Ramji Pandey & Ors vs Swaran Kali

RAMJI PANDEY & ORS. ....... Appellants

Versus

SWARAN KALI ......Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The question that falls for determination in this appeal is

whether to uphold the impugned judgment and order

passed by the High Court of Allahabad or to restore the order dated 24.02.1992 passed by the Additional District

Judge, Allahabad. By the impugned judgment and order

dated 28.02.2006 the Allahabad High Court has set aside

and quashed the order dated 24.02.1992 passed by the

Additional District Judge, Allahabad in Misc. Case no. 494

of 1991.

3. The respondent herein filed suit no. 508 of 1983 before the

Additional Civil Judge, Allahabad against the appellants for

the relief of declaration that she was also one of the owners

and co-sharers in the property constituting a house

numbering 172, Lookerganj, Allahabad and her name

should also be shown as one of the purchasers of the said

house in dispute in the sale deed alleged to have been

executed in their favour by its earlier owner. The aforesaid

suit was earlier contested by the appellants herein but

subsequently they failed to appear and consequently an ex

parte decree was passed in the said suit in favour of the

respondent on 10.05.1988 by the Additional Civil Judge.

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4. Thereafter, the appellants herein filed a recall application

under Order IX Rule 13 Code of Civil Procedure [for short

"C.P.C."] for setting aside the ex parte decree. The said

application however after consideration was rejected by the

Additional Civil Judge, Allahabad vide order dated

04.05.1989. Aggrieved by the said order, the present

appellants filed Miscellaneous Appeal no. 154 of 1989

before the Additional District Judge, Allahabad which was

allowed with the direction that the regular suit no. 508 of

1983 be proceeded in accordance with law. The said

judgment was passed by the District Court on 04.01.1991.

5. At the time when the original suit was filed, the value of the

suit was more than Rs. 20,000/- and, therefore, the

pecuniary jurisdiction to file the said appeal lay in the High

Court and not in the District Court. Therefore, aggrieved by

the order dated 04.01.1991 passed by the District Court

allowing the appeal, the respondent filed a writ petition

which was registered as Writ Petition No. 9638 of 1991.

However, during the interregnum period and while the said

petition was pending, the pecuniary jurisdiction of the

3 District Court was increased from Rs. 20,000/- to Rs. 5 lacs

and, therefore, appropriately at the time of passing of the

order, the jurisdiction was with the District Court. The High

Court, therefore, passed an order that it would be open to

the defendant to move an application for condonation of

delay before the District Judge.

6. In terms of the aforesaid order of the High Court, the

appellants moved an application before the Additional

District Judge, Allahabad under Section 5 read with Section

14 of the Limitation Act [for short "the Act"] and an appeal

was registered as appeal no. 494 of 1991. The respondent

herein filed an objection to the application filed by the

appellants under Section 5 read with Section 14 of the

Limitation Act contending inter alia that the appellants

herein did not act in good faith nor had they acted with due

care and attention so as to enable them to get the benefit of

Section 14 of the Limitation Act and, therefore, the time

spent by them in pursuing the matter in the wrong forum

should not and cannot be condoned.

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7. The plea taken by the appellants in the application under

Section 5 read with Section 14 of the Act was that they had

been wrongly advised by the senior counsel that pecuniary

jurisdiction of the High Court was that of the District Court

and, therefore, the defendants abided by the advice given to

them by the senior counsel and pursued the matter in that

forum until the same was decided.

8. On the other hand, the respondent had argued that the

appellants had knowledge of the suit which had been filed

but failed to appear in the said suit and also failed to

contest the suit and, therefore, the same was decreed. The

application filed for setting aside the decree was also

rejected by the Additional Civil Judge, Allahabad on

04.05.1989. Against the said order, appellants filed

Miscellaneous Case no. 154 of 1989 in the wrong forum

which, in fact, was also pointed out by the respondent

herein in the objection filed on 01.07.1989. It was pointed

out clearly in the said objection at para 5 that the said

District Court has no pecuniary jurisdiction to entertain the

appeal arising out of the original suit no. 508 of 1983 being

5 valued at Rs. 46,000/- and that the appeal was required to

be filed before the High Court.

9. Despite the aforesaid objections taken by the respondent,

the Additional District Judge allowed the said application by

the order dated 24.02.1992. In the order dated 28.02.2006

the High Court held that the order passed by the Additional

District Judge was incorrect and unjustified as this was not

a case for grant of indulgence under Section 14 of the Act as

it could not have been said that the appellants herein acted

in good faith or with due diligence in order to get the benefit

of Section 14 of the Act. Since the aforesaid order is

challenged in the present appeal and since notice was

issued pursuant to which the respondent has also entered

appearance, we heard the learned counsel appearing for the

parties at length.

10.The counsel appearing for the parties made their respective

submissions and in support of their contentions they also

relied upon and referred to some of the documents on

records.

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11.The suit was filed by the respondent herein in the Court of

Additional Civil Judge, Allahabad for a declaration that she

was a co-sharer in the suit property to the extent of one half

share in the same wherein she also sought for a direction

that her name be entered in the agreement dated

01.07.1983 and sale deed dated 16.01.1984. Although, the

appellants herein filed a written statement, they failed to

appear in the suit thereafter and, therefore, an ex parte

decree was passed in favour of the respondent vide

judgment and order dated 10.05.1988. The recall

application filed by the appellants under Order IX Rule 13

C.P.C. for setting aside the ex-parte decree was rejected by

the Additional Civil Judge on the ground that there was

negligence and lack of due diligence on the part of the

appellants in pursuing the matter and, therefore, they are

not entitled to the relief of setting aside the ex parte decree.

In terms of the valuation of the suit, an appeal from the

said order should have been preferred before the High Court

wherein the pecuniary jurisdiction to file the said appeal lay

at the relevant time. Ignoring the said specific provision, an

7 appeal was preferred before the District Court. The

aforesaid appeal filed was allowed and it was directed that

the regular suit no. 508 of 1983 be proceeded with in

accordance with law which was tried and decided. Since the

aforesaid order was without jurisdiction as the District

Court did not have pecuniary jurisdiction a writ petition

was filed in the High Court by the respondent which was

entertained. Since during the pendency of the said writ

petition in the High Court the pecuniary jurisdiction of the

District Court was increased from Rs. 20,000/- to Rs. 5

lacs, therefore, the High Court held that now an appeal

would lie before the District Court and, therefore, the same

could be filed with an application for condonation of delay

before the District Judge.

12.The appellants moved the said application under Section 5

read with Section 14 of the Limitation Act. At the time of

hearing of the said appeal, it was pointed out in the

objection filed by the respondent against the application

under Section 5 read with Section 14 of the Act at a very

early stage that such an appeal is not maintainable before

8 the District Court as it lacked pecuniary jurisdiction to

entertain the said appeal and, therefore, it would have been

appropriate for the appellants to withdraw the appeal and

file appropriate proceedings before the High Court. The

same having not been done and having obtained an order in

their favour which ex facie was illegal and without

jurisdiction the appellants are not entitled to take the

benefit of Section 5 read with Section 14 of the Limitation

Act.

13.The High Court considered the entire facts and

circumstances of the case and then held that the aforesaid

objection of the respondent is well-founded, particularly in

view of the fact that at the very initial stage itself the

respondent had taken a clear objection that the District

Court did not have jurisdiction to try and decide the appeal.

Not only did the appellants ignore the said objection, but

the Court while allowing the application filed by the

appellants, also ignored the said fact which was specifically

pleaded in the objection filed by the respondent.

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14.The aforesaid conclusions which have been arrived at by the

High Court are relevant facts. Considering the entire

records, we find that the appellants are not only negligent

but have been acting and pursuing the entire matter

without due diligence as would be apparent from the fact

that they initially failed to pursue the suit in right earnest,

having failed to appear and contest the suit, due to which

an ex-parte decree had to be passed by the court. Even

thereafter, they failed to file the appeal in the proper forum,

which was brought to their notice right at the initial stage

by the respondent's filing of an objection. Despite the said

fact, they did not take any step to withdraw the same and

continued with the proceedings which was void ab initio and

without jurisdiction and also obtained an order in their

favour. Even before the High Court, where the impugned

order was passed the appellants did not appear on the date

of arguments or even on the previous dates. Absence of due

diligence in pursuing the matter is writ large on the face of

the records. Suit of 1983 was decreed ex-parte in the year

1988 and thereafter the proceeding for setting aside the ex-

10 parte decree is being dragged on one way or the other by

filing application / appeal and is dragging the matter till

date.

15.In the list of dates the appellants themselves have stated

that they had come to know about the passing of the

impugned order dated 28.02.2006 by the High Court only

on 30.08.2007 and they filed a regular application only on

12.09.2007 and by order dated 05.10.2007 the said regular

application was rejected on the ground of laches because

the counsel of the respondent was not served. Even

thereafter, the appellants again filed a regular application

for service upon the respondent by registered post which

was also rejected by order dated 02.09.2008 by the High

Court.

16.In view of the facts delineated herein, we are of the

considered opinion that the conduct of the appellants

throughout lack due diligence and they have been pursuing

the entire matter negligently.

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17.Therefore, we find no reason to interfere with the detailed

and speaking order passed by the High Court. The appeal

has no merit and is dismissed with no order as to costs.

......................................J. [Dr. Mukundakam Sharma]

......................................J. [ Anil R. Dave ]

New Delhi, October 25, 2010.

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