Rajendra Bahadur Singh vs Jugul Kishore Sureka and Others

D.S. Sinha, J.—Heard Sri Shashi Nandan, learned, counsel for the Petitioner and Sri Manoj Misra, learned counsel representing the contesting Respondent no. 1.

Orders dated 25th March, 1991 and 28th October, 1989, passed by the Respondents no. 2 and 3 respectively, are under challenge in this petition under Article 226 of the Constitution of India.

The Respondent no. 1 brought an action against the Petitioner u/s 21(a) of the U.P. Act 13 of 1972 in the Court of the Civil Judge,'' Azamgarh for his eviction from the disputed premises. It appears that on 28th September, 1988, which was the date fixed for consideration of the matter, the Petitioner did not appear and an exparte order was passed. After the lapse of a period of about three months i.e. on 21st December, 1988, the Petitioner applied for setting aside the ex parte order dated 28th September, 1988.

Application of the Petitioner was rejected by the Respondent no. 3 on 28th October, 1989 on the ground that the application was barred by . Limitation and there was no prayer for condonation of delay.

Aggrieved by the order of the Respondent no. 3 dated 28th October, 1989, the Petitioner preferred an appeal before the Respondent, no 2. The appeal of the Petitioner was also rejected by the Respondent no. 2 on 25th March, 1991. Hence this petition.

A certified copy of the order-sheet of the case recorded by the Respondent no. 3 has been filed in this Court along with the counter affidavit filed on behalf of the Respondent no. 1. The proceedings on 27th May, 1988 are recroded on the order-sheet thus:

27-5-88 - Case called out several times, Applicant counsel present. None for O. P. Although he is served sufficiently by refusal. Proceed ex parte against O. P. Fix 26�)8-88 for ex parte evidence.

Form the proceedings recorded on 27th May, 1988 extracted above, it is clear that the Petitioner was served by refusal. There is whisper either in, the application dated 21st September, 1988 whereby the Petitioner had prayed for setting aside the ex parte order dated 28th September, 88 and a copy whereof is annexure ''IP-to the petition or in the petition before this Court that the Petitioner had not actually "refused the notice of the proceedings. Of course there is a general averment that neither notice of the case was sent to the Petitioner nor he had any information in that regard. This general averment, in the opinion of the Court, is not sufficient to displace the presumption about service by refusal recorded by the Respondent no. 3. The Petitioner does not appear to have discharged the burden of rebutting the presumption of service against him.

The Respondent no. 3 rejected the prayer for setting aside the ex parte order dated 28th September, 1988 on the ground that the application '' for setting aside was barred by time and that this was not accompanied by any application, u/s 5 of the Limitation Act, 1963, for condonation of delay. It cannot be disputed that prima facie the application for setting aside ex parte order dated 28th September, 1988 was moved beyond one month, the period prescribed for moving such application. To be precise, there was delay of about there months. It is also not disputed that there was no prayer made by the Petitioner for condonation of delay, either oral or in writing. In these circumstances, no choice was left �.with the Respondent no. 3 except to dismiss the application for setting aside the ex parte order dated 28th September, 1988 as barred by limitation.

Section 3 of the Limitation Act, 1963 mandates that subject to the provisions contained in Sections 4 - 24, every suit instituted, appeal preferred, and application made after the prescribed period should be dismissed even though the limitation is not set up as a defence. There is no doubt that the mandate with regrad to the dimissal of suit, appeal or application instituted, preferred and made after the prescribed period is subject to the provisions of Sections 4 - 24. Sections 5 and 14 of the Limitation Act clothe the Court with power and discretion to grant extension of the prescribed period in certain circumstances. But the power and discretion of the Court has to be invoked expressly. There is no duty cast upon the Court to exercise the power and discretion under Sections 5 and 14 of the Limitation Act in the absence of any prayer being made therefor, either oral or in writing.

Indisputably, before the Respondent no. 3 no prayer for exercise of power and discretion u/s 5 of the Limitation Act, either oral or in writing, was made. In these circumstances, the Respondent no. 3 cannot be said to have committed any error much less an error of law apparent on the face of record in rejecting the application of che Petitioner for setting aside the ex parte order dated 28th September, 1988 as barred by time.

It would be pertinent to notice that even at the appellate stage the pertitoner did not make any prayer, whatsoever before the Respondent no. 2 for condonation of delay. The Respondent no. 2 has endorsed the view taken by the Respondent no. 3 that the application of "the Petitioner was barred by time and, in the absence of any prayer for condonation of delay the same could not be entertained. The Court has carefully scrutinised the order of the Respondent no. 2 passed in appeal and does not find any such legal infirmity which may warrant interference by this Court in proceedings under Article 226 of the Constitution of India. All told, the impugned orders of the Respondents no. 2 and 3 are sound in law and need not be disturbed. .

Sri Shashi Nandan, learned counsel for the Petitioner, prays that the Petitioner may be granted some reasonable time to comply the order dated 28th September, 1988� passed by the Respondent no. 3. Sri Manoj Misra, learned counsel appearing for the contesting respoadent does not object to the prayer of the Petitioner with regard, to grant of time for complying the order dated 28th September, 1988. The Court considers six months to be reasonable time which may be granted to the Petitioner for complying the order dated 28th September, 1988. The Petitioner is therefore, Ranted six months'' time, to be computed from today, to comply the order of the Respondent no. 3 dated 28th September. 1988, vacate the premises in dispute and hand over vacaht possession thereof to the Respondent no 1 peacefully. After the expiry of the time granted by this Court, the order of the Respondent no. 3 dated 28th September, 1988 shall become executable at once.

In the result, the petition fails and is dismissed subject to the observations and directions made above.