MOHD. SAHID AND OTHERS versus RAZIYA KHANAM (D) THR. LRS. AND ANOTHER on 10 October 2018

MOHD. SAHID AND OTHERS

v.

RAZIYA KHANAM (D) THR. LRS. AND ANOTHER

(Civil Appeal No.10379 of 2018)

OCTOBER 10, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Suit – Respondent No.1(since dead) filed suit against theappellants inter alia for permanent injunction against them over thesuit land – Appellants did not appear in the suit and it was decreedvideex-parte order dated 10.05.2012 – In appeal, the appellantsfiled application for condonation of delay on the ground that theappellants came to know of the judgment in the suit for the firsttime on 06.05.2013 through a police constable when they went toattend the hearing in another case before the Sub-DivisionalMagistrate – Dismissed – High Court dismissed second appeal –On appeal, held: Statement of the appellants that they got knowledgeabout the judgment of the trial court in the suit for the first time on06.05.2013 is incorrect – Certified copy of the order sheets dated11.10.2011 and 14.10.2011 in the suit show that on 11.10.2011,parties were present in the trial court – Order sheet and othermaterials clearly show that the appellants had full knowledge aboutthe proceedings of the suit – Both the First Appellate Court and theHigh Court recorded concurrent findings that the appellants filedthe application for condonation of delay with incorrect facts andwere negligent in pursuing the matter and rightly refused to condonethe delay – No perversity or infirmity in the impugned orderwarranting interference.

Dismissing the appeal, the Court

HELD: 1.1 The statement of the appellants that they gotknowledge about the judgment of the trial court dated 10.05.2012in the Suit for the first time on 06.05.2013 is incorrect. Certifiedcopy of the order sheet dated 11.10.2011 and 14.10.2011 in thesuit shows that on 11.10.2011, parties were present in the trialcourt. On 11.10.2011, the trial court heard the parties for decidingthe issues No.2 and 3 and the order sheet indicates the presence

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Aof the parties. Thereafter, the case was put up for recording ofevidence by the respondent-plaintiff on 14.10.2011. As per theorder sheet dated 14.10.2011, the case was called out and theparties were present and the case was again adjourned to18.10.2011. On 18.10.2011, the affidavit of the respondent-plaintiffwas filed and thereafter, in spite of several opportunities, theBappellants-defendants did not appear and the suit was decreedex-parte on 10.05.2012. In the said judgment dated 10.05.2012,the trial court has recorded that in spite of opportunities, theappellants-defendants did not appear. The First Appellate Courtas well as the High Court rightly recorded concurrent findingsCthat the appellants had full knowledge about the proceedings ofthe suit. The High Court has rightly observed that the appellantshave not come out with the correct facts. [Paras 15, 16][968-G-H; 969-A-B, F-G]

1.2 On behalf of the respondents, it is stated that in theDproceedings before the Sub-Divisional Magistrate, the appellantsfiled the application on 23.11.2012 (Objection Paper No.23C2)wherein the judgment dated 10.05.2012 of the civil court wasmentioned and it was even averred that the said judgment waspassed wrongly. It is thus clear that the appellants had knowledge about the judgment and decree in the suit even on 23.11.2012.EWhile so, the appellants filed application with incorrect avermentsthat they got knowledge about the judgment and decree only on06.05.2013 when constable of the Police Station gave them theinformation. [Para 17] [970-E-G]

1.3 The order sheet and other materials placed on recordFclearly show that the appellants had full knowledge about theproceedings of the suit and the appellants have filed applicationfor condonation of delay with incorrect facts. Both the FirstAppellate Court and the High Court recorded concurrent findingsthat the appellants have filed the application for condonation ofGdelay with incorrect facts and were negligent in pursuing thematter and rightly refused to condone the delay. There is noperversity or infirmity in the impugned order warrantinginterference. [Para 19] [971-C-E]

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10379of 2018.

From the Judgment and Order dated 15.10.2015 of the High Courtof Judicature at Allahabad in Second Appeal No. 819 of 2015

Yatindra Singh, Sr. Adv., D. V. Singh, M/s. Anuradha & Associates,Advs.for the Appellants.

U.K. Unniyal, Sr. Adv., Mr. Dinesh Kumar Garg, Abhishek Garg,Dhananjay Garg, Deepak Mishra, P.V. Yogeswaran, Advs. for theRespondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1.Leave granted.

2. This appeal arises out of the order dated 15.10.2015 passed bythe High Court of Judicature at Allahabad in Second Appeal No.819 of2015 in and by which the High Court affirmed the order of the FirstAppellate Court dismissing the application filed under Section 5 of theLimitation Act and declining to condone the delay of 349 days in filingthe appeal.

3. Respondent No.1-Raziya (since dead) filed a Civil Suit No.591of 1979 against the appellants No.1 to 3 for cancellation of sale deedsdated 17.02.1979 and 17.05.1979 in favour of the appellants and forrelief of permanent injunction against them over the suit land. RespondentNo.1-Raziya (since dead) contended that appellants No. 1 to 3 forgeddocuments and executed a bainama of the suit property in their favouron 17.02.1979. Some part of the suit property was also sold to appellantNo.4-Mahesh by sale deed dated 17.05.1979. The respondents resisted the suit contending that respondent No.2-Hadisunnissa executed aHibanama in favour of respondent No.1-Raziya Khanam (since dead)on 27.02.1979 of her properties and building situated in the village NadvaKhas and Revri Dihi and other villages on 27.02.1979 in the consolidationoffice.

4. The said Suit No.591 of 1979 was decreed on 16.04.1981 againstappellants No.1 to 3 with the observation that they had been properlyserved and had appeared and sought time for filing written statement;but despite ample time being given, they had not filed written statement.

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A5. In appeal by appellants, the First Appellate Court noted thatappellant No.3-Mohd. Asid was a minor at the time when the originalsuit was filed and the proceeding for appointment of his legal guardianhas not been completed in accordance with law and in suchcircumstances, it could not have been possible to have proper serviceupon appellant No.3-Mohd. Asid. After considering the submissions ofBappellants No.1 to 3, the First Appellate Court vide order dated 29.11.1985allowed the appeal and remitted the matter back to the trial court with adirection to rehear both the parties and decide the case on merits withcosts of Rs.50/- payable by the appellants and filing written statementon or before 03.01.1986.

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6. Respondent No.1-Raziya Khanam (since dead) filed a WritPetition(C) No.19550 of 1985 before the High Court against the orderof the First Appellate Court in which interim order dated 20.02.1985was passed by the High Court. The said writ petition remained pendingfor nearly fifteen years. In the said writ petition, the appellants hereinDwere neither served nor they entered their appearance. The High Courtnoted that the First Appellate Court recorded a finding that the appellantswere not served with notice and rightly set aside the decree dated16.04.1981 and remanded the matter back to the trial court. The saidwrit petition was dismissed on 20.02.2001 and order of interim stay dated20.02.1985 was vacated.

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7. The order sheet of the trial court dated 30.05.2011 indicatesthe order dated 20.02.2001 passed in Writ Petition (C) No.19550 of1985 was produced before the trial court. The fact that the order in thesaid writ petition was placed before the High Court on 30.05.2011 isclear from the order sheet of the trial court dated 04.03.2011 whichFreads that “Proceeding of suit is stayed by Hon’ble Allahabad HighCourt Record may be produced on 30.05.2011 for further orders.”Before the trial in Suit No.591 of 1979 was taken up, substitutionapplications No.113K2, 114G2, 115G2, 116G2 and 117G1 were taken upand orders were passed on various dates.

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8. Though the appellants claimed that they were not present beforethe trial court in Suit No.591 of 1979, the order sheet dated 14.10.2011passed by the trial court in Suit No.591 of 1979 notes the presence ofboth the parties in the trial court on 14.10.2011 when the submissions ofthe parties regarding preliminary issues were considered and subsequent H

date i.e. 18.10.2011 was fixed for cross-examination of PW-1 whichaccording to the respondents, the appellants had knowledge about thesame.

9. Subsequently, the appellants-defendants did not appear in thesuit and the suit was decreed ex-parte on 10.05.2012. The first appellant-Mohd. Sahid preferred Civil Appeal No.131 of 2013 with application forcondonation of delay of 349 days under Section 5 of the Limitation Act.In the said application for condonation of delay, the appellants averredthat they came to know about the judgment of the trial court dated10.05.2012 for the first time on 06.05.2013 when they went to attend thehearing in another case before the Sub-Divisional Magistrate and at thattime, a constable from Police Station Ghosi informed him about the saidjudgment dated 10.05.2012. According to the appellants, after receiptof such information, they contacted their counsel over telephone forinspection of case file and after inspection on 10.05.2013, they appliedfor copy of the same which was received on 18.05.2013 and the appealwas filed on 22.05.2013 which caused delay of 349 days in filing theappeal.

10. The application for condonation of delay was dismissed bythe First Appellate Court vide order dated 05.08.2015 on the ground thatthe appellants had knowledge about the judgment dated 10.05.2012 passedby the trial court in Suit No.591 of 1979 and that the appellants were notvigilant, rather they had been negligent. Pointing out that the appellantsmade incorrect averments in the application and that no sufficient andreasonable cause has been shown by the appellants for the delay, theFirst Appellate Court dismissed the application. In appeal before theHigh Court, the High Court noted that the reasons stated in the applicationfor condonation of delay are self-contradictory. The High Court referredto the order sheet of the trial court dated 14.10.2011 which notes thepresence of both the parties in the trial court on 14.10.2011 and therespondents-plaintiffs evidence in the form of affidavit and that the matterwas fixed on 18.10.2011 for cross-examination of PW-1 which clearlyshows that the appellants had full knowledge about the proceedings inthe Suit No.591 of 1979 and also about the dismissal of the Writ Petition(C) No.19550 of 1985. The High Court dismissed the Second AppealNo.819 of 2015 observing that the order of the First Appellate Courtdoes not suffer from any factual error or illegality and that no substantialquestion of law arises in the Second Appeal.

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A11. We have heard Mr. Yatindra Singh, learned senior counselappearing on behalf of the appellants and Mr. U.K. Unniyal, learnedsenior counsel appearing on behalf of the respondents at length andperused the impugned order and materials placed on record.

12. In the application No.4-C for condonation of delay, the appellantBNo.1-Sahid has stated that he got knowledge about the decree and orderdated 10.05.2012 passed in Suit No.591 of 1979 when the applicant hadgone in pairvi on 06.05.2013 before the Sub-Divisional Magistrate and aconstable of the Police Station, Tehsil Ghosi gave information about theorder. The appellant further averred that on 06.05.2013, he had left toLucknow from Ghosi and on 09.05.2013 he contacted his counsel andCthereafter applied for certified copy which was received on 18.05.2013and the appeal was filed on 22.05.2013 which caused the delay of 349days in filing the appeal.

13. After referring to the averments in the application 4-C, theHigh Court noted that the appellant-defendant was in Lucknow fromD03.05.2013 to 09.05.2013 and therefore, it was quite improbable that theconstable of the Police Station, Ghosi, District Mau could have informedthe appellant about the judgment of the trial court in Tehsil Ghosi on06.05.2013 and the said contradictory averment was not explained bythe appellants during arguments.

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14. In his application 4-C filed under Section 5 of the LimitationAct, the appellant has not stated that he was in Lucknow from 03.05.2013to 09.05.2013. Hence, the observation of the High Court in para (6)does not reflect the averments in the affidavit of appellant Sahid. It wasin this context, notice was issued by this Court vide order datedF11.04.2016 on the ground that “the factual position depicted in paragraphs(6) and (7) of the impugned order is false and incorrect.” The observationof the High Court that the appellant-defendant was in Lucknow from03.05.2013 to 09.05.2013 though may not reflect the averments in theapplication for condonation of delay, in our view, does not affect thecorrectness of the impugned order.G

15. The statement of the appellants that they got knowledge aboutthe judgment of the trial court in Suit No.591 of 1979 dated 10.05.2012for the first time on 06.05.2013 is incorrect. As pointed out by the FirstAppellate court as well as by the High Court, certified copy of the order H

sheet dated 11.10.2011 and 14.10.2011 in Suit No.591 of 1979 showsthat on 11.10.2011, parties were present in the trial court and the attentionof the court was drawn by the respondents-plaintiffs regarding the orderpassed in Writ Petition(C) No.19550 of 1985 (20.02.2001). On 11.10.2011,the trial court heard the parties for deciding the issues No.2 and 3 andthe order sheet indicates the presence of the parties as seen from thefollowing:- “Order dated 11.10.2011

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Disposal of Issue Nos.2 and 3

Today the parties made the prayer for deciding the issues No.2and 3 after hearing the same. On the prayer of the parties, bothparties are heard on the issues No.2 and 3 with respect to valuationand court fee paid and the record is perused.

In this case the issue No.2 was framed – “Whether valuation ofthis suit is shown lesser?” and the issue No.3 was framed –“Whether the court fee paid by plaintiff is deficient?”

No such fact was put up by the parties so that it could appear thatvaluation of the suit was not fixed correctly and the court fee paidwas deficient. So in view of the aforesaid facts and circumstancesthe issues No.2 and 3 are decided in negative. The record be putup for recording of the evidence by the plaintiff on 14.10.2011.”

Thereafter, the case was put up for recording of evidence by therespondent-plaintiff on 14.10.2011. As per the order sheet dated14.10.2011, the case was called out and the parties were present andthe case was again adjourned to 18.10.2011. On 18.10.2011, the affidavitof the respondent-plaintiff was filed and thereafter, in spite of severalopportunities, the appellants-defendants did not appear and the suit wasdecreed ex-parte on 10.05.2012. In the said judgment dated 10.05.2012,the trial court has recorded that in spite of opportunities, the appellants-defendants did not appear as seen from the following:- “In the present case, the defendants have filed their objection at17 A1 but they had remained absent at the time of adducingevidence. Therefore, on 09.11.2011, their opportunity of adducing A

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Aevidence was closed and they were declared ex-parte and ex-parte proceeding continued.

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In support of their pleadings, the plaintiffs had examined PW-1Seraj Ahmmed, PW-2 Firoz Alam and PW-3 Salauddin asBwitnesses. The evidences on affidavit of these witnesses havebeen placed on records as the Document No.120A2, 128A2 and129A2. The defendants did not remain present for the cross-examination of the aforementioned witnesses………”

16. After referring to the order sheets dated 11.10.2011 andC18.10.2011 and the subsequent hearings in the Suit No.591 of 1979, theFirst Appellate Court as well as the High Court rightly recordedconcurrent findings that the appellants had full knowledge about theproceedings of the original Suit No.591 of 1979 and also about thevacation of stay order passed in Writ Petition(C) No.19550 of 1985.DThe High Court has rightly observed that the appellants-defendants havenot come out with the correct facts.

17. The averments in the application that the appellants gotknowledge about the judgment in Suit No.591 of 1979 dated 10.05.2012only on 06.05.2013 through a constable is incorrect. On behalf of theErespondents, it is stated that in the proceedings before the Sub-DivisionalMagistrate, the appellants filed the application on 23.11.2012 (ObjectionPaper No.23C2) wherein the judgment dated 10.05.2012 of the civilcourt was mentioned and it was even averred that the said judgmentwas passed wrongly. It is thus clear that the appellants had knowledgeabout the judgment and decree in Suit No.591 of 1979 even onF23.11.2012. While so, the appellants-defendants have filed applicationwith incorrect averments that they got knowledge about the judgmentand decree only on 06.05.2013 at Tehsil Ghosi when constable of thePolice Station gave them the information. The High Court rightly rejectedthe contention of the appellants that they came to know about theGjudgment dated 10.05.2012 in Suit No.591 of 1979 only on 06.05.2013through a constable of the Police Station in Tehsil Ghosi, District Mauwhen he had gone there to Pairvi in another case.

18. It is also pertinent to note that in Suit No.591 of the year 1979,the appellants have not filed the written statement in spite of ample H

opportunities given and earlier the suit was decreed ex-parte againstthem on 16.04.1981. The appellants filed appeal in CA No.395 of 1981and it was dismissed for default and the same was restored on 14.11.1983.By order dated 29.11.1985, CA No.395 of 1981 was allowed and theex-parte decree dated 16.04.1981 was set aside and the matter wasremanded back for decision on merits afresh with condition of depositingcost of Rs.50/-. Of course, Writ Petition(C) No.19550 of 1985 was filedchallenging the same; the suit being of the year 1979 and earlier beingset ex-parte and the matter having been remitted at the instance of theappellants, the appellants ought to have been vigilant in pursuing thematter.

19. The order sheet and other materials placed on record clearlyshow that the appellants had full knowledge about the proceedings ofthe Original Suit No.591 of 1979 and also about the disposal of the WritPetition(C) No.19550 of 1985 and the appellants have filed applicationfor condonation of delay with incorrect facts. Both the First AppellateCourt and the High Court recorded concurrent findings that the appellantshave filed the application for condonation of delay with incorrect factsand were negligent in pursuing the matter and rightly refused to condonethe delay. We do not find any perversity or infirmity in the impugnedorder warranting interference and the appeal is liable to be dismissed.

20. In the result, the appeal is dismissed. No costs.

Divya Pandey

Appeal dismissed.

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