Miscellaneous Appeal No.578 OF 2010 ---- Against the judgment dated 22.4.2010 passed by Sri Man Mohan Choudhary, learned Additional District Judge – X, Patna in Title Appeal No. 46/2005. ---- 1. THE ISHWARI SAKHARI GRIH NIRMAN SAMITI THROUGH ITS SECRETARY SRI ABHAY KUMAR SINHA AT JAGADEOPATH, GARBHUCHAK, P.S. RUPASPUR, DISTT.PATNA. 2. ABHAY KUMAR SINHA, SECRETARY, THE ISHWARI SAHKARI GRIH NIRMAN SAMITI AT JAGADEO PATH, GARBHUCHAK, P.S. RUPASPUR, DISTT. PATNA. 3. SHYAM BABU SINGH S/O SRI BHAGWAT SINGH 4. MOTI DEVI W/O SHYAM BABU SINGH 5. SHASHIBHUSHAN KUMAR 6. SUNIL KUMAR SINGH, BOTH SONS OF SHYAM BABU SINGH 7. LAL BABU SINGH S/O BHAGWAT SINGH 8. PANPATI DEVI W/O LAL BABU SINGH 9. RANBIR KUMAR 10. GIRISH KUMAR, BOTH SONS OF LAL BABU SINGH, ALL RESIDENT OF VILLAGE DHANDHANCHAK, P.S. PHULWARISARIF, DISTT. PATNA. ... ... APPELLANTS. Versus 1. REGISTRAR, CO-OPERATIVE SOCIETIES, VIKAS BHAWAN,P.O. SECRETARIAT, BIHAR, PATNA. 2. DISTRICT CO-OPERATIVE OFFICER, BUDH MARG,P.O. G.P.O. DISTT. PATNA. 3. SARASWATI DEVI W/KO GHUMAN SINGH 4. MANISH KUMAR S/O GHUMAN SINGH 5. GHUMAN SINGH S/O LATE KESHAV PRASAD SINGH ALL RESIDENT OF VILLAGE ASLAN, P.S. GARHAR, DISTT. BHOJPUR AT PRESENT RESIDENT OF MUHALLA MITHAPUR, B-AREA, KANNULAL ROAD, P.O. G.P.O., P.S. JAKKANPUR, DISTT. PATNA. 6. RAJ KISHORE PRASAD S/O LATE MATHURA PRASAD 7. SHOBHA DEVI @ SHEO DEVI W/O LATE ASHOK KUMAR 8. MANISH KUMAR @ PUTTU 9. SARITA KUMARI 10. MOUSMI KUMARI ALL SON AND DAUGHTERS OF LATE ASHOK KUMAR 11. LAL BABU GUPTA 12. BINOD KUMAR 13. NAND KISHORE PRASAD 14. NAVAL KISHORE PRASAD 15. VIKASH KUMAR GUPTA 16. RANJIT KUMAR GUPTA ALL SONS OF LATE MATHURA PRASAD 17. SHOBHA DEVI W/O LATE MATHURA PRASAD 18. VIDYA SINGH W/O MAHADEO SINGH 2 19. RAM BILAS RAI S/O LATE SHAKHICHAND PRASAD ALL RESIDENT OF PHULWARISARIF, P.O. + P.S. PHULWARISARIF, DISTT. PATNA. ... ... RESPONDENTS. ---- For the Appellants : Shri B.N.P. Singh, Advocate For the State : Shri J.S. Arora, S.C.6 For Respondent Nos. 3, 4 and 5 : Shri Shashi Shekhar Dwivedi, Senior Advocate. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Heard Shri B.N.P. Singh, learned counsel for the appellants, Shri G.S. Arora, learned Standing Counsel No.6 appearing on behalf of respondent nos.1 and 2 and Shri Shashi Shekhar Dwivedi, learned Senior Counsel appearing on behalf of respondent nos.3, 4 and 5. 2. The present Miscellaneous Appeal has been preferred under Order XLIII, Rule 1(u) of the Code of Civil Procedure against judgment and order dated 22.4.2010 passed by Shri Man Mohan Choudhary, learned Additional District Judge-X, Patna in Title Appeal No.46 of 2005, whereby the learned Judge, while allowing the appeal remanded the same to the court below for adjudication of the suit afresh on the basis of pleadings of the appellants and respondents and 3 directed the appellants to file their written statement in the court below. The learned appellate court also condoned the delay in filing the appeal subject to payment of cost of Rs.2,000/- by each of the appellants. 3. Short fact of the case is that the plaintiff/appellants filed a suit vide Title Suit No.426 of 1992 for declaration that the principal defendants had no title to the suit land except right to take the balance of consideration money. The plaintiffs‟ case is that they had purchased suit land measuring 18.3/4 decimals of land of Plot No.1220 for a sum of Rs.1,08,000/- out of which Rs.12,000/- was paid as advance. According to the terms of the sale deed the title of the land was passed on the date of execution of the sale deed. The balance consideration money was to be paid at the time of Chirkut Badlain (Takawazul Badlain). After purchasing the land, the plaintiffs developed the land and made it into suitable house plots. Same was allotted to its members. While the price of land in that area started going up, the principal defendants, one way or the other, did not complete the procedure of Chirkut Badlain nor they took the 4 balance amount. The plaintiffs‟ further claim that they also got legal notice served on the principal defendants, but they did not do the Chirkut Badlain. 4. In the suit principal defendants i.e. Defendant Nos.1 to 8a filed written statement and raised several objections. It was categorically asserted that there was agreement for sale dated 6.4.1989 between the heirs of Mathura Prasad on one side and Ishwari Sahkari Grih Nirman Samittee on the other for sale of an area of 2 Acre 23 decimal of different plots and 12 katha of Plot No.1220 for Rs.15 lakhs out of which Rs.1,20,2000/- was paid as earnest money to the executor for the 10 sale deeds in favour of the plaintiffs. All the 10 sale deeds were executed by the defendants and his family members through their attorney, but the balance consideration money was to be paid at the time of Takabzul Badlain, which was to be done within a reasonable time i.e. within one month. It was further claimed that those defendants made repeated request for payment of balance consideration money, but the plaintiffs avoided. The defendants gave notice to the plaintiffs and also published the news in 5 newspaper „Nav Bharat Times‟ on 16.12.1989 and when plaintiffs did not pay the consideration money in time, those defendants executed registered cancellation deed on 19.11.1990 cancelling the said sale deed. Thereafter, those defendants had sold most part of the suit land to different persons by sale deed dated 26.8.1991 and 2.8.1991. The purchasers were respondent nos.3, 4 and 5 of the present appeal. However, the learned Sub Judge-IX, Patna decreed Title Suit No.426 of 1992 in favour of the plaintiffs on condition that plaintiffs would deposit remaining consideration amount of Rs.96,000/- in the court in the name of defendants. 5. Thereafter, the respondent nos.3 to 5 of the present appeal preferred an appeal vide Title Appeal No.46 of 2005. The respondent nos.3 to 5 claimed that despite the fact that they had purchased the suit land from the principal defendants i.e. Defendant Nos.1 to 8a before filing of Title Suit No.426 of 1992 initially they were not impleaded as defendants. However, subsequently, plaintiffs amended the plaint and impleaded them as Defendant Nos.8b to 8d. In the suit, notices 6 were never served on the Defendant Nos.8b to 8d i.e. respondent nos.3 to 5 in the present appeal nor plaintiffs took any step for substituted service of notice and behind back of them the judgment and decree was obtained by the plaintiffs. It was also alleged that the principal defendants i.e. Defendant Nos.1 to 8a went in collusion with the plaintiffs and thereafter, suit was decreed in favour of the plaintiffs. At initial stage, the Defendants 8b to 8d filed a petition under Order IX Rule XIII of the Code of Civil Procedure for setting aside ex-parte judgment and decree, which was numbered as Misc. Case No.4 of 2001. It was pleaded that due to wrong advise at initial stage, he could not prefer appeal against the ex-parte judgment and as such appeal vide Title AppealNo.46 of 2005 was filed on 3.8.2005 along with petition under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure and finally Title Appeal No.46 of 2005 was allowed by the impugned judgment and order and matter was remanded back to the court below. 6. Aggrieved with the impugned order of remand the appellants approached this Court by 7 filing the present Miscellaneous Appeal under Order 43 Rule 1(u) of the Code of Civil Procedure. 7. Shri B.N.P. Singh, learned counsel for the appellants, while questioning the impugned judgment and order, in some and substance, has raised two pertinent questions i.e. delay in filing Title Appeal No.46 of 2005 was condoned in illegal and irregular manner and same was contrary to provisions contained in Order 41 Rule 3A of the Code of Civil Procedure and second that there was no justifiable cause for passing the remand order. 8. While elaborating his contention that by the impugned judgment, the court below had no authority to condone the delay and also condonation of delay was not sustainable in the eye of law, it was argued by Shri Singh that the appeal was preferred after more than five years from the date of judgment and decree passed in Title Suit No.426 of 1992. The judgment and decree in the suit was passed on 28.1.2000 whereas the title appeal was filed on 3.8.2005. It was argued that it is not a case that the appellants in Title Appeal No.46 of 2005 were not aware regarding the judgment and 8 decree passed in the suit, which is evident from the fact that after the suit was decreed on 27.7.2001, the respondent nos.3 to 5 of the present appeal had preferred a Miscellaneous Case vide Misc. Case No.4 of 2001 under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte judgment and decree. The plea, which was taken in the limitation petition, was not sustainable in the eye of law. Shri B.N.P. Singh, learned counsel for the appellants has taken this Court to the impugned judgment to show that in the limitation petition, a plea was taken that they were wrongly advised by the conducting advocate and only after being properly advised by a Senior Advocate, they came to know that against such judgment and decree appeal could have been filed. It was submitted that it is settled principle of law that ignorance of law is no excuse and as such on such plea the learned court below was not required to condone such a long delay. In support of his argument, Shri Singh has relied on a recent judgment of the apex court reported in 2010(5) SCC 459 (Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation and 9 another). He has specifically referred paragraphs 15 and 16 of the said judgment. It was submitted on behalf of the appellants that in the similar manner in the case of Oriental Aroma Chemicals Industries limited Case (Supra), about five years delay was condoned by the High Court, which was set aside by the Supreme Court. Taking clue from the said judgment, Shri Singh has argued that there were no sufficient cause for condoning the delay and as such the impugned order to the extent of condoning the delay is liable to be set aside. It was further submitted that Title Appeal No.46 of 2005, which was filed on 3.8.2005 was admitted without condoning the delay and as per order of the court below limitation petition was to be considered at the time of hearing, which was not permissible in the eye of law particularly in view of Order XLI Rule 3A of the Code of Civil Procedure. The said delay was condoned by the impugned judgment, which was passed on 22.4.2010. Accordingly, it has been argued that the learned court below has grossly erred in entertaining the appeal while allowing the limitation petition. 9. On the point of non availability of 10 justifiable reason for remanding the case to the court below by the impugned judgment, it was submitted by Shri Singh that there was no sufficient reason for the same and as such the order of remand is not sustainable in the eye of law. 10. While opposing the appeal, Shri Shashi Shekhar Dwivedi, learned Senior Counsel appearing on behalf of respondent nos.3, 4 and 5, at the very outset, has raised preliminary objection on the argument of learned counsel for the appellants so far as limitation point is concerned. It was submitted by Shri Dwivedi that the present appeal, which has been preferred under Order XLIII, Rule 1(u) of the Code of Civil Procedure is confined to the portion of the impugned judgment to the extent of its remand. He has specifically referred Order XLIII Rule 1(u) of the C.P.C., which is as follows : “ ... an order under rule 23 (or rule 23-A) of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court ...” 11. It was submitted that since the 11 present appeal has been preferred under aforesaid provision, the appellants cannot be allowed to address the court on the question of limitation, which was condoned by the court below. It was argued that the portion of the impugned judgment relating to condonation of delay cannot be questioned in the present proceeding. He submits that the appellants are not at liberty to question the impugned judgment on condonation of the delay. It was submitted by Shri Dwivedi that learned counsel for the appellants was required to address the court only on the question of remand by the impugned judgment. While replying to the submission of learned counsel for the appellants that there were no justifiable reason for remanding the case, it was submitted that it was the case of the respondent nos.3 to 5, which was corroborated by the written statement filed by Defendant Nos.1 to 8a that before filing of Title Suit No.426 of 1992, respondent nos.3, 4 and 5 of the present appeal, had already purchased the suit land after paying full consideration amount. Thereafter, they also got their house constructed over the plot in question. They are 12 also paying rent through receipt to the Government and as such there were sufficient cause and reason for remanding the matter to the court below granting liberty to those respondent nos.3 to 5 for filing written statement. Accordingly, it has been argued that the present appeal is liable to be rejected. 12. Besides hearing learned counsel for the parties, I have also perused the materials available on record. From the impugned judgment, it is evident that in Title Suit No.426 of 1992, no notice was validly served on respondent nos.3, 4 and 5 and as such suit was decreed without affording any opportunity to them. Learned Additional District and Sessions Judge-X, Patna, in its judgment and order dated 22.4.2010, has discussed regarding non service of notice at page-5 second paragraph and also at page 6 fourth paragraph, which are necessary to be quoted below : “ The appellants being the purchasers of the suit land from the land owners were made parties in the suit as deft. No.8b, 8c and 8d by order dated 14.5.93. The summon and notices 13 were issued against these defendants (appellants) on 27.5.93 and without any service report and without publication of notice in any newspaper the court below fixed the suit for ex-parte hearing against the defendant by order dated 7.7.93 i.e. just after one month ten days of the issuance of summons and notices. There is no evidence on record to show that the process server, Nazarat Peon either personally served the summons on the defendant no.8b to 8d and there is also not any report on the record that they refused to receive the summons. The plaintiff in support of the service of summons neither filed any petition nor any affidavits. The postal notices were also not returned back and tagged with the lower court record. It was bounded duty of the court below to take the evidence of process 14 server and only thereafter the court should have presumed the service against the defendants/appellants. There is also provision of substituted service against the defendants. Order-XX(1)(B) says “Where the court acting under Sub Rule-1 orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating on the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally work for gain”. The record shows that there are two addresses one permanent and the other temporary/present are given in the plaint, but the L.C.R. does not show that the summons and notices were issued on both the addresses of the appellants. Therefore it can be said that the summons and notices issued 15 against the appellants were not proper. If the proper notice or summon would have been served against them, they might have appeared in the court below and filed their W.S and contested the suit.” “ The lower court record transpires that the learned court below soon after 30 days of the issuance of summons and notices declared that the summons has been duly served. It was imperative duty of the court below that before declaration of service of summons he should take the affidavit of the serving officer and also record his evidence and in case the service of summon or notice was not proper, under that circumstances he should order for publication as provided U/O V Rule-20(1A) C.P.C. The L.C.R goes to show that no summon either by Nazarat or by post was 16 at all served on these appellants and also without publication of the notices in the newspaper the suit was decided exparte. In view of the aforesaid facts I find that there is nothing on the record to prove that these appellants had any knowledge of the said suit by any means or any summons of the suit was ever served upon these appellants. Thus it is baseless to say that they had allowed the suit to be decreed exparte. In such view of the matter I am of the opinion that the impugned judgment and decree passed in T.S. No.426/92 is not at all binding against the appellants/deft. No.8b to 8d.” 13. After going through the impugned order, the court is satisfied that suit was decreed without valid service of notice on Defendant Nos.8b to 8d, who are respondent nos.3, 4 and 5 in the present appeal. 14. Similarly, from the impugned order, 17 it appears that the Defendant Nos.8b to 8d (respondent nos.3 to 5) had claimed that before filing of Title Suit No.426 of 1992, they had already purchased the suit land and thereafter, they got the building constructed over the suit land. It further appears that principal defendants i.e. Defendant Nos.1 to 8a, in their written statement, had claimed that they had cancelled the agreement to sale, which was entered in between them and the plaintiff/Ishwari Sahkari Grih Nirman Samiti and thereafter, they transferred the suit land by different registered sale deeds. 15. In that view of the matter, court is of the opinion that there were sufficient reason for remanding the matter to the court below enabling respondent nos.3 to 5 of the present appeal to file their written statement within specified time. 16. So far as condonation of delay by the court below is concerned, the court is of the opinion that on the ground of limitation, such valuable right of the concerned respondents cannot be defeated. At the time of condoning the delay, liberal approach is to be taken by the court. Time without number, it was held that no 18 hard and fast rule can be laid down for condoning the delay. Facts of the present case are sufficient to indicate that for the ends of justice giving opportunity to the concerned respondents was necessary. From the record, it appears that the concerned respondents i.e. respondent nos.3 to 5 had taken the plea of purchasing the suit land prior to filing of Title Suit No.426 of 1992 and thereafter, they got their house constructed on the suit land and they are also paying rent through receipt. In such situation, court is of the opinion that their right for hearing cannot be defeated on technicality of limitation. So far as oriental Aroma Chemical Industries Limited Case (Supra) is concerned, judgment in the said case was passed in peculiar facts and circumstances of the case, which is evident from paragraph-18 of the said judgment, which is as follows : “18. A reading of the impugned order makes it clear that the High Court did make a bald reference to the application for condonation of delay filed by the respondents but allowed the same without adverting to the 19 averments contained therein and the reply filed on behalf of the appellant. Not only this, the High Court erroneously assumed that the delay was of 1067 days, though, as a matter of fact the appeal was filed after more than four years. Another erroneous assumption made by the High Court was that the appellant had not filed reply to controvert the averments contained in the application for condonation of delay.” 17. Accordingly, the court is of the opinion that the appellants may not get any help from Oriental Aroma Chemical Industries Limited Case (Supra). 18. In view of peculiar facts and circumstances of the present case, the court is of the opinion that for the ends of justice, the learned Additional Judge Judge-X, by the impugned order, has rightly and legally remanded back the matter to the court below and allowed the appeal, which requires no interference by this Court. 20 19. Accordingly, the appeal stands dismissed. However, in the facts and circumstances of the case, no order with regard to cost is being passed. PATNA HIGH COURT Dated the 21st April,2011 N.A.F.R./N.H. ( Rakesh Kumar,J.)