Ram Prasad and Others vs Gadhiya and Others

Alok Sharma, J—The miscellaneous appeal has been filed against the order dated 12-5-2009 passed by the Additional District Judge (Fast Track) No. 9, Jaipur City, Jaipur whereby the application filed by the appellants-defendants No. 1, 3 and 4 (hereinafter ''the defendants'') under Order 9 Rule 13 CPC for setting aside the judgment and decree dated 25-4-2005 has been dismissed.

The facts of the case are that the respondent-plaintiff Gadhiya (hereinafter ''the plaintiff'') filed a suit for declaration and cancellation of sale deed dated 28-3-1971 against the defendants and one Jaipur Bhawan Nirman Sahakari Samiti a co-defendant, alleging that the sale deed dated 28-3-1971 executed by the defendants in favour of the Jaipur Bhawan Nirman Sahakari Samiti was null and void as also was the decree dated 6-8-1969. The plaintiff''s suit was decreed on decree dated 6-8-1969. The plaintiffs suit was decreed on 25-4-2005 as none appeared subsequent to filing of the written statement by the defendants.

The defendant Jaipur Bhawan Nirman Sahakari Samiti challenged the ex-parte decree dated 25-4-2005 by filing an application under Order 9 Rule 13 CPC, which was allowed on 10-1-2007 and the suit is now stated to be pending.

The defendants also belatedly filed an application under Order 9 Rule 13 CPC on 23-2-2008 also challenging the Order 9 Rule 13 CPC on 23-8-2008 also challenging the judgment and decree 25-4-2005 on the ground that they were not aware of the plaintiff''s suit nor notice of the suit served on them. However the learned trial court vide the impugned order dated 12-5-2009 dismissed the application filed by the defendants holding that the defendants had been served, engaged a lawyer, filed written statement and thereafter had been remiss in their defence leading to the ex-parte decree which could not be set aside under Order 9 Rule 13 CPC for lack of any legally sustainable grounds and being based on false facts contrary to the record and also for being beyond limitation for such application. Hence this appeal.

Heard learned counsel for the parties and perused the material available on record.

Application under Order 9 Rule 13 CPC was filed belatedly on 23-2-2008, after a delay of about two years ten months, without any application under Section 5 of the Limitation Act. Aside of the aforesaid, the case set up with regard to lack of knowledge was found by the trial court to be false. Counsel for the defendants has not been able to breach the reasoning and iron-clad conclusions of the trial court holding that no case for setting aside the ex-parte decree dated 25-4-2005 was made out. A perusal of the impugned order dated 12-5-2009 clearly indicates that the trial court while dismissing the defendants'' application under Order 9 Rule 13 CPC has found that the defendants were served and then duly represented through their Advocate Satyapal Gurjar, who appeared before the court on 27-11-2003, filed the defendants'' written statement and was also present at the time evidence of the plaintiff. Thereafter no evidence was produced by the defendants. Then having obtained No Objection from Advocate Satya Pal Gurjar on 11-10-2007, another Advocate Ashok Dubey appeared on behalf of defendants. (If the defendants had not been served or engaged Satyapal Gurjar, there would have been no occasion to obtain a NOC from him. Instead the trial court would have been informed of the mischief.) The trial court has further held that although the knowledge of impugned decree 25-4-2005 has been claimed by the defendants to be in winter vacations of 2007, the basis of the knowledge was not disclosed. Further the application under Order 9 Rule 13 CPC was filed only on 23-2-2008, which was also in any event again beyond the period of thirty days from the date of knowledge, on a very indulgent construction of Article 123 of the Limitation Act.

However it obtains on record and the plaintiff''s counsel admits that the judgment and decree dated 25-4-2005 has been set aside on an application under Order 9 Rule 13 CPC at the instance of defendant No. 5 Jaipur Bhawan Nirman Sahakari Samiti. It is also evident that the decree dated 25-4-2005 is indivisible both against the defendants and the co-defendant Jaipur Bhawan Nirman Sahakari Simiti. It has been held by the Hon''ble Supreme Court in the case of Bank of India Vs. Mehta Brothers and Others, (2008) 4 BC 485 : (2008) 10 JT 471 : (2008) 12 SCALE 680 : (2008) 13 SCC 466 that if an indivisible decree is set aside against one defendant it ought to be ordinarily so also against the others. The proviso to Order 9 Rules 13 CPC similarly provides. However Senior Counsel Mr. R.P. Singh for the plaintiff submits that the merits of the application under Order 9 Rule 13 CPC cannot be addressed when it is hopelessly barred by limitation and more so when the application was not accompanied by an application under Section 5 of the Limitation Act seeking condonation of delay.

The Hon''ble Supreme Court in the case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by Its President etc., AIR 2012 SC 2010 : (2012) 3 RCR(Civil) 1 : (2012) 4 SCALE 666 : (2012) 6 SCC 430 : (2012) AIRSCW 3017 : (2012) 3 Supreme 460 has held that experience reveals that a large number of cases are filed on false claims or evasive pleas are introduced by the defendant to cause delay in the administration of justice and this can be sufficiently taken care of if the courts adopt realistic approach in granting restitution and visiting the petitioner with appropriate costs. Relying on the judgment in the case of Rameshwari Devi and Others Vs. Nirmala Devi and Others, (2011) 8 JT 90 : (2011) 3 RCR(Civil) 932 : (2011) 6 SCALE 677 : (2011) 8 SCC 249 : (2011) 8 SCR 992 : (2011) 5 UJ 2962 the Hon''ble Supreme Court has held that "unless wrongdoers are denied profit or undue benefit from frivolous litigations, it would be difficult to control frivolous and uncalled-for litigations. False averments of facts and untenable contentions are serious problems faced by courts and the other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look and requires some time, at time years, before the court is able to see through, discern and reach to the truth." Noting that courts are usually short of time because of huge pendency of cases, it has been held that it is the duty of the court to take appropriate steps to uphold the truth and do justice. The Hon''ble Supreme Court in the case of A. Shanmugam (Supra) has held as under:-

"43.4 Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 43.5 It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process."

In the over all facts of the case and specially considering the egregiously condemnable conduct of the defendants as also the fact that the indulgence of this court in setting aside of the ex-parte decree dated 25-4-2005 at this stage will entail pushing back the matter several years, the application of the defendants under Order 9 Rule 13 CPC would have been liable to be dismissed. However, considering-that an indivisible decree against a co-defendant has admittedly been set aside at the instance of one of the co-defendant, this civil miscellaneous appeal against the dismissal of the application under Order 9 Rule 13 CPC can be considered in the interest of justice and delay condoned on the oral request made by the counsel for the defendants in court. The plaintiff can be compensated on payment of exemplary costs by the defendants No. 1, 3 and 4. Consequently, in the interest of justice and fact of suit pending at the instance of a co-defendant on its application under Order 9 Rule 13 CPC having been allowed, the appeal is allowed and the impugned judgment and decree dated 25-4-2005 is set aside on payment of exemplary costs of Rs. 2 lacs. Rs. 1 lac be deposited with the Rajasthan State Legal Services Authority at Jaipur and the remainder Rs. 1 lac be paid to the plaintiff. The defendants No. 1, 3 & 4 shall pay the amount of costs as directed on or before 25 August, 2015, failing which this order shall stand recalled and the miscellaneous civil appeal under consideration shall stand dismissed.

It is further directed that the trial court shall conclude the trial within a period of one year, commencing First September Two Thousand and Fifteen (1-9-2015) as the suit relates to the year 2003. No adjournment on the mere askance of the parties shall be allowed. Adjournment requests will be considered by the trial court only on an application in writing detailing exceptional reasons and be granted in the discretion of the court for good cause. It is further directed that in the event of non cooperation by the appellants-defendants, other defendant or for that matter the plaintiff, the trial court shall be free to proceed ex-parte.