Prem Singh vs XIIth Additional District Judge, Agra and others

Ran Vijai Singh, J.—This writ petition has been filed for issuing writ of certiorari quashing the order dated 20.7.2000, passed by XIIth Additional District Judge, Agra in Misc. Case No. 82 of 1990. Prem Singh v. Roshan Singh, by which the petitioner''s application, filed u/s 5 of Limitation Act, for condoning the delay, in filing application under Order XLI, Rule 19 of the CPC (hereinafter referred to as C.P.C.), has been rejected. The facts giving rise to this case are that it appears that an agreement was entered in between the petitioner and the respondent No. 3 for execution of sale deed of 1/3rd share in disputed plot No. 208, measuring about 1 bigha 4 biswa, khasra No. 209, area 6 bigha 1 biswa 10 biswansi, total 7 bigha 7 biswa 10 biswansi for consideration of Rs. 35.000.00, out of which Rs. 10,000.00 was alleged to have been paid as an earnest money. However, the sale deed was not executed, in the time, stipulated in the agreement, therefore, the defendant-respondent No. 3 had filed Original Suit No. 328 of 1988 for Specific Performance of Contract to execute the sale deed. The suit was decreed on 20.7.1990.

Aggrieved by the aforesaid judgment, the defendant-petitioner filed appeal before this Court. Thereafter, because of change of pecuniary jurisdiction, the aforesaid appeal was transferred before the court below. After transfer on 30.8.1996, a notice was issued by the court below to the appellant, fixing 31.10.1996. On 31.10.1996, it appears, another date was fixed. The appellant did not appear and the case was adjourned for 15.2.1998. Thereafter, it was again adjourned for 29.3.1998. On 29.3; 1998, the counsel, who was appearing in the suit, was informed by the court concerned to appear in the court. Pursuant thereto, he appeared before the court below and made an endorsement on the order-sheet that appellant is not responding, hence notice be issued to the appellant. The court below, taking the service of notice on the appellant sufficient through counsel, on 8.7.1997 dismissed the appeal for want of prosecution.

It appears that an application was filed by the appellant thereafter, under Order XLI, Rule 19, C.P.C., to re-admit the appeal alongwith an application for condonation of delay. In the application it was stated that, at no point of time, the petitioner/ appellant was informed about the transfer of the appeal before the court below and the date fixed in the matter, and he came to know about the same only on 9.4.1999 when he had taken a copy of khatauni from the Lekh pal. It is also stated that since 9.4.1999 to 14.4.1999 the appellant was busy in filing objection in execution case of the suit property, therefore, could not file the aforesaid application.

The lower appellate court, taking note of the fact that the service of notice was sufficient as the counsel had already appeared, rejected the application for condonation of delay. The learned counsel for the petitioner while assailing this order has contended that once the notice was issued to the appellant, a specific report ought to have been there that the notice issued by the court was served on the appellant. He has also drawn attention of the Court towards the provisions contained in Order III, Rule 4 (3) (b), C.P.C. In the submission of the learned counsel for the petitioner, the service of notice upon the counsel who was appearing before the court below in the suit proceeding was not sufficient, as the appeal was filed before the High Court through different counsel, meaning thereby, the earlier vakalatnama executed in favour of the counsel appearing in the suit proceeding has been terminated. He has also submitted that there may not be sufficient explanation for condoning the delay in filing the application under Order XLI, Rule 19, but on that count, the application should not have been rejected.

Refuting the submissions of the learned counsel for the petitioner, Shri Pradeep Kumar, learned counsel appearing for respondent has submitted that the provisions contained under Order III, Rule 4 (c) are mandatory in nature, and unless the vakalatnama, i.e., authorisation to appear in the case is specifically withdrawn or some order is passed by the Court to that effect, that will continue and mere engagement of another counsel will not mean that the earlier counsel has been disengaged. He has also submitted that the petitioner has contested the execution matter and filed objection there and the objection was rejected, and ultimately, the sale deed was executed in favour of the respondent-plaintiff on 7.11.1998 through court, and the plaintiff-respondent has been in possession throughout thereafter. In the submission of the learned counsel for the respondents, the writ petition lacks merit and deserves to be dismissed.

I have heard Shri H.N. Singh, Ms. Anita Tripathi, Shri Sharat Chandra Upadhyay, learned counsel for the petitioner and Shri Pradeep Kumar, learned counsel appearing for contesting respondents and perused the record.

From the perusal of the impugned order it transpires that the court below has proceeded on the assumption that the appellant was having knowledge of the pendency of the appeal and participated in the proceeding and deliberately not made the submission on merit. While coming to this conclusion, learned Judge has recorded that notice was issued to the appellant in the appeal as well as in the execution proceeding, but he has not chosen to appear in the appeal. The Court found that the service of notice was sufficient as the counsel who had appeared in the suit proceeding was informed and he appeared before the court.

Shri H.N. Singh, learned counsel appearing for the petitioner has invited attention of the Court towards sub-rule (3) (b) of Rule 4 of Order III, C.P.C. which reads as under:

Order III, Rule 4 (3) (b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).

In the submission of the learned counsel for the petitioner, from perusal of the aforesaid rule, it transpires that the knowledge of the suit proceeding will only be material when the proceeding has commenced in that very court. In his submission, after the decree in the suit, the petitioner/defendant has filed an appeal before High Court and there a different counsel was engaged. The appeal was admitted and interim order was also granted, therefore, by any stretch of imagination, it cannot be said that the earlier counsel, who was prosecuting the suit proceeding, shall continue even after transfer of the appeal from High Court to the court below. In his submission, after engagement of another counsel in the High Court, the authorisation/power given in the suit proceeding by the defendant-petitioner would cease to operate and it cannot revive automatically unless fresh authorisation is given by the appellant.

Shri Pradeep Kumar, learned counsel appearing for respondent has submitted that as soon as the appeal has been transferred to the court below, the appeal pending before the court below will be treated as continuation of the suit proceeding in view of sub-section (2) (c) of Rule 4 of Order III, and therefore, the counsel who has put in appearance in the suit proceeding shall continue to be the counsel on behalf of the defendant.

The argument advanced by the learned counsel for the petitioner appears to be misconceived for the reason that if the sub-rule (2) and sub-rule (3) (b) of Rule 4, Order III, C.P.C. is read together, it would transpire that appointment of the pleader shall be deemed to be in force until determined with leave of the Court by writing signed by the client or pleader, as the case may be, and filed in Court, or until the client or the pleader dies or until all the proceedings in dispute are ended so far as regards the client. Sub-rule (2) (c) of Rule 4 provides that the authorisation will continue in appeal from any decree or order in the suit. The sub-rule (3) (b) provides nothing in sub-rule (2) shall be construed as authorising service on the pleader of any notice or document issued by any Court other than the Court for which pleader was engaged, except where such service was specially agreed to by the client in the document referred to in sub-rule (1).

Here, in this case, although the appeal was filed before the High Court, and later on transferred before the court below, but at no point of time, the client has withdrawn the authorisation or the Court has determined such authorisation, and here the proceeding after transfer was going on before the court below and there was a valid engagement of the counsel in the suit. Therefore, in view of the legal proposition that the appeal is the continuation of the suit proceeding, the authorisation of the counsel shall be treated to be valid one. The only question remains as to whether on the specific statement of the counsel that he has no instructions and client is not responding in the matter, was it proper on the part of the court below to proceed with the matter in absence of the counsel, particularly, under the circumstances when the file was taken away and matter was brought before the High Court.

From perusal of the impugned order, it transpires that the notice was also issued to the appellant, but it has not been recorded by the learned Judge deciding the application that that notice was ever served upon the appellant, and this could also not be pointed out by the learned counsel appearing for the respondent that the notice issued by the court below was served personally on the defendant-petitioner.

On the contrary, a document has been shown, which has been brought on record through supplementary-affidavit with report of the process server, which reads as under:

From the perusal of report of the process server, it transpires that the notice was not served personally and the same was pasted on the door of the petitioner/appellant as he was not available there. It also transpires that while this pasting was done, nobody has witnessed it. In such circumstances, I am of the view that in absence of any concrete proof, for recording the satisfaction of the court, with regard to the service of notice on the petitioner/appellant, the court below should not to have proceeded with the matter, and the only course open was to issue a fresh notice to the appellant and not to proceed on the assumption that, the counsel had knowledge, and in spite of the positive assertion of the learned counsel (who appeared before the court) that the appellant was not responding.

So far as the knowledge of the petitioner with regard to the filing of the application under Order XLI, Rule 19 is concerned, it was filed on 24th April, 1999 with the positive assertion that the defendant had acquired knowledge of the aforesaid order only on 9.4.1999, and after coming to know he had also filed objection on 26.4.1999 in the execution case. The court below has taken the view that the application filed by the appellant was highly barred by time and there was no proper explanation for not filing the application well within time. The court had also proceeded with the assumption that in spite of the knowledge of the proceeding, the restoration application was not filed.

From the perusal of the record, it transpires that there is no material on the record to establish this fact that the petitioner has got knowledge about the order of the dismissal of the appeal prior to 9.4.1999. The court below has proceeded only on the assumption that since the petitioner has filed objection in the execution case and his counsel has also appeared in execution as well as in appeal proceedings, therefore, it was very well in the knowledge of the petitioner and he ought to have filed the recall application promptly without any delay.

On the cost of repetition, it may be observed that once the court has issued notice to the appellant, then without there being any prima facie satisfaction with regard to service of notice, the court should not have proceeded on the assumption that the counsel is appearing when the counsel himself endorsed that his client is not responding, Coupled with the fact that the counsel who was appearing in suit has subsequently been changed while filing appeal in the High Court, taking that into consideration, I find that there was sufficient explanation to condone the delay in filing the restoration application. Otherwise also, if the court below was of the opinion that there was no sufficient explanation to condone the delay and to restore the appeal to its original number, in that eventuality, the court below ought to have examined the matter with a view to see the purpose of establishment of courts, which certainly are established to impart the substantial justice to parties. While considering the matter of condonation of delay, the merit of the case was also to be taken into consideration.

In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , the Apex Court, while dealing with the expression ''sufficient cause'', for the purposes of condonation of delay, has observed as under:

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 must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds, but because it is capable for removing injustice and is expected to do so.

Further, in the case of State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, , the Apex Court, while dealing with the word ''sufficient cause'', has observed as under:

Para 12.... The expression ''sufficient cause'' should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical detention of sufficient cause for explaining every day''s delay. The factors which are peculiar to and characteristic of the functioning of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-�-vis private litigant could be laid to prove strict standards of sufficient cause.

Further in the case of Ramji Dass and others v. Mohan Singh. 1978 ARC 496, the Apex Court has held, "we are inclined to the view that, as far as possible. Courts'' discretion should be exercised in favour of hearing and not to shut out hearing."

A Division Bench of this Court in First Appeal From Order No. 2023 of 2010, Ram Garib and another v. Ram Prasad Mishra, decided on 11.2.2011, while dealing with the appeal filed against an order of rejection of application under Order IX, Rule 13, C.P.C. has also taken the same view and set aside the ex parte decree.

While dealing with an application filed u/s 5 of the Indian Limitation Act, this Court in the case of Hindalco Industries Limited. Vs. Brijesh Kumar Agarwal and Another, , has observed that the court should decide the cases on merit instead of scuttling the process of justice on technicalities. Taking note of that, I find that the order passed by the court below is contrary to the settled provisions of law, and there was sufficient cause to condone the delay.

In view of that, the impugned order dated 20.7.2000 is hereby quashed. The writ petition succeeds and is allowed. I would also like to allow the restoration application as well and restore the appeal to its original number. Of course, the inconvenience caused to the plaintiff-petitioner is to be compensated, and for that, I impose a cost of Rs. 5,000 on the petitioner which is to be paid to the defendant-respondent through his counsel, or directly. The lower appellate court is directed to decide the appeal on merits, if possible, within a period of one year from the date of receipt of certified copy of the order of this Court alongwith receipt of payment of cost to the plaintiff/ opposite party, without granting any unnecessary adjournments to the learned counsel for the parties.

Shri Pradeep Kumar, learned counsel appearing for respondent has submitted that since the sale deed has already been executed and the applicant is in possession, therefore, the allowing of this appeal may affect his possession. I am of the view that nothing would turn by allowing of the restoration, unless the appeal is allowed and decree, passed by the court below, is set aside, everything, which has been done by the executing court, that shall continue.

It may be clarified that I have not addressed myself on the merits of the case and the learned court below shall proceed with the appeal independently without being influenced by any of the observations made by me in this judgment.