& Ors. Vs. Kunwar Lal & Ors.  INSC 551 (27 July 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5875 OF
2005 Bhagmal & Ors. .... Appellants Versus Kunwar Lal & Ors. ....
The order passed by the High Court allowing a Civil Revision and
thereby restoring the order of the Trial Court is challenged herein. A Civil
Suit bearing No. 321-A of 1984 came to be filed by the respondents against the
father of the petitioner No. 1 namely Kallu. Kallu died during the pendency of
the suit and his legal heirs were brought on record. The suit was for
declaration of title, possession and permanent injunction against the
appellants/defendants in respect of the house in dispute. The Court proceeded
ex-parte and the decree came to be passed. It is only when the execution
proceeding started that the appellants/defendants allegedly came to know about
the decree and moved an application under Order IX Rule 13 2 read with Section
151 of the Civil Procedure Code (hereinafter called `CPC' for short) for
setting aside the ex-parte decree.
According to the appellants/defendants, this application was moved
within 30 days from the date of their knowledge of ex-parte decree. The appellants/defendants
had pointed out that there was a compromise effected on 10.12.1983, which was
an out-of- Court settlement, wherein it was agreed between the parties that the
respondent No. 1/plaintiff would withdraw the suit on account of the understanding
having been arrived at between the parties. The appellants/defendants further
pleaded that since it was the understanding between the parties that the
respondent No. 1/plaintiff would withdraw the suit or get it dismissed, they
did not attend the further proceedings, which the respondent No. 1/plaintiff
continued surreptitiously and hence they did not even know about the ex-parte
order and the decree passed against them. It was the stand of the
appellants/defendants that since the application had been moved within 30 days
from the knowledge, a separate application for condonation of delay was not 3
required. The application under Order IX Rule 13 was dismissed by the Trial
Court, which held the said application to be barred by time. A Misc. Civil Appeal
came to be filed in the Court of District Judge, Bhopal against that order.
There was some delay in filing the said appeal and, therefore, the application
under Section 5 of the Limitation Act for condonation of delay was also filed.
The appellate Court held that the application filed by the
appellants/defendants under Order IX Rule 13 deserved to be allowed and held
that the Trial Court had erred in law in not allowing the application. The
appeal came to be allowed and the appellate Court directed the Trial Court to
decide the case on merits after hearing the parties.
A Civil Revision came to be filed under Section 115 CPC before the
High Court. The High Court took the view that the application filed by the
appellants/defendants under Order IX Rule 13 was barred by time and the
appellate Court had not recorded any finding on the question as to whether the
filing of the application under Section 5 of the Limitation Act was necessary
or not and, therefore, the appellate Court had exceeded its jurisdiction in
allowing the 4 application without condoning the delay. On that count, the
impugned order of the appellate Court was set aside and that of the Trial Court
Chaudhary, learned Senior Counsel appearing on behalf of the appellants invited
out attention to the order of the appellate Court, by which the Order IX Rule
13 application of the appellants/defendants was allowed. The learned Senior
Counsel pointed out that the appellate Court had, on merits, discussed all the
issues and had come to the finding that there indeed was a compromise effected
in between the parties, in which there was an understanding arrived at that the
respondent No. 1/plaintiff would withdraw his suit in pursuance of the
understanding between the parties.
Senior Counsel also pointed out that, therefore, the appellants/defendants
never attended the Court after 10.12.1983. This was tried to be countered with
Shri M.P. Acharya, the learned Counsel appearing on behalf of the respondents
that the order sheet of the suit showed as if the appellants/defendants were
present even after 10.12.1983. Our attention was invited to the order sheets of
the dates after 10.12.1983, wherein it was recorded `parties as before'. On
that basis Shri Acharya contended that 5 the appellants/defendants remained
present in the Court and they had the knowledge of the proceedings. However,
our attention was also invited to the finding by the appellate Court that those
entries could not be relied upon because admittedly there were no signatures of
the parties on any of those order sheets. Therefore, one thing was certain that
the appellate Court was right in holding that due to the compromise effected,
the appellants/defendants did not attend the suit and, therefore, were not knowing
about the proceedings at all.
The appellate Court also has pointed out that the evidence was led
before the Trial Court in support of the application under Order IX Rule 13 and
in that, the appellants/defendants had examined the witnesses like Rambharose
(AW-1), Shanta Bai (AW-2), Jabia (AW-3), Babulal (AW-4), Bhagmal (AW-5), Genda
Lal (AW-6), Dashrat Singh (AW-7), Bhurra @ Aziz (AW-8) and Nand Kishore (AW-9).
The appellate Court also recorded the finding that the compromise deed was also
got proved by the appellants/defendants in those proceedings through the
witnesses who asserted that the compromise deed bore their signatures. The
witnesses went on to say 6 that the compromise deed was also signed by the
present respondents. The appellate Court, therefore, rightly came to the
conclusion that the appellants/defendants were justified in not attending the
Court and that they did not even know about the decree having been passed and,
therefore, the delay in presenting the application was also justified. The
appellate Court also referred to the evidence of respondent Kunwar Lal and came
to the conclusion therefrom that indeed a compromise deed was executed between
the parties. The appellate Court also went on to express that the inference by
the Trial Court that the compromise deed was doubtful, was also not correct.
The appellate Court has also dealt with the cross objections raised before it
by the present respondents to the effect that the compromise deed (Exhibit A-1)
was prepared fraudulently. The appellate Court has rejected that contention in
the cross objections and in our opinion, rightly.
This well considered order of the appellate Court came to be
interfered with by the High Court solely on the ground that there was no
application for condonation of delay made by the appellants/defendants before
the Trial Court in support of their application 7 under Order IX Rule 13 CPC.
The High Court observed that the appellate Court had not recorded any finding
on the question as to whether the filing of the application under Section 5 of
the Limitation Act was necessary or not and went on to decide the application
on merits and, therefore, it had exceeded its jurisdiction. The High Court also
commented on the fact that the ex-parte decree was decided on 19.4.1985, while
the application for setting aside the ex-parte decree was filed on 8.7.1988 and
that no application for condonation of delay under Section 5 of the Limitation
Act was filed.
Relying on Article 123 of the Limitation Act, the High Court took
the view that the application ought to have been filed within 30 days from the
date of passing of the decree and since it was not so filed, at least a
condonation of delay application should have been made under Section 5 of the
Limitation Act and, therefore, in the absence of prayer for condonation of
delay, the appellate Court could not have allowed the application under Order
IX Rule 13.
In our opinion, the High Court was not justified in taking a
hypertechnical view. We have seen all the 8 orders. It is quite clear from the
Trial Court's order that the Trial Court entertained the application on merits.
The Trial Court undoubtedly has referred to the reply of the respondents to the
effect that the application for setting aside the ex-parte decree was beyond
the limitation. However, the view taken by the Trial Court was based more on
the merits. In fact, it went on to record the finding that there was no
compromise and the theory of compromise and delay on account of that was not
acceptable. The Trial Court has more or the less based its findings regarding
delay on the basis of the order sheets. That was not right as the order sheets
nowhere bore the signatures of the parties. They were mechanically written
mentioning "parties as before". Therefore, the Trial Court did not
throw the application under Order IX Rule 13 merely on the basis of the fact
that no application for condonation of delay was made. It went on to consider
the delay aspect as well as the merits and even allowed the parties to lead evidence.
It is to be seen here that the question of delay was completely interlinked
with the merits of the matter. The appellants/defendants had clearly pleaded
that they did not earlier come to the Court on account of the fact 9 that they
did not know about the order passed by the Court proceeding ex-parte and also
the ex-parte decree which was passed. It was further clearly pleaded that they
came to know about the decree when they were served with the execution notice.
This was nothing, but a justification made by the appellants/defendants for
making the Order IX Rule 13 application at the time when it was actually made.
This was also a valid explanation of the delay. The question of filing Order IX
Rule 13 application was, in our opinion, rightly considered by the appellate
Court on merits and the appellate Court was absolutely right in coming to the
conclusion that appellants/defendants were fully justified in filing the
application under Order IX Rule 13 CPC at the time when they actually filed it
and the delay in filing the application was also fully explained on account of
the fact that they never knew about the decree and the orders starting the
ex-parte proceedings against them. If this was so, the Court had actually
considered the reasons for the delay also.
such circumstances, the High Court should not have taken the hyper-technical
view that no separate application was filed under Section 5. The application
under Order IX Rule 13 CPC itself had all the 10 ingredients of the application
for condonation of delay in making that application. Procedure is after all
handmaid of justice. Here was a party which bona fide believed the assurance
given in the compromise panchnama that the respondent No. 1/plaintiff would get
his suit withdrawn or dismissed. The said compromise panchnama was made before
the elders of the village.
was also effected, displaying that compromise.
witnesses were also examined. Under such circumstances, the non-attendance of
the appellants/defendants, which was proved in the further proceedings, was
quite justifiable. The appellants/defendants, when ultimately came to know
about the decree, had moved the application within 30 days. In our opinion,
that was sufficient.
Shri Acharya, learned Counsel appearing on behalf of the
respondents tried to argue on the basis of Article 123 of the Limitation Act.
However, in our opinion, Article 123 cannot be, in the facts of this case
persuade us to take the view that the limitation actually started from the date
of knowledge, as the appellants/defendants had no notice of the decree or the
proceedings which the respondents had promised to 11 terminate. Shri Acharya
then tried to persuade us by suggesting that unless the application was filed
for condonation of delay, the court had no jurisdiction to entertain the
application for setting aside the decree.
based this contention on the basis of a reported Ors. [2009 (6) SCC 194] and
more particularly, the observations made in para 70 therein. In our opinion,
the facts of this case were entirely different, as it was held in that case
that the appellant had knowledge of passing of the compromise decree and yet
she had not filed the application for condonation of delay. That is not the
situation here. Even in this case, there is a clear cut observation in para 57,
as follows:- "However, in a case where the summons have not been served,
the second part shall apply."
was considering Article 123 of the Limitation Act. In our opinion, in this
case, the limitation must be deemed to have started from the date when the
appellants/defendants came to know about the decree on 22.6.1988. An
application under Order IX Rule 13 was filed within 30 days from that date and,
therefore, it is clear that it was within time. At any rate, even if it held
that the limitation started 12 from the date of decree, there was a
satisfactory explanation of the delay if any.
We, therefore, allow this appeal, set aside the judgment of the
High Court and restore that of the appellate Court. The suit will now proceed
before the Trial Court in pursuance of these orders. Under the circumstances,
the proceedings of the suit shall be expedited. There shall be no costs.
......................................J. (V.S. Sirpurkar)