Palwinder Kaur and others vs Gajjan Singh and others

Bakhshish Kaur, J.

1.An ex parte decree that the Plaintiffs (now Petitioners) are co-sharers in the land in dispute, was passed by Additional Civil Judge (Sr. Division), Patti. Aggrieved by the judgment and decree, the Defendants Respondents filed an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the ex parte decree. During the pendency of the said application, the trial Court stayed the implementation of the decree vide order dated 7.2.2001 which is under challenge. In addition to this, the trial Court has framed issues arising out of the pleadings of the parties in the application under Order 9 Rule 13 read with Section 151 CPC and now the case is fixed for evidence of the Defendants. It is this order which has been impugned in this revision petition.

The civil revision has not been filed within the prescribed period of limitation. This necessitated the filing of application u/s 5 of the Limitation Act (in short the Act). It is averred therein that since they were in possession of the land being legal hears of the deceased, they were not advised to file the revision. On this assumption, they had not challenged the stay order.

I have considered the submissions made by the Learned Counsel and the cause shown in the application in hand.

I hardly find any ground to attribute mala fides on the part of the Petitioners. They are the persons who are directly affected by the impugned order staying the execution of the decree already passed in their favour. If at an early stage, due to ill advice of someone they had not filed the revision, their revision cannot be thrown on the ground of delay. In construing Section 5 of the Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice.

In exercise of discretion u/s 5 of the Limitation Act (in short the Act), the Court should adopt a pragmatic approach, as observed by the Apex Court in '''' Ved-abai alias Vaijayanthabai Baburao Patil v. Shantaram Baburao Patil and others - AIR 2001 SCW 2809." It is further observed as under:

... The court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression sufficient cause, the principle of advancing substantial justice is of prime importance. In our view in this case, the approach of the learned Civil Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion u/s 5 of the Limitation Act is exercised by the Civil Judge in contravention of the law laid down by this Court, that the expression sufficient cause should receive liberal construction, in catena of decisions (See The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, ) and Smt. Sandhya Rani Sarkar Vs. Smt. Sudha Rani Debi and Others,

In "M.K. Prasad v. P. Arumugam2- (2001)129 P.L.R. 652 (S.C.)." it has been observed that "in construing S. 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The Court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section."

It is a case where the party had acted on the ill advice of the advocate by not filing revision. Thus, the conduct of the Petitioner would not castigate him as man irresponsible litigant. The interest of justice, therefore, demands that he should not be deprived of his right by ousting him from the litigation. The explanation furnished by him appears to be satisfactory. The delay of 28 days in filing the revision is, therefore, condoned.

Consequently, the application u/s 5 of the Limitation Act is allowed.

C.R. No. 4623 of 2001.

The Plaintiffs-Petitioners are claiming possession of the land in dispute on the basis of the decree in their favour. They are not going to suffer any irreparable loss or injury by the passing of the impugned order. Anyhow, as the trial Court has only fixed the case for evidence of the Defendants-Respondents, therefore, in my opinion, this revision can be disposed of without issuing notice of motion to the other side, by directing the trial Court to dispose of the application under Order 9 Rule 13 read with Section 151 CPC as early as possible, preferably within 4 months from the next date of hearing already fixed before the trial Court, parties are also directed to assist the court by producing their evidence within the time-frame. In case any of the parties fail to produce evidence by resorting to delaying parties the trial Court will be at liberty to pass necessary order in accordance with law.

Copy of the order be given dasti on payment of usual charges.