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Judgment
Motilal B. Naik, J.—Petitioner is the plaintiff in O.S.No. 496 of 1990 on the file of the Principal Subordinate Judge, Visakhapatnam. The case of the petitioner is that the above suit was instituted against the respondents-defendants for recovery of an amount of Rs. 2,80,271 /- being the amount paid to the respondents-defendants and to their technicians for the supply of original Italian made Durst - 502 High Speed Substractive Printer equipment and its installation at petitioner''s colour laboratory at Visakhapatnam. Suit notices were directed to the respondents-defendants through Court as well as by registered post acknowledgement due. Though suit notices were served on the respondents-defendants, which were sent through RP AD, none appeared on their behalf on 27-2-1991, on which date the suit stood posted for their appearance. Therefore, the Court, satisfying itself on the service of notices, set the respondents-defendants ex parte on 27-2-1991 and posted the matter on 28-2-1991 for the evidence of the petitioner-plaintiff. Accordingly on 28-2-1991 on behalf of the petitioner-plaintiff, one of the partners was examined as PW1; Exs. A1 to A17documents were marked and the suit was decreed as prayed for.
Pursuant to the judgment and decree dated 28-2-1991, the petitioner-firm got the decree transferred to the High Court of Bombay for execution, as the properties of the respondents-defendants were located within the territory of High Court of Bombay. Thereafter, the petitioner-plaintiff filed E.P.No. 63/92 on the file of the High Court of Bombay and pursuant to the said execution petition, the movable and immovable properties shown in the E.P. schedule were attached on 27-4-1992. On 27-5-1992 the respondents-defendants filed a petition before the Subordinate Judge''s Court, Visakhapatnam seeking to set aside the ex parte decree dated 28-2-1991. Along with the petition filed under Order 9 Rule 13 CPC, I.A.No. 300/92 was filed u/s 5 of the Limitation Act seeking to condone the delay of 15 months in filling the petition to set aside the ex parte decree. On behalf of the petitioner-plaintiff, a counter was filed inter alia contending that though notices were served on the respondents-defendants, they failed to appear before the court and contest the suit; that they failed to disclose sufficient reasons which prevented them from approaching the court in time and that, therefore, the day-to-day delay was not properly explained. The only explanation made out by the respondents-defendants before the Court below was that they entrusted the matter to their staff and went abroad in connection with their business assignment and that it is only when they received notices in the E.P. that they realised about the suit being decreed against them.
On the basis of the pleadings, the Court below allowed the application for condonation of delay on condition of the respondents-defendants paying costs of Rs. 500/- to the petitioner-plaintiff. The decree and order dated 14-7-1992 in I.A.No. 300/92 is the subject-matter in this revision petition.
Sri T.S. Anand, learned junior counsel representing Sri T. Veerabhadrayya, learned counsel for the petitioner-plaintiff, primarily contends that the conclusion arrived at by the Court below while allowing the application filed u/s 5 of the Limitation Act is contrary to its own finding and, therefore, the Court below has exercised such jurisdiction which is not vested in it. It is also contended that the respondents-defendants were set ex parte on 27-2-1991 and the suit, was decreed on 28-2-1991 on the basis of oral and documentary evidence let in by the petitioner-plaintiff; that it is not the case of the respondents-defendants that they were not aware of the proceedings; that it is an admitted fact that notices were served on the respondents-defendants through RPAD and that this fact is admitted by the respondents-defendants. It is further contended that the only reason putforth by the respondents-defendants is mat the matter was entrusted to their staff and they went abroad. Sri Anand further contends that the lower Court ought to have taken note of the fact of hardship the petitioner-plaintiff had undergone by getting the decree transferred to the High Court of Bombay and getting the properties - movable and immovable -attached and that the lower Court ought to have taken into consideration the prejudice that would be caused to the petitioner-plaintiff if the petition u/s 5 of the Limitation Act is allowed after the petitioner has taken all the steps for realising the decretal amount. He further argued that though the Court below found that the respondents-defendants have not placed satisfying resons, only on the ground that they want to contest the matter on merits, allowed the petition filed u/s 5 of the Limitation Act imposing costs of Rs. 500/-. The emphasis on behalf of the petitioner-plaintiff is that the Court below has exercised jurisdiction which is not vested in it, as the conclusion arrived at is contrary to its own finding, and if the order is allowed to stand would occasion failure of justice causing irreparable injury to the petitioner-plaintiff and, therefore, seeks setting aside the order impugned.
On behalf of the respondents-defendants, Sri C.P. Sarathy, at the outset, contended that this Court has no power to interfere with the order passed by the Court below exercising discretionary power. According to him, the scope of revision u/s 115 C.P.C. is very much limited and, therefore, the High Court cannot interfere with the order passed by the Court below exercising its discretionary power, however illegal the order may be.
Both the counsel have relied upon few decisions of various High Courts as well as of the Supreme Court in support of their contentions. Before I take up on to examine the decisions cited by the learned counsel, it is necessary to trace out the provisions contemplated in Section 115 C.P.C. and examine whether this Court can interfere with the discretionary order passed by the lower Court, in the facts and circumstances of the case. Section 115(1) CPC reads:
"115. (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."
It is evident from a reading of the provisions contemplated under Sub-section (1) of Section 115 that the High Court may interfere with the order passed by the subordinate court as it thinks fit and proper in a situation warranted under Sub-section (1).
It is the finding of the Court below that suit notices were served on the respondents-defendants and that the petitioner-plaintiff has taken steps to send notices through Court as well as by registered post. The further finding of the court below as to the explaining of delay by the respondents-defendants is as under:
"The reasons asigned by the defendants in filing this application are though they were served with R.P. notices they left the country giving instructions to do the needful and till the attachment notice was served upon them, they were not aware of the ex parte decree passed against them. Since in the petition itself it is admitted that the suit summons were served through R.P. on them, naturally they must come up with an application to set aside the ex parte decree within time. If not so, they must assign reasons for the delay in approaching the court. The delay in this case is admittedlyl5 months. Except the bald plea in the affidavit that they instructed their staff to pursue the case after receipt of summons by R.P., there is no material to substantiate it. Similarly the plea that they left the country is also not substantiated. There cannot be any dispute that the petitioner in the petition of this nature must necessarily explain each day''s delay. Since they admit receipt of suit summons by R.P., their plea that they are within 30 days of notice of execution cannot be upheld. Thus, it can be said that the defendants could not place convincing reasons to explain he delay of 15 months."
Thus, it is evident from the finding of the Court below that the delay was nonproperly explained by the respondents-defendants. However, in paragraph 6 of the order impugned, the Court below comes to a different conclusion contrary to its own finding by taking a lenient view of the matter while allowing the petition filed u/s 5 of the Limitation Act on condition of the respondents-defendants paying costs of Rs. 500/-. It is this conclusion which is the centre of attack by the petitioner-plaintiff.
Under the background of this finding of the Court below, Sri C.P. Sarathy takes me through few decisions in support of his contention that the High Court cannot interfere with the discretionary order passed by the Court below exercising jurisdiction u/s 115 C.P.C. Placing reliance on the decision in Union of India(UOI) Vs. Sri Laxmi Oil Mills, , Sri Sarathy contended that Order V Rule 19-A CPC specifically contemplates simultaneous issue of summons for service by post in addition to personal service. Basing on this provision, it is contended that in the initial stage itself the provisions have not been complied with and, therefore, setting the respondents-defendants ex parte on the date so fixed for their appearance was violative of the provisions contemplated under Order V Rule 19-A and the order is vitiated for not following the mandatory requirement. I am afraid, the respondents-defendants cannot be allowed to urge this proposition at this point of time, as it is too late in the day to say that the provisions contemplated under Order V Rule 19-A CPC have not been complied with. There is a categorical finding in the order impugned that notices were issued through Court as well as by registered post. That being the finding, it is not open to the respondents-defendants to raise the issue now. If at all the respondents-defendants were aggrieved by the procedure of not following the provisions contemplated under Order V Rule 19-A; it was very well open to them to seek recourse to such steps as are open to them. In the revision petition filed by the petitioner-plaintiff aggrieved by the order allowing the petition filed u/s 5 of the Limitation act, I am of the opinion, the respondents-defendants cannot be allowed to urge this ground. Therefore, the decision cited by the counsel for the respondents-defendants has no application to the facts and circumstances of the case on hand.
In Abdul Gaffar and Others Vs. Gayas Singh and Others, , a Full Bench of the Patna High Court was dealing with the inherent powers conferred upon the court u/s 153 C.P.C. In that case, it seems, due to inadvertance, plaintiff No. 7 was not added as a respondent and, therefore, the application filed by the appellant to implead plaintiff No. 7 as a respondent was allowed by condoning the petition filed u/s 5 of the Limitation Act. The Full Bench held that in such contingencies, the lower Court was right in condoning the delay and, therefore, the Court held that the lower appellate Court had undoubtedly jurisdiction to condone the delay. This decision has no relevance to the facts of the case on hand. There is no mistake or inadvertance on the part of the parties to bring on record necessary parties and, therefore, in my considered view, this decision has no application to the facts of the present case.
In Binode Hembram Vs. State of West Bengal, , the High Court''s interference u/s 115 CPC against an order passed by the lower Court was held to be bad. In that case, before the trial Court, a suit was filed for recovery of certain amount and the plaintiff desired to pursue the suit in forma pauperis. The defendant therein and the Government as well took objection on the plaintiff being prosecuting the case as an indigent person on the ground that the plaintiff had sufficient means to prosecute the case. Therefore, the trial Court directed the plaintiff therein to discover the documents by way of an affidavit for seeking details of his bank accounts, pass books, cheque books and also the immovable properties. A date was fixed for furnishing those details. The plaintiff failed to discover and sought some more time. The lower Court rejected to extend the time on various counts. As against that order of rejection, the plaintiff moved the High Court by way of revision u/s 115 CPC. The High Court interfered with such an order. Therefore, the Supreme Court held that the High Court was wrong in holding that passing of the order for discovery, the trial Court acted illegally in excess of its jurisdiction, as it deprived the respondent of his right to claim privilege for non-production of pass books and personal accounts, because the stage of claiming privilege had not yet reached. The facts of the above case are totally different and, therefore, the said decision cannot be made applicable to the facts and circumstances of the present case.
In Savithri Amma Seethamma Vs. Aratha Karthy and Others, the question that fell for consideration before the Supreme Court was that on 30th March, 1982 when C.R.P.No. 766/ 81 preferred by the first respondent therein came to be heard by a learned single Judge of the High Court, the advocate engaged on behalf of the appellant could not appear because he was engaged in another Court and it was only later, after the Court had closed for summer vacation on 7th April, 1982, that he came to know that the revision application had already been heard and decided in favour of the first respondent. The learned advocate for the appellant on coming to know what had happened, made an application supported by his own affidavit for re-hearing of the revision application. That application was rejected by the learned single Judge treating it as if it was a review application. The order rejecting the application for re-hearing was made on 22nd June, 1982. Against that order, the matter was carried by way of special leave to the Supreme Court. The Supreme Court in that case held "on the facts and circumstances of the case, the appellant had sufficient cause for not being present at the hearing of the revision application and the learned single Judge of the High Court, ought, in the circumstances, to have allowed the application and re-heard the civil revision petition applying the principle underlying Order XLI, Rule 21 of the Code of Civil Procedure". It is thus evident that the facts of the above decision are totally different from the facts of the present case and, therefore, the decision has no application.
In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , the Supreme Court held that courts should adopt liberal approach in the petitions filed u/s 5 of the Limitation Act for condonation of delay. While dealing with this aspect, at paragraph 3, the Supreme Court discussed as under:
"The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ''merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:-
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
"Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
The observations made by the Supreme Court would undoubtedly indicate that courts should be liberal in condoning the delay when sufficient cause is made out. I am afraid, the facts of the case are totally different from the one on hand. When the respondents-defendants received notices, which fact is not disputed, no sincere effort was made to defend their case. It is only when the petitioner-plaintiff, after obtaining the decree from the civil court, after getting the decree transferred to the High Court of Bombay and getting an order for attachment by incurring heavy expenditure, nearly after fifteen months of the ex parte order, belated attempt was made by the respondents-defendants to set aside the ex parte decree. The Court below categorically held that the reasons setforth in the affidavit filed in support of the petition u/s 5, are not sufficient to condone the delay and yet, condoned the delay by imposing costs of Rs. 500/-. This action of the Court below, in my view, is contrary to the discretionary power vested in it and, therefore, the above decision cited by the counsel for the respondents-defendants cannot be made applicable to the facts of the present case.
In Bimla Wati Sharma Vs. State Bank of Patiala, the Punjab & Haryana High Court was dealing with Order V Rule 2 C.P.C. I am afraid, this decision cannot be made applicable to the present case, as Order V Rule 2 CPC deals with issuance of summons. It is too late for the respondents-defendants to say that the procedure contemplated under Order V Rule 2 CPC was not followed and, therefore, the ex parte order passed is a nullity.
In the wake of the decisions cited by the learned counsel for the respondents-defendants, the learned counsel for the petitioner-plaintiff has taken me through various decisions in support of his contention. In Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., , the Supreme Court, while considering the pros and cons of Section 5 of the Limitation Act, held:
"In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree -holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice."
The Supreme Court further observed:
"It is, however, necessary to emphsise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone."
Applying the test as indicated by the Supreme Court in the above decision, I am of the view, the lower Court ought to have dismissed the application filed u/s 5 of the Limitation Act when there is a categorical finding given by it that the delay was not properly explained.
In Mostt. Sundari and Another Vs. Sakal Sahni and Others, , a learned single Judge of the Patna High Court was considering the scope of Section 5 of the Limitation Act. While referring to the two decisions of the Supreme Court in Sitaram Ramcharan etc. Vs. M.N. Nagarshana and Others, and Ramlal v. Rewa Coalfields Ltd. (7 supra) it is held:
"It is manifest, therefore, that the learned Additional Munsif could not condone the delay u/s 5 of the Limitation Act unless he was satisfied that even after the 5th May, 1970, the defendant had sufficient cause for not applying under Order IX, Rule 13, CPC until the 29th May, 1970. In fact there is nothing on the record from which it could legitimately be inferred that the defendant had explained the delay between the 5th May, 1970 and the 29th May, 1970. Therefore, the learned Additional Munsif could have no jurisdiction to extend the benefits of Section 5 of the Limitation Act to the defendant."
In Katam Virupakshiah and Others Vs. Matam Sivalingaiah and Others, , a learned Single Judge of this Court, while dealing with the provisions of Section 115 CPC as to enable the High Court to interfere with the orders passed by the lower Court, held:
"Basing findings or conclusions upon facts which have no bearing or connection with them, is a material defect of procedure. Thus where there is only a show of reaching conclusions upon the facts of the case, there is a material irregularity in exercise of jurisdiction."
Further held:
"It is thus clear that the facts and reasons set out by the learned District Munsif have no logical connection with his findings. The discussion by him may be termed as a mere parody of reasoning. No doubt it cannot be said in this case that the learned District Munsif acted in excess of his jurisdiction or assumed jurisdiction which he did not possess. The question is whether the case falls under Clause (c) of Section 115, Civil Procedure Code."
As seen from the above decision, when the conclusion arrived at by the learned District Munsif is contrary to his own finding, such an order would fall within the scope of Clause (c) of Section 115 CPC and, therefore, the High Court can set at naught such an order.
In Gangadin Ram Krishna Vs. Smt. Kailashi Kuer, , a learned single Judge of the Allahabad High Court, while dealing with the provisions contemplated under Order IX, Rule 13 and Section 115 CPC, held:
"....An application to set aside an ex parte decree can be allowed only after an express finding by the Court that it is satisfied that the applicant was prevented by a sufficient cause from appearing in the suit. It must be rejected if the Court is not so satisfied. In this case the learned Judge observed that the applicant''s affidavit is not free from suspicion but nevertheless allowed it on the ground that the decree-holder''s evidence in rebuttal is not reliable. This was virtually a finding that the court was dissatisfied with the evidence of both the parties. The omission to record a clear finding of satisfaction in accordance with RULE 13 is a material irregularity which vitiates the decision."
Thus, it is evident from the above decision that if the court is not satisfied with the reasons stated, it should reject the application. Undoubtedly, in case on hand, there is a categorical finding by the Court below that the respondents-defendants received notices and they have not explained sufficient reasons which prevented them from making their appearance and contesting the matter. This being the finding, the order of the Court below, allowing the application u/s 5 of the Limitation Act, would be amounting to material irregularity committed within the meaning of Clause (c) of Section 115 C.P.C. Further, if such an order is allowed to sustain, in my considered view would occasion a failure of justice causing irreparable injury to the petitioner-plaintiff.
In the light of the decisions and in view of the facts of the case, the petitioner has made out a case for interference u/s 5 of the CPC and accordingly the order of the Court below dated 14-7-1992 in I.A.No. 300/92 in O.S.No. 496/90 is set aside and consequently the civil revision petition is allowed with costs.