AMAR SINGH Vs. MOHAN LAL

JUDGEMENT

(1.) ON 10.4.2014 the suit of the respondent -plaintiff was dismissed for his non appearance. The respondent -plaintiff instituted a composite application under Order 9 Rule 9 CPC for setting aside the orders rendered on 10.4.2014, when for his non appearance before the learned trial Court, his, suit came to be dismissed for default. Besides, therein he explicitly articulated good cause which precluded him from instituting within time the aforesaid application before the learned trial Court. On consideration of the entire material, as laid before the learned trial Court, it, allowed, the application, preferred before it by the respondent -plaintiff. The counsel for the petitioner -defendant is aggrieved by the said order. He canvasses that the application under Order 9 Rule 9 CPC was belated. Besides, it not being accompanied by a separate application under Section 5 of the Limitation Act, hence, the reasons as prevailed upon the learned trial Court to assign a good cause for the delay in moving the application, are ill merited. He also canvasses before this Court that the relief as afforded in favour of the respondent -plaintiff by the learned trial Court in its impugned order omitted to or rather irrevered the factum, as, divulged in Annexure A -4, of the plaintiff -respondent being available at Manali on 11.4.2014, hence, his unavailability at Manali on 10.4.2014, on the averred reasons, are, incredible, as such, constitute both deliberate as well as intentional omission to appear before the learned trial Court on 10.4.2014. Consequently, he urges that no good, sufficient or adequate cause was portrayed by the plaintiff before the learned trial Court for its being, hence, convinced of relief being afforded in his favour.

(2.) THIS Court has gone through the entire material available before this Court. It is self evident, on a perusal of the application, preferred by the respondent -plaintiff, before the learned trial Court under Order 9 Rule 9 CPC, more especially the explicit and pointed disclosures in paragraphs 3 and 4 thereof, are eloquent self speaking explicit reasons which constrained the plaintiff -respondent, to not move the learned trial Court within time for setting aside the orders rendered on 10.4.2014, whereby his suit was dismissed for his non appearance. Even the petitioner -defendant has replied to the said averment in his application. In view of the contesting parties before the learned trial court in the application under Order 9 Rule 9 CPC, being aware of their respective cases and espousals, more particularly, of, the explicit grounds enunciated in paragraphs 3 and 4 of the application which constrained the respondent -plaintiff, to not within time apply for setting aside the orders rendered by the learned trial Court on 10.4.2014, by which order his suit was dismissed, for his non appearance. Therefore, it cannot be said that there was no opportunity to the defendant -petitioner to contest the said averment which when rather came to be contested on his part, as a corollary, when he was not taken by surprise and when material was available before the learned trial Court to consider whether the respondent -plaintiff did or did not portray good, sufficient and abundant cause for the delay begotten in instituting the application under Order 9 Rule 9 CPC, it having proceeded to consider the said material, and when it has not been demonstrated that the reliance upon the said material by the learned trial Court was misplaced, cannot, constitute good ground for inferring that, hence, (a) it has exercised jurisdiction not vested in it, especially in the face of theirs being no accompanying application under Section 5 of the Limitation Act for adjudication, rather it having concluded in the impugned order of the fact of theirs being good, sufficient and abundant cause available before the learned trial Court for its proceeding to draw the inference that, as such, the delay in the institution of the application under Order 9 Rule 9 CPC was justified, cannot, constrain this Court to conclude that it has in any way traversed beyond the limits or bounds of its jurisdiction, (b) nor it can be concluded that it has, in the exercise of jurisdiction, acted, with any illegality or material irregularity. Preponderantly, even in the facts and circumstances of the case, the necessity of a separate application, under Section 5 of the Limitation Act, for condoning the delay, begotten in the institution of the application, under Order 9 Rule 9 CPC, for the purpose recited therein, would be dispensable, in the face of theirs being an inbuilt and engrafted averment, in satisfaction of the legally enshrined statutory parameters for condoning the delay, as may have been, begotten in the institution of the application. In sequel thereto, when the spirit of the mandate of Section 5 of the Limitation Act, was, achieved by an inbuilt averment in paragraphs 3 and 4 of the application, in consonance with its enshrined parameters, as such, for doing substantial justice, this Court need not insist for strict compliance with the procedural formality of another application under Section 5 of the Limitation Act accompanying it, when otherwise for reasons aforesaid its spirit was met and achieved.

(3.) THE learned counsel for the petitioner -defendant has also canvassed before this court that the impugned decision of the learned trial Court is pervaded with an infirmity, inasmuch, as, it does not mention any reasons of good cause which prevailed upon the learned trial Court, in arriving at the finding, that non appearance of the respondent -plaintiff on 10.4.2014 was neither deliberate nor intentional. However, the said contention for reiteration is not well founded, as, in paragraph 8 of the impugned order the learned trial Court has explicitly mentioned that the non appearance of the plaintiff -respondent on 10.4.2014 was neither wilful not deliberate, hence, has proceeded to set -aside the orders by which his suit was dismissed in default. The application on which the impugned order was rendered was conjoint and composite, inasmuch, as, in it both the abundant cause which constrained the respondent -plaintiff to move the learned trial Court within time as well, as, his being constrained to omit to appear before the learned trial Court on 10.4.2014 were simultaneously urged. Therefore, when for reasons aforesaid, the delay in institution of the application before the learned trial court at the instance of the respondent -plaintiff under Order 9 Rule 9 CPC have been concluded to be tenable and well founded, obviously then the omission of appearance of the plaintiff -respondent before the learned trial Court on 10.4.2014, too, necessitates for reasons assigned hereinabove being construable to be also well founded. Consequently, even if there is a mentioning in brevity in the impugned order of good cause for non appearance of the respondent -plaintiff before the learned trial Court on 10.4.2014, the said brevity of reasoning when otherwise considering the wholesome tenable reasoning afforded in it portraying the lack of deliberateness on the part of the respondent -plaintiff to appear before the learned trial Court on 10.4.2014, hence, cannot, but constrain any finding from this Court of the impugned order being not ingrained with any infirmity. Accordingly, the instant petition is dismissed. The impugned order is maintained. No order as to costs.