IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO 5287 of 2006 DATE OF DECISION : MAY , 2008 BALWANT KAUR ....... APPELLANT(S) VERSUS ISHER SINGH ETC. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. GS Bhatia, Advocate, for the appellant. Mr. YP Khullar, Advocate, for respondent No.1. AJAI LAMBA, J. Defendant has filed this first appeal against the order passed by the Additional District Judge, Ludhiana, whereby the application for rehearing the appeal decided ex-parte, has been dismissed. The facts are that respondent No.1-Isher Singh had filed a suit for possession of certain land against Jagtar Singh, predecessor-in-interest of the appellant herein. The case of Isher Singh (respondent No.1 herein) was that Jagtar Singh had appointed his sister-Harjinder Kaur as his general attorney to sell the said land on his behalf. Harjinder Kaur had entered into an agreement to sell the land for Rs.25,000/-, where against she had FAO 5287 of 2006 2 received Rs.10,000/- as earnest money and executed the sale deed dated 14.11.1983, registered on 25.11.1983, after obtaining the remaining sale consideration. According to the case of Isher Singh (respondent No.1 herein), he had become the owner of the land but the possession of the same was not being delivered. The facts that need to be noticed for the disposal of the first appeal, are that the suit of the plaintiff; namely, Isher Singh, was dismissed on the ground that the plaintiff had failed to prove that Harjinder Kaur had been authorized by Jagtar Singh through Power of Attorney, to sell the land. The plaintiff-Isher Singh filed an appeal against the judgment. The matter was remanded by the first appellate Court while framing two additional issues. The additional issues need to be noticed, which are as under:- “1A) Whether Jagtar Singh respondent No.1 executed power of attorney dated 3.11.83 in favour of Harjinder Kaur respondent and the same is valid deed of attorney? OPP 2B) If issue No.1A is proved whether sale deed Ex.P1 was executed by Harjinder Kaur in favour of the appellant for consideration and the same is binding on respondent no.1, OPP.” After recording the evidence on the additional issues, vide judgment dated 11.1.1993, it was held, on the basis of the admission made by Harjinder Kaur that she was the attorney of Jagtar Singh and had executed the sale deed in favour of the plaintiff, the plaintiff was the owner of the suit land. Accordingly, both the additional issues were FAO 5287 of 2006 3 decided in favour of the plaintiff. When the appeal was fixed for arguments on 4.1.1999, Isher Singh did not appear and the appeal was dismissed in default. Isher Singh, accordingly, moved an application for restoration of the appeal. Notice of the application was issued to the defendants. The defendants appeared through counsel-Smt.Kamal Jyoti, Advocate. On subsequent dates, however, the counsel for the defendants did not put in appearance. The appeal was restored vide order dated 11.1.2000. Since, the counsel for the defendants did not appear, the appeal was allowed vide judgment dated 21.1.2000. It is against judgment dated 21.1.2000 that the application was moved on 2.11.2001 by the defendants for rehearing the appeal in their presence. Plaintiff-Isher Singh took various objections to rehearing, including that the application was barred by time and was also hit by delay and latches. Before this Court, learned counsel for the appellant-defendant has contended that the counsel Smt.Kamal Jyoti, Advocate, had been engaged. Since the counsel had been engaged, who, for her own personal reasons, could not appear, it was a sufficient circumstance to allow the application. The circumstances under which Smt.Kamal Jyoti, Advocate, could not appear are that she was pregnant. She gave birth to a child and, thereafter, went to her in-laws house in Nepal. The appellant-defendant was not informed by Smt.Kamal Jyoti about her inability to appear in Court on behalf of her client. She had rather asked the appellant not to come to Court. FAO 5287 of 2006 4 In the impugned order, it has been concluded that the defendants have devised a method to delay the case because it was a suit for possession and a finding had been returned against the defendants. Jagtar Singh, in fact, had executed a Power of Attorney in favour of Harjinder Kaur, on the basis of which the land had been sold in favour of the plaintiff. I have considered the argument of the learned counsel for the appellant and have gone through the record. The facts that have weighed with the Court are reflected in para-18 of the impugned order and read as under:- “18. Much stress had been laid on the fact that Balwant Kaur was an old lady and a widow due to which she was unable to attend the court proceedings. She, however, had two sons who in her absence could have attended the proceedings of the court. It is being wrongly alleged by the counsel for the applicants that Sukhminder Singh and Supinder Singh were minors. In fact, Balwant Kaur had been served personally for 28.7.99 on which date also she did not come present and was proceeded against exparte. On 6.8.1999 an application was moved before the Appellate court that both Sukhminder Singh and Supinder Singh have become major upon which they were impleaded as such and a separate notice was issued against them. The order dated 27.8.1999 also shows that Balwant Kaur was again served for that date and again she did not come present. The power of attorney executed in favour of Mrs. Kamal Jyoti, Advocate, is signed by Sukhminder Singh also which belies the contention of the application that he was minor. This fact on the one hand shows that the averments in the application are wrong and the true facts are being concealed to get a favourable FAO 5287 of 2006 5 consideration from the court. It is however proved that the other respondents were major but even then they did not come present. There is no explanation as to why Sukhminder Singh and Supinder Singh did not appear on the date fixed in the case. It may be mentioned that advice of not appearing in person by Mrs. Kamal Jyoti, Advocate, was to Balwant Kaur alone and not to these respondents. “ Another fact that needs to be noticed is that the application for rehearing was filed after more than 1 year and 9 months, as against the limitation of 30 days provided under Article 123 of the Limitation Act, 1963. Learned counsel for the appellant has referred to Saraswati Das and others v. Pravat Kumar Sahoo and another, 2002(2) Civil Court Cases 51 (Orissa). The judgment does not apply to the facts of the present case in view of distinguishable facts. Rather, the application filed under Order 41 Rule 21, Code of Civil Procedure, for rehearing had been dismissed. The observations in para-7 of the judgment need to be noticed and are as under:- “......... After receiving the notice, it was incumbent upon a party to take such steps as deemed just and proper to appear before the court when the matter is taken up for hearing. Under no stretch of imagination, it can be argued that if a party, even after valid service of notice does not appear, the courts should await till the litigant chooses to appear. According to me, the words “sufficient cause” cannot be stretched to that extent. It is the settled principle of law that “sufficient cause” has to be interpreted in the given facts and circumstances of each case and the courts have to adjudge on the touch stone of pragmatic parameter and it can never be an iron-tight jacket. Once it is found that the summons were FAO 5287 of 2006 6 duly served, it is for the litigant to appear in court and prosecute the lis. Failure to do so, would not construe as “sufficient cause”. Such an interpretation will be unjust and would be a boon to unscrupulous litigants.” Learned counsel for the appellant has also relied on Ganeshi v. Khushi Ram Dwarkash Nath and others, 1986 (2) CLJ (C&Cr.) 117, Amarjit Singh and another v. Balwant Singh, 2000(3) Civil Court Cases 586 (P&H), Ram Narain Singh v. Smt.Gurinder Kaur and another, 1997 (2) Civil Court Cases 204 (P&H), Sat Narain v. Rohit, 2000(1) Civil Court Cases 403 (P&H), Harjinder Singh v. Kirpal Singh, 2000(2) Civil Court Cases 366 (P&H), M.K. Prasad v. P. Arumugam, 2001 (4) R.C.R. (Civil) 87 and Gulab Singh v. Jawala Singh, 2006 (1) R.C.R. (Civil) 765. The judgments, in my opinion, are also of no help to the case of the appellant. In Ganeshi's case (supra), the counsel for the appellant had met with an accident and, therefore, it was held that no intentional delay could be attributed to the party in filing the application for restoration of the appeal. The facts of the present case, as noticed in the reproduced portion of the impugned order, reflect that the delay was intentional. Sukhminder Singh and Supinder Singh having become major in age, were impleaded and served. The power of attorney executed in favour of Smt. Kamal Jyoti, Advocate, was signed by Sukhminder Singh also. The appellant falsely tried to build up a case that Sukhminder Singh was a minor. Even Sukhminder Singh and Supinder Singh did not appear. I have no reason to differ with the conclusion that the delay on the part of the appellant to appear seems to be intentional in view of the facts noticed FAO 5287 of 2006 7 above. In Amarjit Singh's case (supra), the issue was that the limitation starts to run from the date of knowledge of ex-parte decree when summons or notice had not been duly served. Para-6 of the judgment needs to be noticed in this regard and reads as under:- “6. From the perusal of the above, it would be clear that the limitation is 30 days to set aside an ex parte decree and the limitation begins to run from the date of the decree. However, in those cases where the summons or notice had not been duly served, the limitation begins to run from the date when the applicant had the knowledge of the decree. In the present case the defendant had been duly served and had appeared before the trial court through his counsel and had sought time to file written statement. Under these circumstances, the limitation would begin to run from the date of the decree and not from the date of knowledge. The learned trial court committed an illegality by proceeding with the assumption that the limitation would start from the date of knowledge. In AIR 1979 Madras 36 (supra), it was held by a Division Bench of the Madras High Court that under Article 123 of the Limitation Act the starting points of limitation are two. One is the date of the decree and the other is the date of knowledge of the decree. With reference to the second, the condition to be satisfied is that no summons or notice should have been duly served. Thus, it is clear that a person applying for setting aside an ex parte decree can claim the period of limitation to commence from his knowledge of the decree only in case where the summons or notice was not duly served. In other cases, limitation commences from the date of decree itself.” In Ram Narain Singh's case (supra), the issue has been FAO 5287 of 2006 8 addressed in para-9 of the judgment. The relevant portion thereof reads as under:- “........ When a litigant is negligent and is not bothered about his rights, for such a litigant the law cannot come to the rescue because law always helps vigilant and not otherwise. The application dated 7.6.1973 continued up to 24.9.1973. At no point of time the applicant thought proper to make an application before the Court for the amendment. ........” Going by the law laid down in the case of Ram Narain Singh (supra), the appellant was in the know of the pendency of the case, yet was not vigilant to pursue the same and, therefore, cannot seek favourable orders. In Sat Narain's case (supra), it has been held that the limitation starts from the date of knowledge of the ex-parte decree if the notice is not duly served. In the case in hand, the appellant knew about the pending appeal and, therefore, cannot derive any benefit from the judgment. This is particularly so in view of the facts and circumstances of the case noticed above, which need not be repeated. In Harjinder Singh's case (supra), the counsel had pleaded no instructions. Despite that, notice was not given to the party and an ex- parte decree was passed. In this view of the matter, this Court had held that a patent illegality had been committed when notice to the defendant was not given. Accordingly, the ex-parte decree was set aside. In M.K. Prasad's case (supra), the Hon'ble Supreme Court of India had held that length of delay was not the relevant factor, acceptability of the explanation was the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of an acceptable FAO 5287 of 2006 9 explanation whereas in certain other cases, delay of a very long range could be condoned as the explanation thereof was satisfactory. In the case in hand, the circumstances have been noticed and they clearly dis-entitle the appellant to any relief. Not only the delay is of very long range, the circumstances indicate that the delay was caused intentionally, as noticed in the earlier part of the judgment. In Gulab Singh's case (supra), the facts of the case were different in so much as this Court was considering an application under Section 5 of the Limitation Act. The facts of the present case are clearly different in so much as the appellant was made aware by the Court by way of issue of notice that the application for restoration had been filed. The appellant put in appearance through a counsel, however subsequently, the counsel did not appear, nor the appellant pursued the litigation. The facts being clearly distinguishable, the learned counsel for the appellant cannot possibly draw any mileage. Learned counsel for respondent No.1, on the other hand, has relied on the judgments in Amarjit Singh's case (supra), Smt.Dev Bala Sehgal v. Devinder Pal Sehgal, 2001(4) RCR 756 and International Cotton Traders, Tatabad, Coimbatore v. P. Narayanaswami, AIR 1979 Madras 36. In Amarjit Singh's case (supra), the following has been held in paras 5 and 6:- “5. After hearing the learned counsel for the parties and pursuing the record, I find force in the various submissions made by the learned counsel for the petitioners. Article 123 of the Limitation Act reads as under:- FAO 5287 of 2006 10 xxx xxx xxx xxx xxx xxx xxx 123. To set aside a decree passed ex parte or to rehear an appeal decree or heard ex parte Thirty days The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree xxx xxx xxx xxx xxx xxx xxx 6. From the perusal of the above, it would be clear that the limitation is 30 days to set aside an ex parte decree and the limitation begins to run from the date of the decree. However, in those cases where the summons or notice had not been duly served, the limitation begins to run from the date when the applicant had the knowledge of the decree. In the present case the defendant had been duly served and had appeared before the trial court through his counsel and had sought time to file written statement. Under these circumstances, the limitation would begin to run from the date of the decree and not from the date of knowledge. The learned trial court committed an illegality by proceeding with the assumption that the limitation would start from the date of knowledge. In AIR 1979 Madras 36 (supra), it was held by a Division Bench of the Madras High Court that under Article 123 of the Limitation Act the starting points of limitation are two. One is the date of the decree and the other is the date of the knowledge of the decree. With reference to the second, the condition to be satisfied is that no summons or notice should have been duly served. Thus, it is clear that a person applying for setting aside an ex parte decree can claim the period of limitation to commence from his knowledge of the decree only in a case where the summons or notice was not duly served. In other cases, limitation commences from the date of decree itself.” In the case in hand, it therefore, becomes clear that the FAO 5287 of 2006 11 application for restoration was filed after a considerable delay which has not been explained by sufficient explanation or cause. In Smt.Dev Bala Sehgal's case (supra), the following has been held in para-11:- “11. It is abundantly clear that the application in hand for restoration of the suit was not filed within 30 days from the date of dismissal of the suit in default. The Court could not extend the time of limitation by bringing it under the principle of “interest of justice” and by-passing the mandatory provisions of Article 122 of the Limitation Act, 1963. Article 122 of the Limitation Act, 1963 does not provide that the application has to be filed within 30 days from the day of knowledge of the suit having been dismissed in default. In fact, it is very specific and clear that it has to be counted from the date of dismissal. The application having been filed beyond the prescribed period of limitation and the limitation having not been condoned on a written application or an oral request of the plaintiffs, the Court cannot restore the suit while invoking the inherent jurisdiction under Section 151 CPC. It is well-established that the express provisions of law cannot be over-ridden by invoking inherent jurisdiction.” In P. Narayanaswami's case (supra), it has been held that a person applying for setting aside ex-parte decree can claim the period of limitation to commence from his knowledge of the decree only in a case where the summons or notice was not duly served. In other cases, limitation commences from the date of decree itself. The contention of the learned counsel that 30 days are to be calculated from the date of information or knowledge, cannot be accepted in view of the circumstances noticed in para-18 of the impugned order, FAO 5287 of 2006 12 reproduced in the earlier part of the judgment The appellant could not have taken this ground in view of the fact that the factum of pendency of proceedings/appeal was known to the appellant as she had been served and had put in appearance through her counsel. It was for the appellant to pursue the litigation. In any case, the argument that the counsel had been engaged, therefore, the matter was not pursued, is not acceptable in view of delay of more than 1 year and 9 months in filing the application itself. The contention of the learned counsel for the appellant at the time of issue of notice of motion that fresh notice was required to be issued after restoration of the case, is also not acceptable. Once the application for restoration was filed and the notice of the same had been issued and served and the appellant having engaged a counsel, who had put in appearance, no further notice was required as the factum of pendency of the matter was known to the appellant. Another fact that needs notice is that the application for condonation of delay was not initially filed within 30 days by 21.2.2000 and was filed only on 27.1.2005 when the issue was raised i.e. after nearly 5 years. The appellant cannot be allowed to enjoy the luxury of litigation on her whims. The appellant, having been served, was required to be a vigilant litigant and was required to pursue the litigation in the right earnest. The contention that a lawyer had been engaged and, therefore, the subsequent events of default are required to be condoned, is not acceptable. FAO 5287 of 2006 13 In view of the above, no ground for interference in this appeal is made out. The appeal is dismissed. May , 2008 ( AJAI LAMBA ) Kang JUDGE