioner's application under Section 5 of the Limitation Act does not call for any interference. As application for condonation of delay under Section 5 of the Limitation Act is liable to be dismissed, being not sustainable in law, the Misc. Judicial Case No.4 of 2017 filed under Order IX Rule 13 of the CPC, is also liable to be dismissed. Accordingly, the ultimate finding of the learned Trial Court in connection with the impugned order succeeds and as such CO/8/2022 is hereby dismissed.

18.

Urgent photostat certified copy of this order, if applied for, shall be supplied to the parties upon compliance of all formalities.

(AJOY KUMAR MUKHERJEE, J.)