Bhagmal & Ors vs Kunwar Lal & Ors

"Reportable "

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5875 OF 2005

Bhagmal & Ors. .... Appellants

Versus

Kunwar Lal & Ors. .... Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. 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.

2. 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.

3. 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 was restored.

Ms. June 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.

The learned 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.

4. 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.

5. 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.

6. 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.

7. 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.

Under 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.

Writing was also effected, displaying that compromise.

The 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.

8. 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.

He has based this contention on the basis of a reported

decision of this Court in Sneh Gupta Vs. Devi Sarup &

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."

The Court 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.

9. 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)

......................................J.

(Dr.MukundakamSharma)

New Delhi;

July 27, 2010 13