® IN THE HIGH COURT OF CHHATTTRQARH AT BILASPUR )ffi^5 MISC.APPEAL NQ.Jop,5 QF 2004 / APPELLANT; DEFENDA^J) no.l ^&^G^ ^7 ^ •^ RESPONDENTS PLAINTIFF Defendant no.2 Defendant no.3 Defendant no.4. ^' ^^'Sv^^ ^Dayashankar Gupta, S/o Chhatradhari Sav, aged about 30 years, R/o Kedarpur, Nagar- Ambikapur, Distt. Surguja (C.G.) V E R S U S 1 /3 .t State Bank of India, Branch Ambikapur, _^" Distt. Surguja, C.G. •j^- Dinesh Kumar Gupta S/o Loknath Sav, '.^ Sunil Kumar Gupta, S/o Loknath Sav The respondent no. 2 8& 3 R/o Village -Ghui, P.S. Ramkola, Tah. Pratapur, Distt. /Surguja, C.G. Kripashankar Gupta S/o Chhatradhari Sav, aged about 28 years, R/o Village Kedarpur, Distt. Surguja C.G. ^^'" MEMO OF APPEALUNDER ORDER XLIIIRULE Kdl OF CODE OF CIVIL PROCEDURE 1908. Being aggrieved by the order passed on 12Y08.04 by the TV Additional District Judge (F.T.C), Ambikapur, (C.G.) in Misc.C.S. No. 06/2004, the parties being " Dayashankar Gupta Vs. State Bank of IBi^^^Slj ^,-^—^:~ HIGH COURT OF CHHATTISGARH, BILASPUR M.A.No. 1085 of 2004 '^ Dayashankar Gupta Vs. State Bank of India suad others ORDER ^ 10^' / r^ ^' .^\, ,^,,^. Cd.1" Post for /& .05.2005 Sd/- Sunil Kumar Sinha Judge AF.^- -1- ^ ^ /. HIGH COURT OF CHHAmSGARH, BILASPUR M.A.No.1085 of 2004 Dayashankar Gupta -Vs. State Bank of India and others Shri IRg^esh Paadey, counsel for the appellant. Shri N.K. Agrawal, Sr, Advocate with. Shri Qamrul Aziz for fhe respondent No.l. None for respondents no.2, 3 and 4. ORDBR (/0.05.2005) Suail Kumar Sinha, J Being aggrieved with Uie order dated 12.8.2004, passed in MisceUaiieous Judicial Gase No.6 of 2004 by the 4th Additional Distdct Judge (F.T.C), Ainbikapur, the appeUan.t/ defendant no, 1 has filed this Misc. Appeal under order 43 Riile l(d) ofC.P.C., as fhe appUcation under order 9 Rule 13 C.P.C. filed by this appellaiit for settiag aside the ex-parte decree has been disniissed bv the said Court. (2) The brief facts ai'e tiiat the plaiiitiff-baiik filed a suit for recoveiy of Rs. 1,17,961-00 ou 17.1.1994. The appeUaat is defendant no.l hi the said civil suit aad fhe respondents no.2, 3 aiid 4 are otiier defendaiits respectively. The said suit was registered as Civil Suit No,3-B/ 1994. OrigmaUy one Smt Phulmat was the defendant no, 1, However, after her death, her ^M -^- nanie was deleted aad fh.e reniamiag defendaiits were renuinbered as above, k.:v / \ ^'^ (3) After receiving the notices of ftie court, all fhe defendaats (1 to 5) caused their appearaace fhrough their counsel on 14.9.1994 and fhereafter, wntten statenients were filed on 11.3,1995. After fraoiiag of issues the raatter was fixed for bi- party evidence on various dates but was adjoura.ed for so m.any tiines because of the absence of witaesses of the plauitiff aad ultimately, on 19.8.1998, when tiie inatter was refixed for evidence/ the defendants reniamed absent aad the counsel appeariag on behatf of tlie defendants "pleaded no rristrzictions", The court on the said date proceeded exparte agaiast fhe defendaats, recorded exparte evidence of witaesses of the plaiattff-baak, heard fhe argunients aad fixed the laatter for judgnient on 31.8.1998. The ex-parte jzidgment and decree was passed on 31.8.1998. (4) The case of the appeUant/defendaiit is tliat earUer he was haviag no knowledge of the aforesaid judgment aad decree passed by the tdal Court. However, when fhe execution proceediags were drawn, fhen he canie to know about fhe said ex-parte decree on 03,10.2001, Thereafter, he caine to the District Court on 06.10.2001, an appUcation for obtaiaiag certi&ed copy of tlie exparte judginent and decree was filed on 08.10.2001, the copy was received on 15.12.2001 and then \ \ ^•s -3- only, aa appHcation under Order 9 Rule 13 of C.P.C was filed on 19.12.2001. t. (5) Along-wifh the said appUcation under order 9 rule 13 of C.P.C., the appeUant also filed aii appUcation for condonation of delay in filing the said appUcation u/s 5 of fhe Limitation Act. The niaia ground taken ia bofh fhe appUcations is that the counsel appearmg for the defendants had assiired ttiexn fhat tliey are not required to come to fhe Court on each date of heariag and as aad when they are required, they shatl be duly iatLmated by hiai. It is for fhis reason, fhe defendaats were not appeariiig before fh.e torial Court aiid were regularly reprcsented tlirough their counsel. However, counsel for tlie defendaats pleaded no instructions and even fhereafter he did not iafonn theia aiid ultLmately the ex-parte judgraent & decree was passed agaiast fhem. (6) These applications were opposed by fhe plamtiff, The leamed tiial Court after heariag tlie argusixents of titie parties, disinissed both the appUcations by passing fhe order dated 12,8.2004, It is against fhis order the appeUant has ffled this appeal before fhis Court. (7) Leamed counsel for the appellaat submits ttiat fhe court below coinniitted aa eiTor of law by rejectuig the appUcations wifhout considermg fhe fact ttiat the appeUaat had shown sufficient cause for his non-appearaace on tlie said date of ^b -4-- '^ hearing aiid had also shown siifficient cause for not making fhe application wifhia the prescribed period of Imiitation. In fact, ttie court below failed to consider fhat fhe coiuisel engaged by tiie defendants did not iDfonn tiiem either about the date of hearing or about pleaduig csn.o iiistructions" on 19,8.1998 at aiiy poiat of tinie and fhe court below wifhout issuing any notice to fhe defendaats, who were not present when fheir counsel pleaded no instructions, proceeded ex- parte against tlieni aiid fhe same was a "sufficient reason^ for condoning fhe delay and settiag aside tlie ex-parte decree, (8) On fhe otlier haiid, leamed counsel for respondent no. 1 opposes tiiis arguinent. It is subraitted tih.at the defendaats were negligent iti defenditig fhe suit aad it was not tbie duty of fhe Coiut to issue aay notice to tlie appellaiit/defendant before proceeduig ex-parte agamst theni when theu' counsel pleaded no uistnictions on Uie said date. It is also argued fhat no sufficient cause was estabUshed eifher for condoniag the delay or for allowiag the appUcatiou for setting aside tlie ex-parte decree. (9) It is a settled legal position that ia a case where aa ex- parte decree has been passed, tlie defendant can apply for setting aside the said decree aad if he satisfies the court that he was prevented by aay sufficient cause froin appeanng when fhe siiit was called on for hearmg, the court shall make aii order settiag aside fhe decree as agaiast hmi upon such tei-ms M^ ^- L s^ as to costs, paynient into court or ofherwise as it fhings fit. The application for settiag aside should be filed wifhui 30 days as provided under Article 123 of the Limitation Act, If fhe appMcation is delayed, the defendants so applyuxg inay avaU the remedy of section 5 of fhe Limitation Act aiid seek its condonation by satisfying fhe Court aboiit the reasons which prevented him froia approachiag fhe Court wifhiD. tlie prescribed period of Uinitation under the law, ^ ^ (10) It has been held by tlie *Apex Court ia the niatter of Ramlal and ofhers, Appellcsnts -Vs- Rewa Coalflelds Ltd^ reported in AIR 1962 S.C. 361 th.at m constorumg section 5, it is relevaiit to bear in niind two ioiportaat considerations, The fii'st consideration is that Uie expiration of the period of lunitation prescribed gives rise to a right io. favour oftlie decree holder to treat Uie decree as biiidiag between the parties. In ofher words, when tiie period of lunitation prescribed has expired fhe decree holder has obtaiaed a benefit under fhe law of Mmitation to treat the decree as beyond chatlenge, aad fhis legal right which has accrued to fhe decree holder by lapse of tioie shozild not be light heartedly distzirbed. The ofher consideration which cannot be ignored is that if siifficient cause for excusiag delay is shown discretion is given to the Court to condone delay. This discretion has been deliberately confeiTed on the court ia order that jzidicial power and discretion ia that behalf should be exercised to advaace substaiitial justice. ^ v^ This has been held by fhe apex Coiirt after quotiag an observation made by the Madras High Court m the matter of Krishna -Vs' Chathc^pcm, ILR 13 Mcsdras 269 which reads as under: ^' <<Section 5 gives the Court a discreiion zuhich in respect of jurisdiction is to be exercised in the way in zohich judicial power and discreiion ought to be exerdsed upon prindples which are well undersiood; the words 'suffident cause' recewing a Uberal construciion so as to advance substaniial justice when no negligence nor inaction nor want of bonafide is imputable io the appellants (11) The apex Court agam. held in the matter of The State of West Bencial -Vs- The Adndnistratar^ Howrah MunidpGlitti and others refforted in. fl972) 1 SCC 366 that the words ^sufBicient cause" in section 5 of fhe Limitation Act should receive a Uberal constniction so as to advaace substaatial justice VvThen no negUgence or iaaction or waat of bonaiide is iinputable to a party. (Please see Pai'a 30 ofthe said judgnient), (12) It has been further held iti the matter o G.Remte^owdc^ Mcrfor cmd athers -Vs- Specdal Lcmd Acciuisition Offlcer^ Bcintialore (1988) 2 SCC 142 vide »ara 14SKhat there is no general prmciple saving the party froni all niistakes of its counsel, Each case will have to be considered on tlie particuladties ofits own special facts, However, the expressioii 'sufficient cause' ni Section 5 raust receive a Uberal constraction so as to advaace substaatial justice aad generaUy delays ui preferring appeals are required to be condoned ui fhe ^^ -^ iaterest of justice where no gross negligence or deUberate inaction or lack of bona fides is imputable to the party seekiag condonation offhe delay. [:"V- (13) It has also been held in the matter ofN. Beilakrishnesn - Vs- M.Krishnanuifthv (1998) T^SC^ 123 that tcihe law of Imiitation is founded on pubUc poUcy. It is enshrined ia the maxini <(interest reipubUceie up sitflnis Utiuin" (it is for the general welfare fhat a period be put to Utigation). The rules of limitation are not ineant to destroy fhe rights of the pardes. They are meaat to see that pardes do not resort to dilatoiy tactics but seek fheir remedy promptly. The idea is fhat eveiy legal reuiedy niust be kept alive for a legislatively fbced period of tfcme.^ The Apex Court also held that athe length of delay is no inatter, acceptabiUty of fhe explaaation is the onty critenon. Soinetim.es delay of fhe shortest raage inay be uncondonable due to waat ofacceptable explaaation whereas ia certain ofher cases, delay of a very long raage can be condoned as fhe explaaation thereofis satisfactory.^ -y (14) In fhe iastaat case, ifwe exanune the inatter ofdelay, it coines on record fhough the appUcation of fhe appeUan.t fhat in fact, after filing of fhe written statement by fhe defendants, fhe coiiasel for fhe defendaats assured fhein fhat fhey are not required to com.e to fhe court on each date of hearing aad as aad when fhey are required, fhey shaU be duly iatmiated by him. The relevaat order-sheets of the case shows that this ^ -(&- ^'^ • "w-^ matter was fixed for evidence ou so niany dates and was adjouraed only on account of non-production of plaiattfFs witaesses. It is for ihe first ttme, the witoesses of fhe plaintiff appeared on 19.8.1998 aad fhe trial Court took the matter for recorditig the evidence and ou fhis date only, after appeaiiag for a long period, fhe counsel "pleaded no uistructions" on behalf of the defendaats, That is to say fhat he did not participate in tlie proceedin.gs of flie day and he did not thought it proper to cross exainiae the plaiatifFs witaess on behalf of the defendaats. It is also ao. inipoi'tant feature of Uie case Uiat on fhe said date, the defendaats (uicludiag the appeUaiit) were not present aad the counsel pleaded no iiistructions ia fheir absence. Now tlie question arises as to how a conscious defendaat could conie to kaow about the date of evidence so fixed by the Court aad also about the pleadiag of no iastructions by his counsel^ When he is sitting at honie ia all bona fide beUeve that he wUl be caUed by his coiinsel at the appropriate stage of the suit, If the counsel has iiot iaformed the date ofhearing to a party after assunng fh.at tlie party would be irifonned of fhe saaie aad the party anxiously waits but ultiDiately fhe counsel pleads no uistnictioa and even after fhis he does not ioformi the party, fhen naturaUy a part)3r wiU corae to know about fhe developraents of fhe case when at a subsequent stage some proceediags (like execiition etc.,) are drawn ni fhe matter. The case in haad is a simple case of this nature, The couasel after giving assurao.ee did not participate ia tlie case aad had not uitLmated about the exparte Sf -7- proceediags drawn by the Court. This explaaation given by fhe appeUaat supported by aa affidavit was to be accepted by the tdal court aad m fact, m m}^ opmiou, flie trial Court committed an error of law by disraissiag an appUcation filed u/s 5 of fhe Lim.itation Act as non-apprisal by the counsel to the party about the date of hearing after due assuraace aad giviag no iafoiination about pleaditig no rastnictions resulting iiito delay in approachiag flie court for waiit of knowledge is a sufficient cause for condoniag such delay especially ia tiie circuiastaace when fhe gross negUgence or tdeUberate uiaction or lack of bona-fide is not appearing on the part of fhe appellaat. The provisions of section 5 of Lmiitation Act are to be construed liberally so as to advaace substaiitial justice to a bona-fide and conscious Utigant, (15) Now coiniag to the question of tlie Biaiii application filed under order 9 nile 13 of CPC, it is argiied by tlie learaed counsel for the appellant tiiat fhe appeUaat was neither careless nor negligent ui defendiag the suit After inakiag appearance for a long period, counsel pleaded no iastructions aiid even after that he did aot iaforoi fheni aboiit his pleadiag no uistiTictions. The defendants were absent on the date of hearuig aad after pleadiag no iastructions by counsel for the defendants even ftie tdal Court did not issue any notice to fhe defendaats, Leaaied counsel for the appeUaat subinits fliat if the trial court has not issued aay notice to fhe defendaiits who were not present when fheir counsel pleaded no iastructions, .^^- - /o- and proceeded exparte agaiast hun, it was a sufficient reason for settmg aside exparte decree aiid givrag a chaace to fhe defendaat for defendiag his case. \^- / '^ (16) Leamed counsel reUes zipon a decision offlie apex court rendered in the matter of Malkiat Simyh esnd eutother -Vs' Joflinder Slwih and others f1998) 2 SCC 206. It has been held by th.e Apex Court vide para 7 fhat tiie applicaats were neither careless uor negUgent ia defendiag the suit aad tliey had engaged a counsel and were followuig tlie proceedings. In fhis fact situation, tlie trial court, which had adniittedly not issued aay notice to the appeUaiits after fh.eir counsel had reported no io.structlons, should have, ia fhe iuterest ofjustice, allowed fh.at application and proceeded in fhe case from. the stage when the counsel reported no iiistructions. The appeUaats caiuiot, ia fhe facts an^d circunistances of fhe case, be said to be at fault aiid fhey should not suffer. In takiag this view, the apex Gourt has refeiTed to a decision rendered ia the inatter of Tcihil Ram. Jsscirdas Sadcircinoani -Vs- Scuncha.nd Jssardas Sadaransani reported in 1993 Supp f3) SCC 256 wherem fhe Apex Court opined as under: {{It is noi disputed in the preseni case that on 15.3.1974 when Mr.Adhia, Advocate ivUhdreiu from the case, the petitioners were not present in court. There is nothing on the record to show as to whether the petitioners had the \ noiic^ of the hearing of the Cjase on that day. We are of the vieiu, when Mr.Adhia withdrew from the case, the interests ofjustice required, that a fresh notice for actual date of hearing should have been sent to the parties. In any case in thefacts and drcumstances ofthis case, JS' -^t ^ wefeel thai ihe party inperson was not atfault and as such should not be made io suffer." (17) On the ofher haad, learaed counsel for fhe respondent argues that no Diaterial is placed by fhe appeUaat showiiig tliat fhe defendaats were diligently prosecuting tiie suit aad he has not given a proper explaaation for his non-appearance on ftie said date. He referred to tlie decision of fhe apex Court rendered ia fhe niatter of Vifaykufnar Durfscwrctsetd Gesfbi andathers-^vs' Kamlefhed €indothersfl995)6jSCC!48, {A- (18) Ifwe exam.uie fh.e records of this case, it would be clear fhat ia the appUcation fUed under order 9 nile 13 of CPC, the appeUant has pleaded about all fhese facts aad has clearly stated that he is haviag fuU iaterest io. the niatter. He was diligeut in. defending tlie suit. He has specifically pleaded that no uifonnation was received by hirn fhrough his counsel about fhe hearing of the case. This appUcation aad appHcation for condonation of delay have been duly supported by aa affidavit of fhe appeUaat, However, fhe respoudent Bank has filed a simple reply to botli the appUcations aad their reply is not supported by aay affidavit of the concemed authorily. Hence the material placed before fhe torial coiirt is iiot rebutted by respondent uo, 1 and the explaaations ia regard to fhe abseiice on the said date of heariag has to be accepted. There appears no fault on tlie part of fhe appellaat when the counsel duly engaged by the appeUaat did not iafonn him about the date of hearmg aad ia his absence aad also ia absence of the other ^ -1L- -•^ '^^fa.^ defendaats, pleaded no iastructions ui the court, Not only tliis, even after pleadiag of such no iastruction by the coiuisel io. absence of fhe party, the trial court did not issue any notice to tlie appeUaiit or aiiy of the defendaats aad after recordiag exparte evidence on 19.8.1998 itsetf heard the arguments on the same day aiid posted fhe case for deMveiy ofjzidgnient on 31,8.1998. In fact, in the opiaion offhis coiirt, these ai'e the sufficient grounds which may iadicate fhat the appeUaat/defeudaiit was prevented by a sufficient cause froni appearing when the suit was caUed on for hearing aiid the ex- parte decree graiited in favour of respoudent uo. 1 deser^es to be set aside. (19) It is also iinportaat to mention Uiis fact here tliat the suit was filed by fhe baak for recoveiy of tlie outstaadnig ainount of loaa which was disbursed to the defendaiits for purchasiug a Tractor for agricultural piirpose, The Bank is a finaiicial iastitution. Even ofherwise also it will not be put to the loss ia case the exparte decree is set aside and ultiinately, after a bi-party contest it succeeds ia tlie niatter because iii fhat circuiastance they raay get interest ia accordance with. law. That is to say fhat flie taterest of ttie plamtiff is not hainpered tf an opportunity is given to tliis appeUaat/ defendant to coutest tih.e suit. (20) In the facts and circumistaaces of fhe case, the appeal is allowed. The unpugned order passed by the court below is ^ /^ -73- hereby set aside. The application filed for condonation ofdelay u/s 5 offhe Limitation Act ond fhe application iiader order 9 nde 13 of CPC are aUowed. The exparte judgment & decree passed agamst fhe appeUant are set aside. The trial court is directed to complete fhe trial in accordaace wifh law from fhe stage of plamtifiPs evidence. This order is subject to fhe paymient of cost of Rs.1500/" by fhe appellaat to the plaintiff which shaU be deposited/paid wifhiii a period of8 weeks fix>ni today before fhe trial Court. This order is subject to fhe cost aad if the costs are not paid wifhin. the tinie specified, this appeal shaU be deemed to have been dismissed aad fhe ex parte decree passed agaiast fhe appeUaat revived, The appeal is aUowed on the temis referred to above. Records of fhe trial court (CivU Suit aad M.J.C) be sent back forthwifh. Sd/- Sunil Kumar Sinha Judge ^ /Rao/