2016 (6) TMI 1414 - HC - Indian Laws

Maintainability of application - time limitation - Were the Courts below justified in dismissing the application filed under Order IX Rule 13 of Code of Civil Procedure on the ground of the delay of 431 days in filing the miscellaneous petition? - HELD THAT - Both the Courts below failed to notice that the suit filed is in respect of immovable property and the rights of the parties should not be deprived only on the ground of technicality. When substantial justice and technical considerations are pitted against each other only the substantial justice should prevail. Admittedly in the present case there is delay of 431 days in filing the miscellaneous petition and if the delay is condoned it will no way prejudice the rights of plaintiff-respondent by giving right to the appellant to put forth his case and the petition will be decided on merits. In the present case the appellant-defendant has explained the delay of 431 days in filing necessary application under Section 5 of Limitation Act stating that due to the ignorance of law and due to the fact that their advocate has been retired from the case without informing the stage of the suit and thereafter the trial Court proceeded to pass an ex-parte judgment and decree which clearly indicates in the judgment of the trial Court that the defendant was absent. The Courts below ought to have given an opportunity to the appellant-plaintiff to put forth his case by condoning the delay and decide the rights of the parties on merits. Mere dismissing the Misc. Petition on the ground of delay of 431 days would result in throwing out the appellant at the very threshold without considering the case on merits resulting in cause of justice being defeated - Admittedly in the present case the mistake committed by the counsel for the defendant the defendant should not suffer because of the default of his advocate. The Hon ble Supreme Court in the case of RAFIQ AND ANOTHER VERSUS MUNSHILAL AND ANOTHER 1981 (4) TMI 255 - SUPREME COURT while considering the delay in filing the application on account of the fault committed by the advocate on record has held that parties should not suffer. Admittedly in the present case the delay is 431 days and the rights of the parties in respect of immovable properties are involved and hence the rights of the parties cannot be defeated by way of technicality - Therefore the substantial question of law is answered in the negative holding that the Courts below were not justified in dismissing the Misc. Petition on the ground of delay - Application allowed.

Summary

Issues Involved:
1. Delay in filing the miscellaneous petition under Order IX Rule 13 read with Section 151 of C.P.C.
2. Failure of the defendant's counsel to inform about his retirement.
3. Rights of the parties in respect of immovable property.
4. Consideration of substantial justice versus technicalities.

Issue-wise Detailed Analysis:

1. Delay in filing the miscellaneous petition under Order IX Rule 13 read with Section 151 of C.P.C.:
The appellant-defendant filed a Misc. Case No. 5/2008 along with an application for condonation of delay to set aside the ex-parte judgment and decree dated 04.01.2007, which was dismissed by the trial court due to a delay of 431 days. The trial court and the lower appellate court both dismissed the petition primarily on the grounds of delay, without considering the merits of the case. The High Court emphasized that the delay should not prevent the case from being heard on its merits, especially when the delay was not due to the defendant's negligence but due to the advocate's failure to inform about his retirement.

2. Failure of the defendant's counsel to inform about his retirement:
The defendant's counsel retired without informing the defendant, which led to the defendant being unaware of the proceedings. The trial court proceeded ex-parte and passed a judgment without issuing a court notice to the defendant. The High Court noted that the defendant should not suffer due to the advocate's fault and referenced several Supreme Court judgments supporting this view, including TAHIL RAM ISSARDAS SADARANGANI AND OTHERS v. RAMCHAND ISSARDAS SADARANGANI AND ANOTHER and RAFIQ AND ANOTHER V. MUNSHILAL AND ANOTHER.

3. Rights of the parties in respect of immovable property:
The suit involved immovable property, and the High Court highlighted that the rights of the parties should not be deprived on technical grounds. The trial court had directed the defendant to remove concrete pillars and restrained them from trespassing or interfering with the property. The High Court stressed that substantial justice should prevail over technical considerations, and the case should be decided on its merits.

4. Consideration of substantial justice versus technicalities:
The High Court underscored that when substantial justice and technical considerations are pitted against each other, substantial justice should prevail. The court cited the Supreme Court's decision in N. BALAKRISHNAN V. M. KRISHNAMURTHY, which emphasized that delays should be condoned if they do not result from mala fides or dilatory strategies. The High Court concluded that the lower courts should have condoned the delay and allowed the case to be decided on its merits.

Conclusion:
The High Court allowed the regular second appeal, set aside the judgments of the lower courts, and condoned the delay of 431 days. The case O.S. No. 230/2006 was restored, and the matter was remanded to the trial court for fresh adjudication on merits. The appellant was directed to pay Rs. 15,000 to the respondent-plaintiff, and the trial court was instructed to proceed with the case in accordance with the law. The High Court emphasized that the rights of the parties should be adjudicated on merits rather than being dismissed on technical grounds.