PUSHPA AGARVAL Vs. ANIL AGARVAL

JUDGEMENT

(1.) Learned counsel for the appellants submits that the father of respondents, namely, Ram Avtar Agrawal filed a property Case No.70-A of 1993 under various clauses of Section 12 of the M.P. Accommodation Control Act, 1961. Learned District Court vide judgment dated 22.08.1995 dismissed the said suit and opined that relation of landlord and tenant could not be established by the plaintiff therein. Thereafter the sons of Ram Avtar/private respondents instituted RCS 371-A/2011 by suppressing the previous judgment dated 22.08.1995 passed in Case No.70-A/1993. The present appellants were not served. They succeeded in obtaining a judgment and decree by suppression of fact. At the time of execution only, the present appellants came to know about the factum of passing the judgment dated 14.02.2012 in RCS No.371- A/2011. The appellants promptly filed an application under Order 9 Rule 13 of CPC, which was registered by the Court below as MJC No.583/2011.The appellants herein categorically raised the objection regarding suppression of fact and the manner and method in which the decree was obtained by the respondents herein. The Court below although reproduced the said contention of the appellants in Para 2 of the order dated 01.03.2016, no amount of analysis was made on the said facet. The Court below by an erroneous order dated 01.03.2016 disallowed the application under Order 9 Rule 13 of CPC. By placing reliance on a recent judgment of Supreme Court reported in AIR 2020 SC 41 (N. Mohan Vs. R. Madhu), Shri Gohil urged that the appellants had two remedies and they diligently availed the same. The appellants have shown sufficient cause and, therefore, delay may be condoned.

(2.) The prayer is vehemently opposed by Shri D.K. Kaushal, learned counsel for the respondents. Shri Kaushal urged that if both the remedies were available to the appellants, they should have exercised both the remedies simultaneously. He submits that the appellants have not shown sufficient cause for explaining enormous delay of 1410 days. Reliance is placed on 2015 (12) SCC 695 (Neeraj Jhanji Vs. Commissioner of Customs and Central Excise), 2006 (II) MPWN 62 (Jahoor Khan and others Vs. Ramvaran and others) and 2011 (3) MPLJ 135 (Lanka Venkateswarlu Vs. State of A.P. and others).

(3.) No other point is pressed by learned counsel for the parties on the question of condonation of delay.