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Judgment
Sharad Kumar Sharma, J.
A suit was instituted on 17th April 2005, by the plaintiff (petitioner herein) seeking a decree of permanent/mandatory injunction in relation to the property, which has been more particularly detailed at the foot of the plaint. The relief clause as well as the property details as described in the plaint are quoted here under:-
"अतः श्रीमान जी से प्रार्थना है कि वादिनी के पक्ष में एवं प्रतिवादिनी के विरूद्व निम्न प्रतिकारों को आज्ञप्ति प्रदान की जावेः-
(क) यह कि प्रतिवादिनी, उनके साथियों, एजेन्टों, हितप्रतिनिधियों आदि-आदि को स्थाई निषेधाज्ञा आदेश द्वारा निषिद्व किया जावे िकवह वादिनी को वादपत्र की सूची क में वर्णित सम्पत्ति से बेदखल कर उस पर अवैधानिक रूप से कब्जा न करें और ना ही इसका कारण बने।
(ख) यह कि प्रतिवादिनी को आज्ञात्मक व्यादेश द्वारा आदेशित किया जावे कि उनके द्वारा वादपत्र की सूची "ख" में वर्णित सम्पत्ति पर अवैधानिक रूप से कब्जा करके गैर कानूनी ढंग से किये गये निर्माण को ध्वस्त कर उसके रिक्त एवं वास्तिवक अध्यासन वादिनी को सौंप दें।
विकल्प में
यदि प्रतिवादिनी माननीय न्यायालय के आदेश के बावजूद वादपत्र की सूची "ख" में वर्णित सम्पत्ति को ध्वस्त करके उसके रिक्त एवं वास्तविक अध्यासन वादिनी को नहीं सौपती है तो सिविल कोर्ट अमीन के माध्यम से निर्माण को ध्वस्त कराकर सम्पत्ति का कब्जा सिविल कोर्ट अमीन प्रतिवादिनी के खर्चे पर वादिनी को सौंपे।
(ग) यह कि अन्य कोई प्रतिकार उपरोक्त की एवल में वादिनी को मिलना सम्भव हो, वह भी प्रतिवादी से दिलाया जावे।
(घ) यह कि समस्त वाद व्यय वादिनी को प्रतिवादी से दिलाया जावे।
सूची सम्पत्ति "क"
भूमि खसरा नम्बर 193-ड (पुराना नम्बर 28) क्षेत्रफल 23 गुणा 34 फुट, स्थित ग्राम ननूरखेड़ा, परगना परवादून, जिला देहरादून, जिसमें एक कमरा, एक रसोई व दो कमरों की बुनियाद भरी हुई है, जिसको संलग्न मानचित्र में लाल रंग की रेखाओं से घेर कर दर्शाया गया है एवं जिसकी सीमाएं व नाप निम्न प्रकार हैं:-
पूरब में - 10 फुट चैड़ा रास्ता, सीमा में नाप 23 फुट।
पश्चिम में - सम्पत्ति श्री दिनेश ढाका, सीमा में नाप 23 फुट।
उत्तर में - 30 फुट चैड़ी सड़क, सीमा में नाप 34 फुट।
दक्षिण में - वादिनी की सम्पत्ति, जिस पर प्रतिवादी ने गैर कानूनी रूप से कब्जा किया हुआ है, जिसकी विवरण सूची "ख" में दिया गया है, सीमा में नाप 34 फुट।"
In the suit in question, when the notices were issued, the defendant/respondent had put in appearance and filed his written statement on 12th July 2005. As far as putting in appearance for the purposes of contest to the suit is concerned, as soon as the plaintiff/respondent puts in appearance and contest the proceedings by filing the written statement, the knowledge would be deemed to be attributed there with the defendant/respondent with regards to the suit in question. Ultimately, the suit being Suit No. 131 of 2005, Smt. Sashi Jain v. Smt. Lokesh Chaudhary preceded and it was decided ex parte by virtue of the judgement dated 25th October 2010, as a result thereto the suit of the plaintiff was decreed with the following directions:
"आदेश
वादिनी का वाद प्रतिवादी के विरूद्व आज्ञप्त किया जाता है। प्रतिवादिनी, उनके साथयों, एजेन्टों हित प्रतिनिधियों आदि को स्थाई निषेधाज्ञा द्वारा निषेद्व किया जाता है कि वह वादिनी को वाद पत्र की सूची "क" में वर्णित सम्पत्ति से बेदलखल न करे और ना ही उस पर अवैधानिक रूप से कब्जा करें तथा न ही इसका कारण बने तथा प्रतिवादिनी को यह भी आदेशित किया जाता है कि वह वाद पत्र की सूची "ख" में वर्णित सम्पत्ति पर अवैधानिक रूप से कब्जा ना करे तथा सूची "ख" में वर्णित सम्पत्ति पर गैर कानूनी ढंग से किये गये निर्माण कार्य को ध्वस्त करके उसका रिक्त अध्यासन वादिनी को 30 दिन के अंदर सौंपे अन्यथा वादिनी को यह अधिकार होगा कि वह सिविल कोर्ट अमीन के माध्यम से प्रतिवादी के खर्चे पर प्रश्नगत सम्पत्ति पर हुए निर्माण को ध्वस्त करके सूची ख में वर्णित सम्पत्ति का कब्जा प्राप्त करें।"
In order to get the decree executed, the plaintiff/petitioner contends that she has already filed an execution proceedings and according to the defendant/respondent, she has contended that she could get the knowledge about the ex parte decree dated 25th October 2010, when she had received the notices in Execution Proceedings only in July 2011, being Execution Case No. 2 of 2011 for execution of decree dated 25.10.2010.
She has further taken a ground that when the suit was itself pending consideration before the learned trial Court, it was transferred to another Court of competent jurisdiction but she was not given notice as contemplated under Rule 89A(4) of General Rule Civil. Rule 89A of General Rule Civil is quoted hereunder:-
"89A. Procedure to be followed on transfer or withdrawal of cases.
(1) When a case, i.e., a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular Court has been fixed, is transferred from the Court to another, the former Court shall record the order of transfer in the order sheet and get it signed by counsel of the party or parties, if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other Court on the date already fixed by the transferring Court and the presence of the parties noted.
(2) A note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring Court.
(3) Where cases are transferred in a large number the Court from which they are transferred shall, besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be posted on the notice board of the local bar association for information of the members of the bar and another copy to be posted on the notice board of the Court for information of the general public. It shall also send to the other Court along with the records of the transferred cases, a copy of the list (or relevant extract of it); the other Court shall post it on its own notice board. If the other Court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being posted on the notice board of the bar association.
(4) The Court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer.
(5) In sub-rules (1) to (4) 'transfer' includes withdrawal of a case."
Consequently, the defendant/respondent had filed an application under Order 9 Rule 13 CPC on 20th July 2011, praying for setting aside the ex parte decree, which was numbered as paper number 3A1 before the Court below.
The application for seeking condonation of delay in support of the application under Order 9 Rule 13 was filed thereafter by the defendant/respondent on 27th July 2011, which was numbered as paper number 10CA. The application for setting aside the ex parte decree was contested by the plaintiff/respondent by filing an objection to it wherein according to the argument which has been extended by the learned counsel for the plaintiff/petitioner is to the effect that as far as the argument pertaining to the knowledge of the execution proceedings is concerned, her contention is that the knowledge was received by the defendant in July 2011, which is untenable and not acceptable by this Court for the reason that the knowledge with regard to the pendency of the execution proceedings as per the evidence which is available on record was imparted to the defendant/respondent on 8th June 2011.
There is another limb of argument, which has been extended by the learned counsel for the defendant/respondent was to the effect that the knowledge as pleaded in Miscellaneous Case No.13 of 2011, on which the reliance has been placed in the Application under Order 9 Rule 13, cannot be treated as to be a knowledge for the purposes of filing of an application under Order 9 Rule 13 for the reason being that Order 9 Rule 13 it is only contemplated in those situations where the applicant to application in view of language used under the provisions contained under Order 9 Rule 13, was not served with the notices of the proceedings and then the matter has been decided ex parte. Order 9 Rule 13 reads as under:-
"13. Setting aside decree ex parte against defendants
In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
But in the instant case, it is argued by the learned counsel for the plaintiff/respondent that since the defendant was noticed and she had filed her written statement on 12.07.2005, which was numbered as paper No. 20A/1 and was contesting the matter on merits on various dates and thereafter if the suit is proceeded ex parte and decided by the learned trial Court by the judgement sought to be set aside by invoking Order 9 Rule 13, the same would not be available to the defendant/respondent.
In response to the argument as extended by the learned counsel for the plaintiff/petitioner, the defendant/respondent has contended that the notice after the transfer of proceedings from one Court of competent jurisdiction to another Court was bound to be issued to the parties to the proceedings in view of the provisions contained under para 89A of the General Rule Civil, which in the instant case was not adhered to and as such the defendant/respondent could not gathered the knowledge about the transfer of the case to the Court of 2nd Additional Civil Judge (Junior Division). Hence, it for this reason he was rendered incapacitated to participate in the proceedings before the Court below.
The application under Order 9 Rule 13 came up for consideration before the learned trial Court and the learned trial Court after considering the rival contentions with regards to the propriety of the application under Order 9 Rule 13, which was filed prior to filing of the application under Section 5 which was preferred on 27th July 2011, had considered the order sheet, as well as the pleadings raised in the application for seeking condonation of delay had proceeded to dismiss the application under Section 5 and while rejecting the application under Section 5, the trial Court has recorded finding it to be contrary to the entries and orders which has been recorded in the order sheet and had rather declined to extend the benefit of limitation and rejected the delay condonation application paper No. 10C/2 as a consequence thereto, the application under Order 9 Rule 13 i.e. paper number 3A/1 was also rejected by the learned trial Court vide its order dated 7th December 2013. In order to clarify the consequence which would flow from the order dated 7th December 2013, it is argued by the learned counsel for the plaintiff that since it was a dismissal of an application under Section 5 cannot be accepted legally because the logical conclusion which would flow from the rejection of the delay condonation application would be that the application under Order 9 Rule 13 is bound to be rejected as a consequence thereto subsequent to the rejection of the delay condonation application.
The learned counsel for the plaintiff/petitioner further submits that since the averments which were made in the delay condonation application itself were not tenable and as it was not being substantiated by a reasonable grounds pertaining to the knowledge of the proceedings, the delay condonation application has rightly been rejected by the learned trial Court. Being aggrieved against the order dated 7th December 2013, the defendant/respondent had preferred a Miscellaneous Appeal, under Order 43 Rule 1(d) which was registered as Miscellaneous Appeal No. 7 of 2014, Smt.Lokesh Chaudhary v. Smt. Shashi Jain.
The learned appellate Court in its finding which has been recorded in relation to the impact of the provisions contained under Para 89A of the General Rule Civil and considering the fact pertaining to the argument which has been extended pertaining to the endorsements, which has been made by the parties to the proceedings had proceeded to allow the Application under Order 9 Rule 13 itself logic which would flow as a consequence thereto that the application of delay condonation would be treated to be allowed. The judgement dated 23rd May 2015, allowing the Civil Appeal No. 7 of 2014, Smt. Lokesh Chaudhary v. Smt. Shashi Jain has been questioned by the plaintiff/petitioner herein) on the ground that when the appeal was preferred as against the impugned order dated 7th December 2013, the learned Appellate Court ought to have been conscious that it was in fact principally the order of rejection of Section 5 Application which was the subject matter of judicial review before the Appellate Court in the exercise of its power under Order 43 Rule 1(d) and not the application under Order 9 Rule 13 of Code of Civil Procedure.
The learned counsel for the plaintiff/petitioner had argued that the learned Appellate Court, when it was ceased with the order rejecting the delay condonation application, in that eventuality, the learned appellate Court ought to have confined its finding only with regard to the findings which related to consideration of the delay condonation application and the learned appellate Court could not have exceeded its jurisdiction by deciding the application under Order 9 Rule 13 itself when the order of rejection of the delay condonation application was under consideration before it. Even if we go through the findings which has been recorded by the learned appellate Court, the appellate Court in view of the findings which was recorded by it, it was more or less more influenced because of the age of the litigation, which was initiated by the plaintiff/petitioner on 10th November 2008, but the fact pertaining to the transfer of the proceedings by an order dated 24th January 2009 and its procedural effect, from the Court of Civil Judge (Junior Division), Dehradun to the Court of ACJ 2nd Dehradun, the Appellate Court has contended that thereafter several dates were fixed but despite of the finding which has been recorded in the various orders in the order sheet after the transfer of the proceedings, it rather shows that in fact no notice was sent to the defendant with regards to the transfer of the matter from one court of competent jurisdiction to other and in connection thereto, the argument of the learned counsel for the defendant/respondent is to the effect that even after the order of transfer dated 24th January 2009, whatsoever endorsements which are found in the order sheet, they have been fraudulently incorporated before the learned trial Court just in order to show that the defendant/respondent had the knowledge of the proceedings and she had deliberately avoided to participate in the proceedings. Considering those fraudulent signatures as well as the effect of non service of the notice under Para 89A of the General Rule Civil, the learned appellate Court had proceeded to allow the Appeal of the defendant/respondent and had simultaneously has proceeded to allow the Miscellaneous Case No. 13 of 2011, Smt. Lokesh Chaudhary v. Smt. Shashi Jain. Thereby consequently Order 9 Rule 13 application of the defendant/respondent was allowed, and suit was to be heard a fresh as its effect would be that ex parte decree dated 25.10.2010 was set aside.
The grievance of the plaintiff/petitioner is that even, for a moment, if it is presumed that the order of rejection under Order 9 Rule 13 could at all to be held to be invalid, in that eventuality, when the appellate Court was considering the propriety of the order dated 7th December 2013, against rejection of delay condonation application, it ought to have confined itself to the findings recorded pertaining to the rejection of the delay condonation application only because the consequential effect of rejection of the delay condonation applications would be that Order 9 Rule 13 application would automatically stand rejected. This Court being conscious of the fact that by the order dated 7th December 2013, if it is scrutinized, it precisely has dealt with the reasoning which has been contained in the delay condonation application only and the finding pertaining to the application and the reasoning under Order 9 Rule 13 could have only been considered when the delay condonation application was allowed, which was the preconditions for the purposes of considering an application under Order 9 Rule 13 on its own merits. But, this Court cannot be oblivious of the fact also that when the consequential effect of rejection of the delay condonation application is that of the rejection of the application under Order 9 Rule 13, the appellate Court should have confined its findings pertaining to the propriety of the order dated 7th December 2013, so far it related to the rejection of the delay condonation applications and the appellate Court ought not to have exceed beyond the findings of the impugned order before it in recording of its findings pertaining to rejection of Order 9 Rule 13 application, which was not the subject matter of consideration but was rather a consequential action which flowed on account of the rejection of the delay condonation application.
Hence, the Writ Petition is allowed only to the extent so far it is related to allowing of an application under Order 9 Rule 13, the said part of the order of the appellate Court is quashed, but as far as the order pertaining to the rejection of delay condonation application, which has been allowed by the learned appellate Court that is sustained and the delay would stand condoned and the matter is remitted back to the learned trial Court to consider the application under Order 9 Rule 13 independently on its own merits by treating the delay condonation application to have been allowed by the order of the appellate Court dated 23rd May 2015. The learned trial Court will decide the application under Order 9 Rule 13 on its own merits, depending upon the manner in which the parties have taken themselves to the proceedings before the trial Court.
Subject to the above observations, the writ petition partly succeeds.
However, there would be no order as to cost.