Case: MOHD. SAHID  Vs. RAZIYA KHANAM (DIED) THR. LRS

ya (since dead) filed a Civil Suit No.591 of 1979 against the appellants No.1 to 3 for cancellation of sale deeds dated 17.02.1979 and 17.05.1979 in favour of the appellants and for relief of permanent injunction against them over the suit land. Respondent(since dead) contended that appellants No. 1 to 3 forged documents and executed a bainama of the suit property in their favour on 17.02.1979. Some part of the suit property was also sold to appellantby sale deed dated 17.05.1979. The respondents resisted the suit contending that respondent No.2Hadisunnissa executed a Hibanama in favour of respondent No.1Raziya Khanam (since dead) on 27.02.1979 of her properties and building situated in the village Nadva Khas and Revri Dihi and other villages on 27.02.1979 in the consolidation office.      4. The said Suit No.591 of 1979 was decreed on 16.04.1981 against appellants No.1 to 3 with the observation that they had been properly served and had appeared and sought time for filing written statement; but despite ample time being given, they had not filed written statement.      5. In appeal by appellants, the First Appellate Court noted that appellant No.Asid was a minor at the time when the original suit was filed and the proceeding for appointment of his legal guardian has not been completed in accordance with law and in such circumstances, it could not have been possible to have proper service upon appellant No.Asid. After considering the submissions of appellants No.1 to 3, the First Appellate Court vide order dated 29.11.1985 allowed the appeal and remitted the matter back to the trial court with a direction to rehear both the parties and decide the case on merits with costs of Rs.50/payable by the appellants and filing written statement on or before 03.01.1986.      6. RespondentKhanam (since dead) filed a Writ Petition(C) No.19550 of 1985 before the High Court against the order of the First Appellate Court in which interim order dated 20.02.1985 was passed by the High Court. The said writ petition remained pending for nearly fifteen years. In the said writ petition, the appellants herein were neither served nor they entered their appearance. The High Court noted that the First Appellate Court recorded a finding that the appellants were not served with notice and rightly set aside the decree dated 16.04.1981 and remanded the matter back to the trial court. The said writ petition was dismissed on 20.02.2001 and order of interim stay dated 20.02.1985 was vacated.      7. The order sheet of the trial court dated 30.05.2011 indicates the order dated 20.02.2001 passed in Writ Petition (C) No.19550 of 1985 was produced before the trial court. The fact that the order in the said writ petition was placed before the High Court on 30.05.2011 is clear from the order sheet of the trial court dated 04.03.2011 which reads that?Proceeding of suit is stayed by Hon?ble Allahabad High Court Record may be produced on30.05.2011 for furtherthe trial in Suit No.591 of 1979 was taken up, substitution applications No.113K2, 114G2, 115G2, 116G2 and 117G1 were taken up and orders were passed on various dates.      8. Though the appellants claimed that they were not present before the trial court in Suit No.591 of 1979, the order sheet dated 14.10.2011 passed by the trial court in Suit No.591 of 1979 notes the presence of both the parties in the trial court on 14.10.2011 when the submissions of the parties regarding preliminary issues were considered and subsequent date i.e. 18.10.2011 was fixed forwhich according to the respondents, the appellants had knowledge about the same.      9. Subsequently, thedid not appear in the suit and the suit was decreedon 10.05.2012. The firstSahid preferred Civil Appeal No.131 of 2013 with application for condonation of delay of 349 days under Section 5 of the Limitation Act. In the said application for condonation of delay, the appellants averred that they came to know about the judgment of the trial court dated 10.05.2012 for the first time on 06.05.2013 when they went to attend the hearing in another case before theMagistrate and at that time, a constable from Police Station Ghosi informed him about the said judgment dated 10.05.2012. According to the appellants, after receipt of such information, they contacted their counsel over telephone for inspection of case file and after inspection on 10.05.2013, they applied for copy of the same which was received on 18.05.2013 and the appeal was filed on 22.05.2013 which caused delay of 349 days in filing the appeal.      10. The application for condonation of delay was dismissed by the First Appellate Court vide order dated 05.08.2015 on the ground that the appellants had knowledge about the judgment dated 10.05.2012 passed by the trial court in Suit No.591 of 1979 and that the appellants were not vigilant, rather they had been negligent. Pointing out that the appellants made incorrect averments in the application and that no sufficient and reasonable cause has been shown by the appellants for the delay, the First Appellate Court dismissed the application. In appeal before the High Court, the High Court noted that the reasons stated in the application for condonation of delay areThe High Court referred to the order sheet of the trial court dated 14.10.2011 which notes the presence of both the parties in the trial court on 14.10.2011 and theevidence in the form of affidavit and that the matter was fixed on 18.10.2011 forwhich clearly shows that the appellants had full knowledge about the proceedings in the 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 Appeal No.819 of 2015 observing that the order of the First Appellate Court does not suffer from any factual error or illegality and that no substantial question of law arises in the Second Appeal.

Reasoning: 17. The averments in the application that the appellants got knowledge about the judgment in Suit No.591 of 1979 dated 10.05.2012 only on 06.05.2013 through a constable is incorrect. On behalf of the respondents, it is stated that in the proceedings before theMagistrate, the appellants filed the application on 23.11.2012 (Objection Paper No.23C2) wherein the judgment dated 10.05.2012 of the civil court was mentioned and it was even averred that the said judgment was passed wrongly. It is thus clear that the appellants had knowledge about the judgment and decree in Suit No.591 of 1979 even on 23.11.2012. While so, the appellantsdefendants have filed application with incorrect averments that they got knowledge about the judgment and decree only on 06.05.2013 at Tehsil Ghosi when constable of the Police Station gave them the information. The High Court rightly rejected the contention of the appellants that they came to know about the judgment dated 10.05.2012 in Suit No.591 of 1979 only on 06.05.2013 through a constable of the Police Station in Tehsil Ghosi, District Mau when he had gone there to Pairvi in another case.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 opportunities given and earlier the suit was decreedagainst them on 16.04.1981. The appellants filed appeal in CA No.395 of 1981 and 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 thedecree dated 16.04.1981 was set aside and the matter was remanded back for decision on merits afresh with condition of depositing cost of Rs.Of course, Writ Petition(C) No.19550 of 1985 was filed challenging the same; the suit being of the year 1979 and earlier being setand the matter having been remitted at the instance of the appellants, the appellants ought to have been vigilant in pursuing the matter.The order sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of the Original Suit No.591 of 1979 and also about the disposal of the Writ Petition(C) No.19550 of 1985 and the appellants have filed application for condonation of delay with incorrect facts. Both the First Appellate Court and the High Court recorded concurrent findings that the appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay.