Mauria Udyog vs Shubh Karan Saboo

Dr. (Mrs.) Sarojnei Saksena, J.—Brief facts of this Regular Second Appeal are that the plaintiffrespondents filed a suit against the defendantsM/s. Mauria Udyog Limited for recovery of Rs. 1,68,150/ with interest. On being served, defendantappellants filed written statement and denied the plaintiffs'' claim on the ground that they have added excess charges in the invoices than the value of the goods actually supplied by the plaintiffs to the defendants; the plaintiffs have also not taken into account the amount of rejected material worth Rs. 24627/ and some payments made by the defendants totaling Rs. 31,000/. Denying plaintiffs'' claim the defendantappellants claimed that they are entitled to recover Rs. 56,621.25 paise from the plaintiffrespondents. At the evidence stage, the defendants remained absent. Plaintiffs adduced their evidence. The trial Court decreed plaintiffs'' suit on January 19, 1995. Interest at the rate of 18 per cent per annum from the date of suit till realization was also awarded. On January 2, 1995, defendants'' evidence was closed under Order 17 Rule 3 CPC. Challenging this order the defendantappellants filed Civil Revision No. 1806 of 1995 in this Court. On April 28, 1995, they also filed an application for condoning the delay of 29 days in filing the revision. Vide order dated May 5, 1995, delay was condoned. When notice of motion was issued to the plaintiffrespondents, it was submitted that the plaintiffs'' suit had already been decreed on January 19, 1995. Therefore, revision filed against the interim order dated January 2, 1995, was not maintainable. Without deciding this legal point, the revision was disposed of on August 2, 1995, with a direction that it would be open to the petitioners to take the points raised in the revision petition in the appeal against the judgment and decree dated January 19, 1995; if such an appeal is filed and the same is entertained in accordance with law, the points raised therein would be decided according to law.

The defendantappellants filed appeal No. 28 of 1995 on August 14, 1995. Along with the memorandum of appeal, defendantappellants also filed an application under Section 5 of the Limitation Act seeking condonation of delay. This application was declined by the learned District Judge vide his order dated August 9, 1996, holding that the revision petition was decided on August 2, 1995, by the High Court and the appellant had filed this appeal on August 16, 1995. He had failed to explain this interRegulation m delay. Even the revision was filed beyond period of limitation and thus the trial Court''s judgment and decree became final.

Defendantappellants'' learned counsel, relying on Joginder Pal v. Raj Rani, 1995 PLJ 140 : 1995(2) RRR 449 and Dhanpat v. Punjab State and others, 1996 PLJ 579 : 1997(1) RCR 497 submitted that despite suit being decided on January 19, 1995, defendantappellants'' aforementioned revision filed against the interim order dated January 2, 1995, was maintainable. He further submitted that the lower appellate Court had wrongly dismissed appellants'' petition filed under Section 5 of the Limitation Act as the delay in filing the revision was condoned by the High Court vide order dated August 2, 1995. Thereafter the defendantappellants filed the appeal on August 14, 1995. In view of the Apex Court judgments reported in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 S.C. 1353 and State of Haryana v. Chandra Mani and others, JT 1996(3) SC 371 : 1996(2) RRR 82 the defendantappellants were not required to explain each day''s delay after their revision petition was decided. Naturally they took some time to engage a counsel, to obtain copies of judgment and decree to file an appeal. Within 11 days they filed the appeal. Thus, the learned District Judge ought to have condoned the delay.

Defendantappellants'' learned counsel valiantly argued that the defendants are seeking only one opportunity to lead evidence on their behalf. Their evidence was closed by the trial Court on January 2, 1995. He also submitted that the defendantappellants are willing to pay the decretal amount on the condition that the plaintiffrespondents should give security that in case the decree passed by the trial Court is reversed by the lower appellate Court, the plaintiffrespondents shall return the amount to the defendantappellants.

Plaintiffrespondents'' learned counsel strongly opposed the prayer and submitted that the plaintiffs'' suit was decreed on January 19, 1995. On March 14, 1995, the plaintiffs filed execution petition for recovery of Rs. 3,89,420.50 against the defendantappellants. On April 10, 1995, they deposited expenses of Munadi. On April 21, 1995, the bailiff went for attachment of defendantappellants'' property as they failed to pay the decretal amount. On April 25, 1995, plaintiffrespondents filed a petition for granting police help. Thereafter on April 27, 1995, they applied for obtaining certified copy of the order dated January 2, 1995, under Order 17 Rule 3 CPC. They filed revision on April 28, 1995. When notice was issued to the plaintiffrespondents, they filed Civil Misc. No. 8683CII of 1995 and submitted before the High Court that the suit had already been decreed on January 19, 1995. Till that date the defendantappellants suppressed this fact from the High Court. The learned counsel also submitted that the defendant appellants applied for obtaining certified copies of the judgment and decree of the trial Court on February 16, 1995. Copies were delivered to the defendantappellants on March 22, 1995. Despite having copies of judgment and decree passed by the trial Court with them, they suppressed this fact from the High Court that the suit had already been decreed.

Learned counsel argued with all vehemence at his command that though the defendantappellants filed revision against the order dated January 2, 1995, but nothing prevented them from challenging the trial Court''s judgment and decree passed on January 19, 1995, by filing a regular appeal before the lower appellate Court, but they waited for the decision of the revision petition, which was disposed of on August 2, 1995. Even thereafter immediately they did not file an appeal before the lower appellate Court, which was filed by them on August 14, 1995. Thus, according to him, there was a delay of 174 days in filing this appeal. He also submitted that the defendantappellants had no sufficient cause for filing the appeal after 174 days. This delay was not sufficiently explained by the defendantappellants. To substantiate his argument on the point as to what is a sufficient cause, he referred to Smt. Tara Wanti v. State of Haryana, 1994 PLJ 495 : 1994(3) RRR 247 : 1995(1) RRR 110.

Lastly, plaintiffrespondents'' learned counsel submitted that if the defendantappellants are willing to pay to the plaintiffrespondents, the plaintiffrespondents have no objection if the delay in filing the first appeal is condoned. He also expressed that the plaintiffrespondents are willing to furnish security to return the amount if the decree of the trial Court is varied or reversed.

Considering the chequered history of the case, it is evident that the defendantappellants tried their utmost to delay the proceedings. In any case if the delay is condoned, they will get an opportunity to canvass before the trial Court whether the order dated January 2, 1995, passed by the trial Court is liable to be set aside and they are entitled to adduce evidence on their behalf.

In the interest of justice, this appeal is allowed on the condition that if on October 1, 1997, defendantappellants pay Rs. 3,90,000/ to the plaintiff respondents by way of bank draft and the plaintiffrespondents furnish security to return this amount to the defendantappellants in case the decree passed by the trial Court in their favour is varied or reversed, the delay in filing the appeal shall stand condoned. But if the aforementioned amount is not paid to the plaintiffrespondents by or on October 1, 1997, this appeal shall stand dismissed.