Ramji Pandey & Ors vs Swaran Kali

3. The respondent herein filed suit no. 508 of 1983 before the Additional Civil Judge, Allahabad against the appellants for the relief of declaration that she was also one of the owners and co-sharers in the property constituting a house numbering 172, Lookerganj, Allahabad and her name should also be shown as one of the purchasers of the said house in dispute in the sale deed alleged to have been executed in their favour by its earlier owner. The aforesaid suit was earlier contested by the appellants herein but subsequently they failed to appear and consequently an ex parte decree was passed in the said suit in favour of the respondent on 10.05.1988 by the Additional Civil Judge. 2

5. At the time when the original suit was filed, the value of the suit was more than Rs. 20,000/- and, therefore, the pecuniary jurisdiction to file the said appeal lay in the High Court and not in the District Court. Therefore, aggrieved by the order dated 04.01.1991 passed by the District Court allowing the appeal, the respondent filed a writ petition which was registered as Writ Petition No. 9638 of 1991. However, during the interregnum period and while the said petition was pending, the pecuniary jurisdiction of the 3 District Court was increased from Rs. 20,000/- to Rs. 5 lacs and, therefore, appropriately at the time of passing of the order, the jurisdiction was with the District Court. The High Court, therefore, passed an order that it would be open to the defendant to move an application for condonation of delay before the District Judge.

6. In terms of the aforesaid order of the High Court, the appellants moved an application before the Additional District Judge, Allahabad under Section 5 read with Section 14 of the Limitation Act [for short "the Act"] and an appeal was registered as appeal no. 494 of 1991. The respondent herein filed an objection to the application filed by the appellants under Section 5 read with Section 14 of the Limitation Act contending inter alia that the appellants herein did not act in good faith nor had they acted with due care and attention so as to enable them to get the benefit of Section 14 of the Limitation Act and, therefore, the time spent by them in pursuing the matter in the wrong forum should not and cannot be condoned.

8. On the other hand, the respondent had argued that the appellants had knowledge of the suit which had been filed but failed to appear in the said suit and also failed to contest the suit and, therefore, the same was decreed. The application filed for setting aside the decree was also rejected by the Additional Civil Judge, Allahabad on 04.05.1989. Against the said order, appellants filed Miscellaneous Case no. 154 of 1989 in the wrong forum which, in fact, was also pointed out by the respondent herein in the objection filed on 01.07.1989. It was pointed out clearly in the said objection at para 5 that the said District Court has no pecuniary jurisdiction to entertain the appeal arising out of the original suit no. 508 of 1983 being 5 valued at Rs. 46,000/- and that the appeal was required to be filed before the High Court.

9. Despite the aforesaid objections taken by the respondent, the Additional District Judge allowed the said application by the order dated 24.02.1992. In the order dated 28.02.2006 the High Court held that the order passed by the Additional District Judge was incorrect and unjustified as this was not a case for grant of indulgence under Section 14 of the Act as it could not have been said that the appellants herein acted in good faith or with due diligence in order to get the benefit of Section 14 of the Act. Since the aforesaid order is challenged in the present appeal and since notice was issued pursuant to which the respondent has also entered appearance, we heard the learned counsel appearing for the parties at length.

11.The suit was filed by the respondent herein in the Court of Additional Civil Judge, Allahabad for a declaration that she was a co-sharer in the suit property to the extent of one half share in the same wherein she also sought for a direction that her name be entered in the agreement dated 01.07.1983 and sale deed dated 16.01.1984. Although, the appellants herein filed a written statement, they failed to appear in the suit thereafter and, therefore, an ex parte decree was passed in favour of the respondent vide judgment and order dated 10.05.1988. The recall application filed by the appellants under Order IX Rule 13 C.P.C. for setting aside the ex-parte decree was rejected by the Additional Civil Judge on the ground that there was negligence and lack of due diligence on the part of the appellants in pursuing the matter and, therefore, they are not entitled to the relief of setting aside the ex parte decree. In terms of the valuation of the suit, an appeal from the said order should have been preferred before the High Court wherein the pecuniary jurisdiction to file the said appeal lay at the relevant time. Ignoring the said specific provision, an 7 appeal was preferred before the District Court. The aforesaid appeal filed was allowed and it was directed that the regular suit no. 508 of 1983 be proceeded with in accordance with law which was tried and decided. Since the aforesaid order was without jurisdiction as the District Court did not have pecuniary jurisdiction a writ petition was filed in the High Court by the respondent which was entertained. Since during the pendency of the said writ petition in the High Court the pecuniary jurisdiction of the District Court was increased from Rs. 20,000/- to Rs. 5 lacs, therefore, the High Court held that now an appeal would lie before the District Court and, therefore, the same could be filed with an application for condonation of delay before the District Judge.

12.The appellants moved the said application under Section 5 read with Section 14 of the Limitation Act. At the time of hearing of the said appeal, it was pointed out in the objection filed by the respondent against the application under Section 5 read with Section 14 of the Act at a very early stage that such an appeal is not maintainable before 8 the District Court as it lacked pecuniary jurisdiction to entertain the said appeal and, therefore, it would have been appropriate for the appellants to withdraw the appeal and file appropriate proceedings before the High Court. The same having not been done and having obtained an order in their favour which ex facie was illegal and without jurisdiction the appellants are not entitled to take the benefit of Section 5 read with Section 14 of the Limitation Act.

16.In view of the facts delineated herein, we are of the considered opinion that the conduct of the appellants throughout lack due diligence and they have been pursuing the entire matter negligently.

17.Therefore, we find no reason to interfere with the detailed and speaking order passed by the High Court. The appeal has no merit and is dismissed with no order as to costs.