Pradeep Kumar vs Kamal Kant & Others

Manoj K. Tiwari, J

By means of this petition, petitioner has challenged the judgment & order dated 12.07.2019 passed by Board of Revenue, Circuit Court, Nainital in Revision No. 52 of 2017-18.

Facts of the case, in brief, are as follows:

Petitioner filed a declaratory suit under Section 229-B of U.P.Z.A. & L.R. Act in the Court of Assistant Collector, Ist Class, Haldwani, Nainital, alleging that he has perfected his title over the land belonging to Raj Kumar Gupta (defendant no.1) by adverse possession. The said suit was registered as Revenue Suit No. 22/76 of 2002-03. The said suit was decreed ex-parte in favour of the petitioner vide judgment dated 10.05.2011. Defendant no. 1 moved an application under Order 9 Rule 13 C.P.C. for setting aside the judgment & decree dated 10.05.2011, which was summarily dismissed by Assistant Collector, Ist Class, Haldwani, Nainital/trial Court vide order dated 30.08.2011 as time barred. Defendant no. 1 preferred an Appeal against trial Court's order, which was registered as Z.A. Appeal No. 81 of 2010-11. The First Appellate Court allowed the said Appeal vide judgment dated 06.03.2013. Petitioner challenged the judgment rendered by First Appellate Court by filing Second Appeal, which was registered as Second Appeal No. 67 of 2012-13. The said Appeal was dismissed by Board of Revenue vide judgment dated 20.10.2014. Thus, feeling aggrieved, petitioner filed WPMS No. 2527 of 2014, which was allowed by a Co-ordinate Bench of this Court vide order dated 13.11.2014 and the orders passed by learned trial Court, First Appellate Court and IInd Appellate Court were set aside and learned trial Court was directed to first decide the delay condonation application before deciding the application under Order 9 Rule 13 C.P.C. Pursuant to the order of this Court, the application for setting aside ex-parte decree was restored on the file of the trial Court. Learned trial Court allowed the application for condoning the delay in filing Order 9 Rule 13 C.P.C. application vide order dated 22.08.2016. Petitioner's Revision against the said order was dismissed by Board of Revenue vide judgment dated 22.10.2016. WPMS No. 1337 of 2017 filed by the petitioner is pending disposal before this Court. Subsequently, learned trial Court allowed the application for setting aside ex-parte decree filed by defendant no. 1 vide order dated 16.08.2017. Petitioner's Revision against the said order was dismissed by Additional Commissioner, Kumaun Division vide judgment dated 17.05.2018. Petitioner's WPMS No. 2043 of 2018 against the said order is pending consideration before this Court.

Mr. Kamal Kant, defendant no. 2 (respondent no. 1 herein) also filed an application for setting aside ex-parte decree alongwith delay condonation application which was rejected by trial Court vide order dated 30.07.2018. He, thereafter, filed Revision before Board of Revenue being Revision No. 52 of 2017-18. Learned Board of Revenue vide order dated 12.07.2019 decided the Revision in favour of respondent no. 1 and allowed the application for setting aside ex-parte decree subject to payment of cost of Rs. 10,000/- to the petitioner. Thus, feeling aggrieved by the order dated 12.07.2019, petitioner has approached this Court.

Heard learned counsel for the parties and perused the record.

Courts of law are meant to do complete justice between the parties and justice should not be denied to a party merely on technicalities. Endeavor of the Court should be to do complete justice. Hon'ble Supreme Court has repeatedly said that rules of procedure are handmaids of justice, which cannot be permitted to scuttle the course of justice. Hon'ble Supreme Court in the case of Mysore Urban Development Authority Vs. S.S. Sarvesh, reported in (2019) 5 SCC 144, while dealing with a similar question, has observed as under:-

"16. Indeed, this case reminds us of the subtle observations of the learned Judge Vivian Bose, J., which His Lordship made in one of the leading cases of this Court in Sangram Singh v. Election Tribunal.

Vivian Bose, J., speaking for the Bench, in his distinctive style of writing made the following observations while dealing with the case arising out of Order 9 and reminded the courts of their duty while deciding the case. The observations are apt and read as under: (AIR p. 429, paras 16-17)

"16. ... a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.

... our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

Keeping the aforementioned statement of law in consideration and applying the same to the facts of this case, we have no hesitation in allowing this appeal and set aside the impugned order.

In our view, the courts below should have seen that the first appeal is a valuable right of the appellant and, therefore, the appellant Authority was entitled for an opportunity to prosecute their appeal on merits. If the appellant's advocate did not appear may be for myriad reasons, the Court could have imposed some costs on them for restoration of their appeal to compensate the respondent (plaintiff) instead of depriving them of their valuable right to prosecute the appeal on merits. This is what Vivian Bose, J. has reminded to the courts while dealing with the cases of this nature in Sangram Singh to do substantial justice to both the parties to the lis. Indeed, dismissal of the appeal in default and dismissal of the appeal on merits makes a difference. The former dismissal is behind the back of the litigant and latter dismissal is after hearing the litigant. The latter is always preferred than the former.

Hon'ble Supreme Court in the case of Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai Kalabhai Zalavadiya, reported in (2017) 9 SCC 700, observed in paragraph no. 19 of the judgment that it must be borne in mind "that the courts are meant to do substantial justice between the parties and that technical rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice".

Hon'ble Supreme Court has repeatedly held that expression "sufficient cause" used in Section 5 of Limitation Act is to receive liberal construction so as to advance substantial justice. In the case of G.M.G. Engg. Industries Vs. Issa Green Power Solution, reported in (2015) 15 SCC 659, Hon'ble Supreme Court has held as under:

"7. It is well settled that the expression "sufficient cause" is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bona fide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence.

While exercising the discretion for setting aside the ex parte decrees or condoning the delay in filing the application to set aside the ex parte decrees, the court is competent to direct the defendants to pay a portion of the decretal amount or the cost. In Tea Auction Ltd. v. Grace Hill Tea Industry, this Court has held as under: (SCC p. 108, para 15)

"15. ... A discretionary jurisdiction has been conferred upon the court passing an order for setting aside an ex parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non-appearance even on the date when the decree was passed, but also on other attending facts and circumstances. It may also consider the question as to whether the defendant should be put on terms. The court, indisputably, however, is not denuded of its power to put the defendants to terms. It is, however, trite that such terms should not be unreasonable or harshly excessive. Once unreasonable or harsh conditions are imposed, the appellate court would have power to interfere therewith."

First proviso to Order 9 Rule 13 C.P.C. provides that where the decree is of such a nature that it cannot be set aside as against a defendant who make an application for setting it aside, then it may be set aside as against all or any of the other defendants also.

Hon'ble Punjab & Haryana High Court in the case of Dharampal Singh Vs. Amar Singh & others, reported in 2013 (2) Civil Court Cases 069 (P&H), has held as under:

"4. This is a suit relating to title for immoveable property. The Will is said to have been propounded nearly 3 decades of death of the father. The fight is between two brothers and their representatives. There ought to be a proper adjudication for the party to defend his case. The ex parte decree which grants a right to immoveable property on the basis of a Will affects the right of inheritance to the entire estate. Although, the application for setting aside the ex parte decree has been initiated at the instance of the 18th defendant. I set aside the ex parte against all the defendants. This does not, however, require the Court to serve notice to un- served defendants or defendants who had not approached this Court for notice again. This is merely to afford an opportunity to anyone to participate at the trial without impleaded already by the fact that others had not joined the application for setting aside the ex parte decree."

I have gone through the impugned order passed by Board of Revenue. Learned Board of Revenue has allowed the application filed by respondent no. 1 mainly on the ground that similar application for setting aside ex-parte decree moved by defendant no. 1 (Raj Kumar Gupta) has been allowed, therefore, denying right of hearing to respondent no. 1, who is recorded Bhumidhar in respect of land in dispute, would lead to miscarriage of justice. Accordingly, the application filed by respondent no. 1 for setting aside ex-parte decree was allowed by Board of Revenue subject to payment of cost of Rs. 10,000/-.

Learned Board of Revenue has passed a discretionary order by allowing the application under Order 9 Rule 13 C.P.C. filed by respondent no. 1. This Court, in exercise of powers under Article 227 of Constitution of India, does not act as an Appellate Court and, therefore, cannot interfere with the discretionary order passed by Board of Revenue.

Hon'ble Supreme Court in the case of Raj Kumar Bhatia Vs. Subhash Chander Bhatia, reported in (2018) 2 SCC 87, has held as under:

"12. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhana Lodh v. National Insurance Co. Ltd., this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The trial court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21-9-2013 that an amendment of the plaint was allowed by the trial court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the plaintiff."

In such view of the matter, there is no scope for interference with the order passed by Board of Revenue.

Accordingly, the writ petition fails and is dismissed.

There will be no order as to costs.