GEETA DEVI Vs. NIRMALA KUMARI

JUDGEMENT

(1.) THIS revision under Section 115 C. P. C. has been preferred by the defendants.

(2.) THE plaintiff-non-petitioner Smt. Nirmala Kumari filed a suit on 23. 11. 1992 against the defendant Chagan Lal for possession and mesne profits with the averments that the suit property belongs to the plaintiff and is in her possession. In her absence when the plaintiff was with her husband at Delhi the defendant raised new construction over land measuring 46' x 30' in the year 1982. When the plaintiff came to know he asked the defendant to vacate the same. THE defendant assured to vacate but did not do so and in November, 1992 declined to hand over the possession. Hence the suit.

(3.) NEXT question for consideration arises is as to whether the defendant satisfied the court that he was prevented by any sufficient cause from appearing in the court on 14. 10. 1993-the date fixed for filing written statement. The two courts below having considered the statement of the defendant and the witnesses examined on behalf of the plaintiff arrived at concurrent finding that no reason has been assigned for such an inordinate delay and the defendant himself was present in the court on 6. 9. 1993. Learned counsel for the petitioners contended that the defendant Chagan Lal was uneducated person and he was asked by his counsel not to appear on each and every date and to appear only when he was informed by his counsel but his counsel never informed him; that the petitioners were and are not in a position to file affidavit of their counsel Sh. Deen Mohd. and the dispute relates to immovable property and the court should give an opportunity to them to plead their case and the court should adopt a liberal approach. He placed reliance upon Collector, Land Acquisition, Anantnag & Another vs. Mst. Katiji & Others (1 ). The Hon'ble Supreme Court condoned the delay of four days in filing the appeal and it was held that the court should adopt liberal approach though the court should give reasons for adopting such approach. Reliance was placed upon Trilok Chand Saini vs. The State & Others (2), wherein the Hon'ble Division Bench of this Court held that length of delay in filing the appeal is no ground and the acceptability of explanation of delay is the only criterion. Per contra, learned counsel for the non- petitioner contended that there is no ground to interfere with the concurrent finding of the two courts below; that order to proceed exparte was passed on 14. 10. 1993; that the exparte decree was passed on 18. 5. 1996 and this application was filed on 31. 3. 1998 and there is no explanation for such an inordinate delay. He placed reliance upon Rawal Das vs. Vasudevi (3), wherein it was held that the provisions of Article 123 of the Limitation Act would apply only when the defendant did not appear at all and if the defendant appears but subsequently absents himself and a decree is passed exparte, time shall be reckoned from the date of the decree. In Gouri Shankar & Ors. vs. Satya Narain (4), it was held that when the plea of assurance given by the counsel is not accepted and the defendant is found guilty of laches and the application under Order 9 Rule 13 C. P. C. was filed almost after more than six months from the date of the decree, such application cannot be allowed.