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SUPREME COURT OF INDIA
SUDHANSHU DHULIA, PRASANNA B. VARALE, JJ.
K.B. Lal (Krishna Bahadur Lal) – Appellant
Versus
Gyanendra Pratap and Others – Respondents
Civil Appeal No. 4785 of 2024, Arising Out of SLP (C) No. 14974 of 2022
Decided On : 08-04-2024
Civil Procedure Code, 1908 – Order IX, Rule 7 – Limitation Act, 1963 – Section 5 – Recall of order passed ex-parte – Limitation – Term ‘sufficient cause’ term has to be construed liberally and in order to meet ends of justice, to ensure that deserving and meritorious cases are not dismissed solely on ground of delay – Discretionary power of court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of litigant – Discretion is also not supposed to be exercised in absence of any reasonable, satisfactory or appropriate explanation for delay – Words ‘sufficient cause' in Section 5 of Limitation Act can only be given a liberal construction, when no negligence, nor inaction, nor want of bona fide is imputable to litigant – In case at hand, appellant had sought benefit of Section 5 of Limitation Act, for condonation of a delay of almost 14 years – There was no satisfactory or reasonable ground given by appellant explaining delay – Appellant has been grossly negligent in pursuing matter before trial court – Trial court, revisional court as well as High Court, were correct in dismissing belated claim of appellant. (Paras 9 and 10)
Facts of the case:
In this case main question is of delay. Should an inordinate delay, which has no reasonable explanation be condoned? Whether an application filed by the appellant, under Order IX, Rule 7 of the CPC can be allowed, after a delay of almost 14 years, is the only question before Court. Was there a sufficient cause for filing such a belated application?
Findings of Court:
Explanation offered by appellant which is that Advocate appointed by him did not pursue matter diligently, and then another Advocate was appointed by him who inadvertently forgot to file application does not find support from records. No reason to interfere with impugned order dated 19.05.2022 of High Court of Judicature at Allahabad.
Result : Appeal dismissed.
JUDGMENT :
SUDHANSHU DHULIA, J.
1. Leave granted.
2. The appellant before this court has challenged the order dated 19.05.2022 passed by the High Court of Judicature at Allahabad, by which the petition filed by the appellant under Article 227 of the Constitution of India was dismissed. The appellant had invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, against the order dated 28.03.2022 of the Additional District Judge, Barabanki, who had upheld the order dated 07.10.2021 of the Civil Judge (Jr. Division), Barabanki.
3. The dispute between the parties to this appeal relates to a piece of land situated in village Gharsaniya, Pargana Dewa, Tehsil-Nawabganj, District-Barabanki, which was sold by one Kalawati (Respondent No. 4 herein) to one Mansa Ram (Respondent No. 5 herein), vide sale deed dated 30.03.2006. Thereafter, the property was sold by Respondent No. 5 to the appellant herein vide a registered sale deed dated 13.04.2006.
4. On 22.04.2006, Civil Suit for permanent injunction and cancellation of the sale deed dated 30.03.2006, was filed by the Respondent Nos. 1, 2 & 3 herein before the Civil Judge (Jr. Division), Barabanki. The appellant was impleaded as Defendant No. 3 in the suit. It was contended before the Trial Court by Respondent Nos. 1, 2 & 3 that Respondent No. 4 had no transferrable right or title over the property when the sale deed dated 30.03.2006 was executed in favour of Respondent No. 5 and thus, the property could not have been sold to Respondent No. 5. Respondent Nos. 1, 2 & 3 asserted their claim over the property before the Trial Court stating that they were the bhumidhar & joint owners of the suit property and were also in possession of the same because the predecessor-in-interest of the property was their uncle and he had executed a will deed dated 20.05.1997 in their favour.
5. After service of notice, vakalatnama of the appellant’s counsel was filed on 22.04.2006. During the course of the hearing, an order dated 06.09.2006 was passed by the trial court, by which the suit was to proceed ex-parte against the appellant. In the order dated 06.09.2006, it was recorded by the Trial Court that a perusal of the record would indicate that the appellant was duly served, but he did not file any written statements, and thus, it would be appropriate to proceed ex-parte against him. It is this order of the trial court, which was sought to be recalled by the appellant by filing an application under Order IX, Rule 7 of the Code of Civil Procedure, 1908 (hereinafter “CPC”). However, this application was filed by the appellant on 01.09.2017, i.e. after an inordinate delay of almost 11 years. To explain the delay, the appellant argued that the summons and notice of the case were not received by him and that the advocate appointed by him belonged to another city, who did not pursue the case diligently, and it was only in the year 2011, when he inspected the case file that he came to know about the order dated 06.09.2006. Even here as to why it took him another 6 years to file the application, as he had the knowledge in any case in the year 2011, has not been explained. But this is not enough. Even this application, filed in the year 2017, was admittedly not pressed before the Trial Court by the appellant, for the reason that correct facts were not mentioned in the application. Finally, another application under Order IX, Rule 7 of the CPC came to be filed yet again by the appellant on 23.11.2020.
6. This second application filed by the appellant was dismissed by the trial court vide order dated 07.10.2021. What weighed in with the trial court, while dismissing the appellant’s application under Order IX, Rule 7 of the CPC, was the fact that the appellant was duly served and had filed vakalatnama of his counsel in April 2006 but did not file written statements in time and on 12.07.2011 an application was filed by the appellant, seeking permission to file the written statement
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