Sarjo Devi @ Saroj v. Dharampal (Deceased) Through LRs & Ors.

1. The petitioner vide the present petition seeks the setting aside of the orders dated 23.1.2017 and 4.1.2018 of the learned Trial Court whereby vide order dated 23.1.2017 in CS No. 579090/16 Old CS NO. 276/16, an application under Order IX Rule 7 of the Code of Civil Procedure, 1908 filed on behalf of the defendants No. 2,[3] and 4 was allowed subject to costs of Rs.10,000/- and one opportunity was granted to the defendants No. 2, 3 and 4 before the learned Trial Court 2020:DHC:2324 for filing their written statement and vide order dated 4.1.2018 the learned Additional District Judge -04 (North-West), Rohini Courts, Delhi dismissed the application filed on behalf of the plaintiff of that suit, i.e., the petitioner herein, under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 seeking review of the order dated 23.1.2017 with it having been observed by the learned Trial Court that there was no error apparent on the face of the record in the order dated 23.1.2017, and costs of Rs.10,000/- imposed vide the order dated 23.01.2017 were directed to be paid by the defendant nos.2, 3 & 4 to the plaintiff.

2. The notice of the petition was issued vide order dated 19.2.2018 to the respondents with observations therein to the effect: "The petitioner is the plaintiff of the civil suit initially filed on the original side of this Court in May,2010.The suit was transferred on account of pecuniary jurisdiction to the district courts and is now pending on the file of Additional District -04, North-West at Rohini Courts Complex. The second to fourth respondents, they being second to fourth defendants in the suit had been set ex-parte on 10.10.2011 but they appear to have resurfaced before the trial Court in April, 2016 seeking the exparte proceedings to be set aside by moving an application under Order 9 Rule 7 CPC. The grievance of the petitioner is that said application was allowed without any just or sufficient reasons being shown for earlier default and without any application even moved for explaining the delay. Issue notice. Mr. Mukesh Solanki, one of the legal heirs of deceased first respondent (first defendant) is present on advance copy and accepts notice. Steps shall be taken for service of other respondents, returnable for 8th August, 2018. Additionally, notice may also issue and be served on the counsel for second to fourth respondents, if so required, by it being tendered before the trial court. Meanwhile, the proceedings before the trial court are stayed. Dasti under the signatures of Court Master, as prayed." and vide the said order dated 19.2.2018, the proceedings before the learned Trial Court were stayed.

3. The respondents No.2, 3 and 4, i.e., the defendants to the CS No. 579090/16 old No. CS276/16, put in appearance through their learned counsel and submissions were made on behalf of either side.

4. The brief facts in the instant case as set forth through the list of dates by the petitioner are to the effect: DATES DESCRIPTION AND EVENTS 03/05/2010 Petitioner filed a Suit for Partition and Injunction in this Hon'ble High Court as CS(OS)835/2010 and Summons of the Suit and Notice of the application were issued to all respondents/defendants. 22/07/2010 Fresh Notice issued to respondents / defendants 2 to 4. Counsel for respondents / defendants 1&5 attended the proceedings in this Hon'ble Court in CS(OS)835/2010. 20/08/2010 Fresh Summons were issued for respondents/defendants 6 to 12. Counsel for respondent/defendant 2 to 4 attended the proceedings of CS(OS)835/2010 in this Hon'ble Court. 18/03/2011 Counsel of respondents/defendants 2 to 4 attended the proceedings of the CS(OS)835/2010 in this Hon'ble Court. 09/04/2011 Respondents/defendants 6 to 12 were also served. 01/08/2011 WS not filed by respondents / defendants[2] to[4] and 6 to 12. Pleadings completed in the Suit CS(OS)835/2010. 10/10/2011 Respondents / defendants[2] to 4 & 6 to 12 were declared ex-parte by this Hon'ble Court in CS(OS)835/2010. 20/12/2011 Ex-Parte evidence of Petitioner (Plaintiff) concluded and ex-parte evidence of Petitioner(Plaintiff)closed in CS(OS)835/10. 23/08/2012 Notice issued to respondents / defendants 1& 5 and LRs' of deceased defendant 1, who expired on 03/06/2012, under Order 22 Rule 4 CPC. 29/05/2013 LRs' of defendant 1 substituted by this Hon'ble Court in CS(OS)835/2010. 09/07/2014 Counsel of respondent / defendant 2 attended the proceedings and matter was directed to be listed for final disposal. 17/11/2014 Counsel of respondent / defendant 2 attended the proceedings and matter was again directed to be listed for final disposal. 26/02/2015 Counsel for respondents / defendants 2 to 4 attended the proceedings and admitted the fact that no step has been taken by them to set aside the ex-parte order dated 10/10/2011. 12/08/2015 Counsel for respondents (defendants) 2 to 4 attended the proceedings but still no steps were taken to set aside the ex-parte order dated 10/10/2011 in CS(OS)835/2010. 17/12/2015 Suit transferred to District Courts in presence of husband of defendant 2 due to enhancement of pecuniary jurisdiction of District Courts. 29/01/2016 Distt. & Sessions Judge (N/W District) allotted the case to ADJ (N/W Distt.) & Suit is numbered as CS DJ 579090/2016. 04/04/2016 Respondents / defendants 2 to 4 filed an application under order 9 rule 7 CPC to set aside the ex-parte order dated 10/10/2011 with a delay of1639 days. 23/01/2017 Application under Order 9 rule 7 CPC allowed by Ld. Trial Court and ex-parte order dated 10/10/2011 was set aside. Defendants[2] to[4] were instructed to file their WS on record. 22/02/2017 Plaintiff (Petitioner) filed an application under Order 47 Rule 1 & Sec. 114 r/w Sec. 151 CPC to review the impugned order dated 23/01/2017 in CS DJ 579090/2016. 04/01/2018 Ld. Trial Court dismissed the application dated 22/02/2017 for review of order dated 23/01/2017 in CS DJ 579090/2016. 19/02/2018 Petitioner herein invokes the jurisdiction of this Hon'ble Court under Art. 227 of Constitution of India r/w Sec. 151 CPC for setting aside the impugned orders dated 23/01/2017 & 04/01/2018 of Ld. Trial Court in CS DJ 579090/2016.

5. The petitioner has thus submitted that the respondents herein i.e., the defendants No.2, 3 and 4 through their application under Order IX Rule 7 CPC after a delay of 1639 days sought the setting aside of the ex parte proceedings initiated against them vide order dated 10.10.2011 and that thus the learned Trial Court was bound to dismiss or reject the said application especially when it was not accompanied with the explanation for not submitting the application for the condonation of delay in terms of Section 5 of the Limitation Act, 1963. It has further been submitted on behalf of the petitioner herein, now plaintiff before the learned Trial Court after its transfer from this Court to the Trial Court of the District Court on enhancement of the pecuniary jurisdiction of the District Courts, contending to the effect that the Court could not have used its inherent powers under Section 151 CPC in favour of the respondents No.2, 3 and 4 herein, i.e., the defendants No.2, 3 and 4 therein in as much as the defendants are liable for delay and latches. Inter alia, it has been submitted on behalf of the petitioner that the order does not give any good reasons and does not advert to the rulings as relied upon by the petitioner in her oral and written arguments, and that the learned Trial Court was not justified in allowing the defendant nos.2, 3 & 4 to file their written statement after 6 years 7 months and 23 days, i.e., 2427 days by ignoring the mandate of filing of the written statement in the outer limit of 90 days as per Order VIII Rule I CPC and also the verdicts of the Hon'ble Supreme Court and the verdicts of the High Courts of this country. Inter alia, the petitioner has submitted that the learned Trial Court cannot turn back the clock to 8 years back by allowing the written statement to be filed by the defendants No. 2, 3 and 4 and reopening the evidence of the petitioner without considering the injustice meted out to the petitioner herein, i.e., the plaintiff to the suit, due to the delaying tactics adopted by the defendants.

6. The petitioner has placed on record the copies of the proceeding sheets dated 22.7.2010, 20.8.2010, 20.12.2010, 18.3.2011, 1.8.2011, 10.10.2011, 20.12.2011 and orders of this Court dated 9.7.2014, 17.11.2014, 26.2.2015, 12.8.2015, 17.12.2015 in CS(OS) NO. 835/2010 pending before this Court before it having been directed to be transferred to the jurisdiction of the District Judge,(North-West), Rohini Courts, New Delhi. The suit was transferred to the District Judge, North-West, Rohini Courts on 17.12.2015.

7. On behalf of the petitioner, reliance has also been sought to be placed on the verdict of the Hon'ble High Court of Andhra Pradesh in B.F. Pushpaleela Devi v. State of Andhra Pradesh & Ors.; 2002(5) ALT 103, the verdict of this Court in Rajesh Kumar @ Raju V. State and Ors.: CM(M) 1031/2008 and the verdict of this Court in Vikas Dedeech V. Richlook Garments (P) Ltd.; C.R.P. 33/2013 and CM NO. 2741/2013 and the verdict of the Hon'ble High Court of Judicature at Madras titled Visalakshi V. Umapathy & Ors.; C.R.P. PD NO. 4082/2013 and M.P.No. 1/2013 a verdict dated 19.12.2014 in support of the contentions made by the petitioner contending to the effect that the application under Section XLVII Rule 1 of the CPC filed by the petitioner was erroneously disallowed and likewise the application under Order IX Rule 7 of the CPC of the defendant nos.2, 3 & 4 to the suit was allowed by the learned Trial Court and submitting further to the effect that the aspect of the gross delay in filing the application under Order IX Rule 7 CPC was condoned by overlooking the provisions of Order IX Rule 7 CPC as well as the provisions of Article 137 of the Schedule to the Limitation Act, 1963.

8. It is also submitted on behalf of the petitioner that in terms of Order IX Rule 7 of the CPC, the defendants No. 2,[3] and 4 were required to file their applications to explain their non appearance on 10.10.2011 at or before the next date of hearing in the suit which was 20.12.2011. It was also submitted by the petitioner that the learned trial Court had failed to appreciate that the defendants No. 2, 3 and 4 put in appearance before the learned Trial Court through their counsel on 20.08.2010 and 08.03.2011 but still did not file their written statement and no extension of time was sought by them to file the written statement.

9. It has inter alia been submitted on behalf of the respondents No.2, 3 and 4 as indicated vide their response to the application under Order XLVII Rule 1 CPC that had been filed by the petitioner i.e., the plaintiff therein before the learned Trial Court to the effect that the contention regarding delay of 1639 days had not been taken by the petitioner during the course of submissions made on the application under Order IX Rule 7 CPC filed by the defendants No.2, 3 and 4 and that the same could not be allowed now. Inter alia, the defendants No.2, 3 and 4, i.e., the respondents No. 2,[3] and 4 to the present petition submit that there was a fatal error regarding non-compliance of Order XXXII as no guardian was appointed for one minor defendant and further more the contentions that were made by the plaintiff in the said suit for Partition and Injunction to receive her share in the suit property, premised on the aspect that the suit property is ancestral in nature were erroneous in as much as the suit property was not ancestral.

10. It is essential to observe that vide the impugned order dated 23.1.2017 the Additional District Judge-4 (NW) Rohini Courts observed to the effect: " Vakalatnama filed on behalf of defendant no.11. The counsel for defendant no.11 seeks sometime to file reply of the application alongwith power of attorney in favour of the mother of defendant no.11. It is further submitted on behalf of defendant no.11 that copy of plaint and documents be supplied to him. At request, copy of plaint and documents be supplied within a week from today. Arguments on application u/O. 9 Rule 7 CPC heard at length. It is stated on behalf of the plaintiff that matter is at the stage of final arguments. Evidence has already been led and defendant nos. 2, 3 & 4 after putting their appearance, did not appear and have been proceeded ex- parte and now, by moving this application, they are interested in delaying the matter. It is stated on behalf of defendant nos. 2, 3 & 4 on the other hand that after the service upon them, the matter was given to one counsel who however, did not appear before the Hon'ble High Court of Delhi due to which, they were proceeded ex-parte. Nothing is stated besides these submissions. Perusal of the record reflects that service upon defendant nos. 2, 3 & 4 was concluded in the year 2010 itself and they were proceeded ex-parte on 10.10.2011. Looking into the nature of the case, in the interest of justice, 1 deem it appropriate that defendant nos. 2, 3 & 4 should be given one opportunity, therefore, in the interest of justice, the application filed on behalf of defendant nos. 2, 3 & 4 is allowed however, subject to cost of Rs. 10,000/-. One opportunity is granted to defendant nos. 2, 3 & 4 for filing their W/S, if any, within a week from today, failing which, it shall not been taken on record. Advance copy be supplied to the plaintiff within three weeks from the NDOH. Put up for payment of cost and further proceedings on17.05.2017.", and vide order dated 4.1.2018, the other impugned order, it was observed by the learned AdJ-04 (NW) Rohini Courts, to the effect: " It is submitted on behalf of defendant no. 11 that main counsel is not available as wife of main counsel for defendant no. 11 has expired yesterday. Be awaited. 04/01/2018 Present: None It is 3.12 now 1 have already heard arguments on the application under Order 47 Rule 1 CPC which was filed on behalf of plaintiff on 22/02/2017 and perused the record. The said application is with prayer to review the order dated 23/01/2017. Order 23/01/2017 also perused. Vide said order my Ld. Predecessor has allowed the application under Order 9 Rule 7 CPC after imposing cost of Rs 10,000/-. In the review application under consideration it is mentioned that the application under Order 9 Rule 7 CPC was filed without any application to condone the delay under Sec. 5 of Limitation Act. This is a suit for partition and injunction. Application under Order 9 Rule 7 CPC was moved by defendants 2, 3 and 4. The order dated 23/01/2017 reflects that my Ld. Predecessor has also considered the delay in moving the application under Order 9 Rule 7 CPC since the said order reflects that the defendants were proceeded with ex-parte on 10/10/2011. The present case was earlier pending before the Hon'ble High Court of Delhi and has been received by transfer to the District Courts on 29/01/2016 due to enhancement in pecuniary jurisdiction of District Court. In view of overall facts and circumstances and material on record, I see no merits in the application under consideration as there is no error apparent on the face of the record. Hence review application under consideration is hereby dismissed. Previous cost of Rs. 10,000/- be paid by the defendants 2, 3 and 4 to the plaintiff by the next date if not paid so far. Put up on 01/03/2018. Also for consideration of the other pending application, if any, PF/RC not filed for today. Last order be complied with. No early date is available due to heavy pendency."

11. A bare perusal of the said order dated 23.1.2017 indicates that the defendants No.2, 3 and 4, i.e., the respondents No. 2, 3 and 4 herein were proceeded ex parte on 10.10.2011, it has been categorically observed by the learned Trial Court vide order dated 23.1.2017 that it was stated on behalf of the defendants No.2 3 and 4 that after service upon them the matter was referred to one counsel who however did not appear before the High Court of Delhi due to which they were proceeded ex parte and nothing was stated besides this submission. It is apparent that no good cause in terms of the Order IX Rule 7 of the CPC was brought forth for the reasons for not having chosen to not put in appearance after having been proceeded ex parte and no good cause was put forth by the defendants for the latches in not seeking the setting aside of the earlier proceedings despite putting in appearance on behalf of the respondents No. 2, 3 and 4, i.e., the defendants No.2, 3 and 4, after they were proceeded ex parte on 10.10.2011 despite the presence of the counsel for the respondents on 26.02.2014, 9.7.2014, 12.08.2014 and 17.11.2014, as also despite presence of the husband of the respondent No.2 on 17.12.2015 and also during the course of the proceedings pending before this Court. That the respondents No. 2 to 4 were aware of the ex parte proceedings on the dates 17.11.2014, 26.2.2015, 12.8.2015, 17.12.2015 cannot be overlooked and thereafter the respondents No.2,[3] and 4, i.e., the defendants 2, 3 and 4 chose to file an application only on 4.4.2016 seeking the setting aside of the ex parte order with a delay of 1639 days. It is apparent that the said delay has not been explained satisfactorily and even if it is held that there is no limitation prescribed in terms of Order IX rule 7 CPC for filing such an application seeking setting aside of the ex parte proceedings in as much as Order IX Rule 7 CPC provides to the effect: " ORDER IX Appearance of Parties and Consequence of Nonappearance......

7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.—Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.", the application seeking the setting aside of the proceedings was not filed even on the date 9.7.2014 nor on 17.11.2014 nor on 26.2.2015 nor on 12.8.2015 nor on 17.12.2015 when there was appearance as per record on behalf of the respondents no. 2, 3 and 4. Further more, as rightly contended on behalf of the petitioner in view of the Article 137 of the Schedule to the Limitation Act, 1963 which expressly provides that where there is no period of limitation prescribed, the application seeking the grant of any relief had to be filed within three years in terms of Article 137 of the Schedule to the Limitation Act, 1963 as the said Article provides for such relief as a residuary clause from when the right to seek redressal accrued as was also considered in the verdict Visalakshi V. Umapathy (supra) by the Hon'ble High Court of Judicature at Madras the observations in which, this Court is persuaded to accept as also observed by this Court in Vikas Dedeech V.Richlook Garments (P) Ltd. in paragraphs 5 to 8 which read to the effect:

Order IX Rule 7 of CPC and such applications would be governed by Article 137 of Limitation Act, residuary article which prescribed period of three years".

7. The apprehension of the petitioner that on the basis of discussion on the application under Section 5 of Limitation Act, his application under Order IX Rule 7 CPC has also been disposed of in haste, is not well founded. Learned Trial Court has taken note of all the grounds while considering the two applications.