Mohan Singh vs Keshav

Pankaj Mithal, J.—Heard Sri Rahul Sahai, learned counsel for the petitioner and Sri Rahul Sripat, learned counsel appearing for the respondent.

Original Suit No.630 of 2001, Keshav v. Mohan Singh, for specific performance of an agreement to sale dated 01.02.1997 was decreed ex-parte on 21.07.2006.

The petitioner on 07.05.2007 filed an application under Order 9, Rule 13 CPC for setting aside the aforesaid ex-parte decree along with an application for condonation of delay under Section 5 of the Limitation Act.

The delay condonation application has been rejected by the order dated 20.04.2015 and the revision against the same has been dismissed on 21.09.2016.

These two orders rejecting the delay condonation application and the revision thereof have been impugned by the petitioner by means of this petition.

The parties have exchanged necessary pleadings and agree for final disposal of the petition at the stage of admission itself.

The submission of Sri Sahai, learned counsel for the petitioner, is that there was no justification in rejecting the delay condonation application when the Courts below have held that the petitioner acquired the knowledge of the ex-parte decree in January 2007. There was only a short delay of about two months in filing application under Order 9, Rule 13 CPC which was explained. The courts below are not justified in disbelieving the said explanation.

Sri, Rahul Sripat, learned counsel for the respondent, on the other hand, contends that the story set up for getting delay condoned is concocted and the Courts below have concurrently disbelieved the same and as such there is no occasion for any interference with the said finding in exercise of extra ordinary jurisdiction.

I have perused the impugned orders and find that the Court of first instance has recorded that even assuming that the petitioner acquired knowledge of the ex-parte decree through execution proceedings in January, 2007, the explanation for not filing the application for setting aside the same immediately is not believable.

The explanation of the petitioner was that after he acquired the knowledge of the ex-parte decree, he had contacted the mediators, who have negotiated the matter for settlement of the dispute whereupon it was agreed that the respondent would not proceed with the execution provided he pays an additional amount of Rs.10,000/- as damages. Thus, the petitioner decided not to move an application under Order 9, Rule 13 CPC but was compelled to file it as the respondent failed to honour the said settlement.

This story has been disbelieved by the Courts below on the ground that there was no material to show that any such negotiation had taken place or that any payment of Rs.10,000/- had exchanged hands.

In this regard, Sri Rahul Sahai, learned counsel for the petitioner, has placed two affidavits of one Sri Vijay Singh and another of Sri Brij Mohan, filed as Annexure Nos.5 and 6 to the petition, wherein, it has been stated that the petitioner has accepted his mistake before the three arbitrators and had agreed to pay additional sum of Rs.10,000/- towards the damages/expenses for the litigation to the respondent. The said amount of Rs.10,000/- was paid in the presence of the mediators.

The aforesaid affidavits are at least a piece of evidence to show that some negotiation had taken place between the parties after the petitioner had acquired the knowledge of ex-parte decree in January, 2007 and that as alleged a sum of Rs.10,000/- was paid before the arbitrators.

This material evidence on record has not been controverted by any other piece of evidence.

The Courts below though have referred to the above affidavits but only in respect of the negotiation, which had taken place between the parties prior to January, 2007 and by pointing out some contradictions in the statement regarding the said negotiation, has disbelieved the story of settlement between the parties, which had taken place after January, 2007 and the payment of Rs.10,000/- thereof.

In view of the above, I find that the above material evidence in the forms of affidavits of Sri Vijay Kumar and Sri Brij Mohan has not been properly considered by the Courts below, which vitiates the impugned orders.

There is no material to falsify the stand of the petitioner that there were some negotiation after January, 2007 and that a sum of Rs.10,000/- was also paid by him in the presence of mediators.

The aforesaid facts sufficiently explained the delay in filing application under Order 9, Rule 13 CPC.

Accordingly, the impugned order dated 21.09.2016 and 20.04.2015 are quashed and the delay in filing the application filed under Order 9, Rule 13 CPC is condoned subject to payment of Rs.10,000/- cost to the respondent and the Court of first instance is directed to proceed and decide the application for setting aside the ex-parte decree in accordance with law most expeditiously if possible within a period of three months.

The petition is allowed as above.