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DILIP RAOSAHEB DESHMUKH, J.
Laxmi Prasad Dubey
Versus
Gulam Ali and Ors.
Civil Revn. No. 768 of 1999
Decided on : 21-11-2007.
Revision - Application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 - Section 5 of the Limitation Act, 1963 - [Order 9, Rule 13 of the Code, Section 5 of the Limitation Act, 1963] - The judgment discusses the application under Order 9, Rule 13 of the Code for setting aside an ex parte judgment and decree, and the court's consideration of the delay in filing the application under Section 5 of the Limitation Act. The court highlights the legal provisions of Order 9, Rule 13 of the Code and Section 5 of the Limitation Act, emphasizing the liberal construction of 'sufficient cause' and the discretion of the court in setting aside ex parte decrees.
Fact of the Case:
The case involves a dispute over property, with the defendants contesting since 1967. The defendants faced prolonged litigation, including an ex parte judgment and decree, due to their counsel's plea of no instructions without informing the defendants. The defendants argued that the delay in filing the application under Order 9, Rule 13 of the Code was not deliberate, mala fide, or to gain time, and sufficient cause was shown for the delay.
Finding of the Court:
The court found that the rejection of the application under Section 5 of the Act and the application under Order 9, Rule 13 of the Code by both the lower appellate Court and the trial Court was pedantic and hyper-technical, resulting in a failure of justice. The court held that the delay was not deliberate, and sufficient cause was shown for condonation of delay. The court set aside the impugned orders and allowed the application to set aside the ex parte decree, restoring the suit to file.
Issues: The issues revolved around the rejection of the application under Section 5 of the Act and the application under Order 9, Rule 13 of the Code, the sufficiency of cause for condonation of delay, and the nature of the litigation and stakes involved for the defendants.
Ratio Decidendi: The court emphasized the liberal construction of 'sufficient cause' under Section 5 of the Act and Order 9, Rule 13 of the Code, highlighting the discretion of the court to advance substantial justice. The court held that the rejection of the applications by both the lower appellate Court and the trial Court was pedantic and hyper-technical, resulting in a failure of justice.
Final Decision: The civil revision was allowed, and the impugned orders were set aside. The application to set aside the ex parte decree was allowed, and the suit was restored to file. The trial Court was directed to proceed with the suit in accordance with the law from the stage as it existed on the date of the ex parte proceeding.
2. This case demonstrates how a pedantic and hyper-technical view taken by the Court while considering an application under Section 5 of the Limitation Act, 1963 (hereinafter referred to as "the Act") for condoning the delay in filing an application under Order 9, Rule 13 of the Code of setting aside ex parte judgment and decree by the trial Court has resulted in complete failure of justice. It is, therefore, necessary to unfold a brief history of the litigation, which the defendants are contesting since 1967. The defendants Laxmi Prasad (revisioner), Badri Prasad and Rampyari are the two sons and the widow of Shiv Shankar Prasad respectively. In 1963, Laxmi Prasad and Badri Prasad had purchased the suit property, i.e., 7.56 acres of land situated in Village Chandipara, Tahsil Janjgir, District Bilaspur (now District Janjgar) from one Abdul Newaz through a registered sale-deed and obtained possession. The names of Laxmi Prasad and Badri Prasad were mutated over the suit lands in the revenue records. In November, 1966, Abdul Newaj died. His grand daughter Ramjan Bi fraudulently got her name mutated over the suit lands. Proceedings under Section 145 of the Code of Criminal Procedure were initiated in which the S.D.O. declared Ramjan Bi in possession. Since the criminal revision preferred against the order passed by the S.D.O. also filed. Laxmi Prasad and his brother Badri Prasad filed Civil Suit No. 4-A/70 against Ramjan Bi before the 1st Civil Judge Class-II, Janjgir for obtaining possession of the suit lands, which was decreed in their favour and against Ramjan Bi on 5-5-1971. First Appeal No. 24-A/72 before the IIIrd Additional District Judge, Bilaspur preferred by Ramjan Bi was also dismissed on 23-10-1972. Ramjan Bi preferred Second Appeal No. 985/72 in the High Court of Madhya Pradesh, which was also dismissed on 23-7-1979. Even after such prolonged litigation, Laxmi Prasad and Badri Prasad had no respite because one Raj Bi had filed Civil Suit No. 4-A/72 before the Ist Civil Judge Class-I, Bilaspur claiming permanent injunction against defendants Laxmi Prasad, Badri Prasad and Shiv Shankar Prasad and also impleading Ramjan Bi as defendant. This civil suit was registered as Civil Suit No. 110-A/88 before the Civil Judge Class-II, Bilaspur. The defendant Ramjan Bi died during the pendency of Civil Suit No. 4-A/72 and the proceedings continued for bringing her legal representatives on record. On 16-3-1990, the civil suit was fixed for reply on the application under Order 22, Rule 4 of the Code. Instead of filing reply, Shri S. M. Mendheker, counsel for the defendants pleaded no instructions. Neither the counsel informed the defendants about such a step nor any notice was given by the Court to the defendants that their counsel had pleaded no instructions. Shockingly, the Court proceeded ex parte against the defendants on 16-3-1990 and passed an ex parte judgment and decree on 23-7-1990.
3. On the date of the ex parte judgment and decree, the revisioner/defendant Laxmi Prasad was away from Bilaspur in Government Services as Tahsildar while brother Badri Prasad used to look after the agriculture. The
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