HARI SHANKAR DUBEY Vs. CHARUCHANDRA DWIVEDI

JUDGEMENT

(1.) INVOKING the revisional jurisdiction of this court under Section 115 of the Code of Civil Procedure the petitioner has called in question the legal validity of the order dt. 16.2.2000 passed in Misc. Civil Appeal no. 7/99 by the learned Second Additional District Judge, Hoshangabad wherein the learned appellate Judge has affirmed the order dt. 3.8.99 passed by the First Civil Judge, Class -I in Misc. Case no. 3/98 whereby the court of first instance refused to condone the delay in filing an application under Order 9 Rule 13 of the Code of Civil Procedure and consequently dismissed the application for setting aside the exparte decree. The facts as have been depicted are that the non -applicants 1 and 2 instituted a civil litigation against the present petitioner for possession of Kh. no. 36/1 admeasuring 1.69 acres and Kh. no. 38/1 admeasuring 23.61 acres total area of 25.30 acres situate in village Mangariya Tahsil and District Hoshangabad and for mesne profits at the rate of 3000/ - per annum from 1984 -85, After receiving the summons in the suit 'he defendant petitioner appeared on 22.8.85 through his counsel Hanskumar Diwan and filed his writen statement. Shri Hanskumar Diwan continued to conduct the case on behalf of the petitioner till his death on 26.8.92. Thereafter his son Sushil Kumar Diwan took charge of the case. In the early part of 1995 the sister of the counsel was allotted an agency of the Indane Gas in Hoshangabad for which the counsel became very busy and in his absence the case was looked after by Shri Dinesh Kumar. Shri Sushil Kumar Diwan who was related to the defendant petitioner was the main counsel and had assured him that he would instruct him to attend the court whenever required. Shri Sushil Kumar Diwan did not inform the petitioner about the progress of the suit and only told him that formal dates were being given and when ever appearance would be required he would intimate the petitioner. On 3.4.98 the petitioner came to know that some persons had come to the disputed land and discussed about taking over possession. Thereafter the petitioner went to the Court and upon enquiry found that he was proceeded ex parte on 7.1.98 and an ex parte decree had been passed against him on 14.1.98. After coming to know about this situation the petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code') for setting aside the ex parte decree dated 14,1.98. As there was some delay in filing of the application to set aside the ex parte decree, an application under Section 5 of the Limitation Act was filed for condonation of delay. In support of his case the petitioner examined himself and his counsel Sushil Kumar Diwan.

(2.) THE learned trial Judge while dealing with the application for condonation of delay came to hold that the applicant was not vigilant in prosecuting his case and he should have kept in touch with his counsel and found out about the progress of the suit. He further held that as the same was not done, it could be concluded that he was not vigilant enough to keep himself informed. Being of this view the learned trial Judge rejected the application preferred under Section 5 of the Limitation Act and consequently the application for setting aside the ex parte decree stood dismissed. Feeling aggrieved the petitioner went up in appeal before the learned Additional District Judge, Hoshangabad. The appellate court while affirming the order passed by the learned trial Judge came to hold that the counsel Sushil Kumar Diwan was a close relative of the petitioner and they were living in close proximity and met regularly and, therefore, the petitioner should have made proper enquiry about the case and as he has not done so the same amounts to culpable negligence on his part. The learned appellate Judge further held that the petitioner was very much aware that his engaged counsel was busy in his sister's work and was not appearing in court and, therefore he should have been more vigilant in making enquiries about the case and his failure to do so is indicative of negligence on his part. The learned Additional District Judge further opined that as the petitioner was enjoying possession of the land he (sic)liberately absented himself with malafide intention and later on filed the application for setting aside the ex parte decree. After recording such findings the learned appellate Judge dismissed the appeal. I have heard Mr. Ravish Agarwal, learned senior counsel alongwith Mr. Pranay Verma, learned counsel for the applicant and Mr. V.S. Shroti, learned counsel for the non -applicants 1 and 2.

(3.) IT is submitted by Mr. Agarwal that both the courts below have failed to appreciate that the petitioner was an old man of seventy years and was totally dependant on his nephew who was his counsel with regard to the progress of his suit and such dependence is in tune with human nature. It is further canvassed by him that the petitioner is not an educated person and was not aware about the procedure of the court, as a result of which he had placed implicit faith in his counsel. The learned counsel has further contended that the findings of the courts below that the petitioner had exhibited culpable negligence and his action was malafide are not based on proper appreciation of facts and prima facie show perversity of approach warranting interference in this civil revision. In support of his submission learned counsel has placed reliance on the decision in the case of N. Balakrishnan Vs. M. Krishnamurthy, : AIR 1998 SC 3222. Resisting the aforesaid submissions it is canvassed by Mr. Shroti, that the courts below have given adequate reasons for their refusal to condone the delay and the consequential dismissal of the application preferred under Order 9 Rule 13 of the Code and hence, no fault can be found with the said orders. It is proponed by him that the petitioner has himself admitted that Sushil Kumar Diwan did not attend the court from 1996 but the petitioner did not make any effort to enquire about the progress of the case which is clearly indicative of the fact that he was culpably negligent. The learned counsel has further urged that the orders passed by the courts below are not liable to be interfered with in exercise of jurisdiction under section 115 of the Code in -as -much as there is no error of jurisdiction or any material irregularity in exercise of jurisdiction. It is his further submission that counsel's advice not to attend the hearing of the case is no ground to condone the delay. In support of his submissions he has placed reliance on the decisions rendered in the cases of Masjid Kacha Tank Vs. Tuffail Mohammed, A.I.R. 1991 S.C. 455, State of Madhya Pradesh and Others Vs. Dr. Sumedha Gajendragadkar (Mrs.) and another, : 1993 Supp. (2) SCC 185, Kempalah Vs. Chikkaboramma (Smt) and others, : (1998) 6 SCC 667 and Mudigonda Chandra Moull Sastry Vs. Bhimanepalli Bikshalu, : AIR 1999 SC 3095. To appreciate the rival submissions raised at the Bar, I have carefully perused the orders passed by the courts below and have bestowed my utmost anxiety to scan the same. On a close scrutiny of the order passed by the appellate court it appears that the appellate court was impressed by the fact that the appellant is in possession and in order to retain his possession he has remained deliberately absent to gain the advantage of possession. The lower appellate Judge has taken exception to the fact the petitioner had knowledge that his engaged counsel Sushil Kumar Diwan was busy in the gas agency of his sister and was not attending the court, and inspite of such knowledge he did not make efforts to know about the progress of the litigation.