Shantiben Jivangar and Others vs Rajgor Bhanushanker Naranbhai and Others

Jayant Patel, J.—The short facts of the case are that the suit was filed by trustees of Narmadeshwar Mahadev Temple against legal heirs of deceased Bavaji Jivangiri Harigiri, his widow and others for recovery of the possession of the suit premises and mesne profit for unauthorised utilisation of the premises. The basis of the suit was that deceased Bavaji Jivangiri Harigiri was doing puja work in the temple, but he had expired and thereafter, the trustees of the trust called upon them to vacate the premises allotted to his family member, but the premises was not vacated and therefore, the suit was filed and the compensation by way of mesne profit was prayed at Rs. 300/- per month. In response to the summons issued by the Civil Court, the Defendants had appeared through their advocate and the matters were adjourned from time to time, but no reply was filed and therefore, right to submit written statement was closed. Thereafter, the learned Judge framed issues. The evidence was recorded and ultimately, the judgment and the decree was passed on 02.07.2002, whereby the Defendants were directed to handover the possession of the suit premises and it was further directed that they shall pay the mesne profit of Rs. 6,600/- for 22 months, i.e. from 01.02.1996 plus notice fees of Rs. 250/-, total Rs. 6850/- and until the possession is actually handed over, they shall continuously pay the amount of Rs. 300/- per month being the mesne profit for unauthorised utilisation of the property and also the expenses of Rs. 500/- for cost of the suit. It appears that thereafter, the original Defendants-Petitioners herein preferred Civil Misc. Application No. 5/03 before the same court for setting aside of the ex parte judgment and the decree under Order 9 Rule 13 and u/s 151 of the Code of Civil Procedure. As there was delay in preferring the said application for setting aside of the ex parte judgment and the decree, the application for condonation of delay was also made. The Civil Court heard the application for condonation of delay and found that summons was duly served and the original Defendants had appeared and thereafter, the legal heirs were also brought on record and the matters were adjourned from time to time and inspite of the same, no written statement was filed and the Defendants were careless in prosecuting the matter and the ground of transferring the matter from one court to another could not be said to be sufficient since in the other court also where the matters were transferred, there were adjournments and therefore, it was found by the Civil Court that the application for condonation of delay is not made with bonafide and therefore, it has rejected the application. Under these circumstances, the present revision petition before this Court.

I have heard Ms. Desai for the Petitioners and Ms. Mandavia for the Respondents.

As such, if the application for condonation of delay is taken into consideration, it appears that there was delay of 1 year 1 month and 5 days in preferring the application for condonation of delay.

As per the Petitioners-original Defendants, when the notice was served, they came to know that the judgment and the decree has been passed. The Petitioners-original Defendants contended that they are illiterate persons residing in village and therefore, they were not aware and they were not communicated by the lawyer and if the date of intimation of the judgment and the decree is considered, i.e., 30.04.2003, then there is only delay of 97 days and it was submitted that if the premises is got vacated as per the ex parte judgment and decree, great prejudice would be caused and therefore, it was submitted that the delay be condoned. The Civil Court after recording the submissions has found that the delay was not sufficiently explained since after the summons was served, the Defendants did appear through advocate and the matter was transferred to another court where also there were adjournments. The pertinent aspect is that the Civil Court has not considered the point about the delay after the judgment and decree came to be passed by the Civil Court and it has given more weightage to the period prior to the judgment and the decree. It is hardly required to be stated that in the matter of condonation of delay, the Court has to take into consideration the explanation submitted for the period after the expiry of the limitation period and before the application is filed. So far as the period prior to the judgment and decree of the Civil Court is concerned, that was an aspect which may be required to be taken into consideration in the main application for setting aside of the ex parte judgment and decree, but not in the application for condonation of delay.

It is by now well settled that normally the approach of the Court would be to take lenient view on the aspect of delay and if lenient view is to be taken, the aspect of imposing suitable cost by way of compensation on the aspect of delay would also be required to be considered. In the present case, the lower court has not considered the aspect as to whether delay can be suitable compensated by imposing appropriate cost or not. Considering the facts and circumstances, it appears that since the question of imposing of appropriate cost by way of compensation on the aspects of delay has not been taken into consideration, it can be said that there is a jurisdictional error committed which may attract revisional jurisdiction of this Court u/s 115 of the Code of Civil Procedure. It appears to me that appropriate cost in the present case should be Rs. 2,500/- by way of compensation on the aspects of delay.

The another aspect in the matter of setting aside the ex parte judgment and decree is that the court has to ensure that no undue benefit is made available to any litigant for its own default or otherwise. If the party merrily allows any litigation to proceed and thereafter makes complaint about the ex parte proceeding, it would be required for the Court to examine such grievance by keeping in mind that no undue premium is earned by the party complaining thereof. Therefore, it appears that to consider the bonafide of such party complaining the ex parte judgment and decree, some partial compliance of the judgment and decree at least to the extent of monetary liability should be made which may be ultimately subject to final outcome in the proceedings by way of imposition of payment of 25% of the decreetal amount as accrued till today or otherwise.

I would have considered the whole matter with the consent of the learned advocate appearing for both the sides on the aspect of reconsideration of the main suit itself. However, Mr. Desai, learned Counsel appearing for the Petitioners submitted that she had communicated to her client by speed post, but there is no response. Under the circumstances, the matter is left at that stage without observing further leaving it for the parties to agitate that question at the appropriate stage and leaving the lower court to decide the same in accordance with law.

In view of the aforesaid observations and discussions, the impugned order passed by the lower court below application for condonation of delay is set aside with the direction that the delay shall stand condoned on the condition that the Petitioners pay cost for compensating on the aspects of delay of Rs. 2500/- to the Respondents within four weeks from today. It is observed and clarified that if the amount of cost is not paid, the application for condonation of delay shall stand dismissed.

Petition is allowed to the aforesaid extent. Rule made absolute accordingly.