2012(6) ALL MR 377
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. SAVANT, J.
Hemant Ganeshprasad Jaiswal Vs. Murlidhar Govind Khade
Writ Petition No. 3773 of 2012
18th September, 2012
Petitioner Counsel: Ms. CHANDANA SALGAOCAR
Respondent Counsel: Mr. PRASHANT PANDIT, CHANDRAKANT PAWAR
(A) Civil P.C. (1908), O.9 R.13 - Ex parte decree - Decree set aside as defendant banker was out of town due to work - Letter from bank states that defendant was working in branch of said bank in same town during that particular period - Order of Trial Court setting aside ex parte decree based on acceptance of defendant's statement is not sustainable. 2010(6) ALL MR 480 (S.C.) Ref. to. (Para 8)
(B) Civil P.C. (1908), O.9 R.13 - Ex parte decree - Setting aside of - Defendant did not appear in suit from stage of temporary injunction application till decree was passed - Defence taken that suit was transferred to another court and Advocate did not inform defendant about passing of decree - Defendant ought to have made enquiries with Advocate - Status of suit is also put up on website of District Court - Contention of defendant liable to be rejected - Order of setting aside of ex parte decree liable to be set aside. (Para 10)
2. The writ jurisdiction of this Court under Article 227 of Constitution of India is invoked against the order dated 29th December, 2011 passed by the learned 5th Jt. Civil Judge, Senior Division, Nashik, by which order the application filed by the respondent under Order 9 Rule 13 of the Code of Civil Procedure came to be allowed and resultantly the decree passed in Spl. Civil Suit No.595 of 2007 dated 10th February, 2009 came to be set aside.
The suit in question being Special Civil Suit No.595 of 2007 was filed for specific performance of the Agreement for Sale dated 6.2.2006. The said Agreement for Sale was in respect of the land admeasuring 41 R. situated at Mouja - Gangapur, District Nashik consideration for which was Rs.5,71,000/- out of which the petitioner herein who was the original plaintiff claimed to have paid Rs.3,71,000/- and the balance consideration of Rs.2 lacs only remained to be paid. The Respondent herein is the defendant in the said Suit. Though called upon by the plaintiff to execute the Sale Deed in his favour, the defendant declined to do so and was, according to the plaintiff, negotiating with other parties which constrained the plaintiff to file the said Special Civil Suit No.595 of 2007. It appears that in the said Suit, the plaintiff had also filed an application for temporary injunction. The said application for temporary injunction was allowed by the Trial Court by order dated 7.04.2008. The said order was not challenged by the defendant and therefore operated pending the said Suit. The defendant had filed his written statement. However, after the said order dated 7.04.2008 the roznama discloses that he did not further participate in the proceedings. Issues were framed in the said Suit on 2.5.2008. The Suit proceeded Ex-parte against defendant and was ultimately decreed on 10.02.2009 and the decree was to the effect that the plaintiff was directed to deposit the balance amount and a direction was issued that the defendant should apply to the Government for seeking permission for executing the Sale Deed in favour of the plaintiff within 1 month of the decree.
4. It appears that after the said decree came to be passed on 10.02.2009, the defendant proposed to file an application under Order 9 Rule 13 of the Civil Procedure Code for setting aside the said decree which, according to him, was passed ex-parte. Since there was delay of about 295 days in filing the said application, the defendant filed application for condonation of delay. The said application for condonation of delay came to be allowed and resultantly the delay of 295 days in filing the application under Order 9 Rule 13 came to be condoned. In so far as the application under Order 9 Rule 13 i.e. Civil Misc. Application No.65 of 2011 is concerned, the said application was founded on the fact that his Advocate did not inform him of the passing of the decree. The defendant led evidence in support of the said application. In the context of the present petition, it would be relevant to note that in the affidavit in Examination-in-Chief filed by the defendant, he has stated that he was serving with the Syndicate Bank from 23.03.2005. He was promoted as J.M.G.S. Officer and he was transferred to the Karad Branch in District Sangli. He has further stated that after his promotion, on account of the duties relating to his office, he was out of Nashik between the period January 2009 to December 2009. He has further stated in the said affidavit of Examination in Chief that when he received the notice of the Darkhast being Special Darkhast No.6 of 2009, it is at that stage he got knowledge of the decree passed in the said Special Civil Suit No.595 of 2007. The defendant was cross-examined on behalf of the plaintiff. In the cross-examination, he had admitted that though he has stated that for the period of January 2009 to December 2009, he was working at Shakha Vin, Taluka Karad, District Sangli, he has no documentary evidence in support of the said statement and that he has also not produced any documentary evidence in that respect. The said Miscellaneous Civil Application No.65 of 2001 was heard by the learned 5th Jt. Civil Judge, Senior Division, Nashik and by the impugned order dated 29th December, 2011, the same has been allowed. The principal reason which has weighed with the learned Judge was the fact that the defendant was out of Nashik from January, 2009 to December, 2009 which statement also appears in the cross-examination of the defendant, which aspect has been adverted to by the learned Judge in paragraph 13 and 14 of the impugned order. The second ground which has weighed with the learned Judge was the fact that the Suit in question was transferred from the Court of the Civil Judge, Senior Division, Nashik to the Court of 3rd Jt. Civil Judge, Senior Division, Nashik of which transfer the defendant did not have notice. The learned Judge, therefore, reached a conclusion that the defendant has, from his evidence, proved and satisfied that he was prevented from appearing when the Suit was fixed for hearing on the ground that he had no knowledge of transfer of his Suit from one Court to another and, therefore, he had shown sufficient cause for consideration of his application under Order 9 Rule 13 of the CPC. The learned Judge, therefore, set aside the decree and directed the Suit to proceed from the stage of cross-examination of the plaintiff by the defendant. As indicated above, it is the said order which is impugned in the present petition.
5. At this stage, it is required to be noted that the petitioner had applied to the Syndicate Bank under the Right to Information Act by his letter dated 13.02.2012, seeking details about the transfer of the defendant out of Nashik. Pursuant to the said letter of the petitioner, the Bank by its letter dated 6th March, 2012, through its Public Information Officer and Deputy General Manager, Vinayak N. Shanbhag, has informed the petitioner that for the period from 1.11.2008 till 31.12.2009, the defendant i.e. Shri Murlidhar Govind Khade was working in its Nashik Branch. It has further been stated that during the said period, he was not transferred to any other branch and that he has retired from service from the Nashik Branch.
6. Heard the learned Counsel for the parties. The principal contention of the learned Counsel appearing for the petitioner is that the case of the defendant was founded on the fact that he was out of Nashik during the relevant period which case is now belied by the letter dated 6th March, 2012 of the Syndicate Bank. The order of the Trial Court allowing the said application which is principally founded on the acceptance of the said fact therefore cannot be sustained. Learned Counsel would contend that there is no merit in the second ground urged by the defendant namely that he was not aware of the decree passed in view of the fact that the Suit in question was transferred from one Court to another of which he had received no notice and neither did his lawyer inform him. Learned counsel would contend that the impugned order being passed on account of suppression or misrepresentation of facts on the part of the defendant, the same is required to be interfered with by this Court exercising writ jurisdiction under Article 227 of the Constitution of India. Learned counsel would contend that it was necessary for the defendant whilst seeking the relief sought by way of the application under Order 9 Rule 13 to approach the Court with true and correct facts. Having not done so, no indulgence could be shown to the defendant. Learned counsel, to buttress her submission as regards the suppression of facts by the defendant, sought to rely upon the judgment of the Apex Court reported in (2010) 8 SCC 685 : [2010(6) ALL MR 480 (S.C.)] in the matter of Balwant singh (Dead) vs. Jagdish Singh and Ors. The Apex Court, in the said judgment, has culled out the principles which are required to be applied whilst considering an application for condonation of delay. The Apex Court has held that the conduct of the parties as well as whether the reasons are bonafide are the aspects which the Court has to take into consideration. If the party has approached with unclean hands, no discretion can be exercised in favour of such a party. The learned counsel appearing for the petitioner would also seek to buttress the aspect of suppression of facts and misrepresentation from the documents which have been furnished to her as well as which have been annexed to the affidavit-in reply filed on behalf of the defendant who is the respondent in the present petition.
7. Per contra, it is submitted by Mr. Pandit, appearing on behalf of the respondent - defendant that though the respondent was posted at Nashik, he was being sent on deputation to other centers from time to time. Learned counsel for the respondent sought to explain the said letter dated 6th March, 2012 wherein the Bank has informed the petitioner that for the period from 1.11.2008 till 31.12.2009, the defendant was in Nashik. Learned counsel would contend that since the defendant was out of Nashik, he was not aware of the progress of the Suit more so, in view of the fact that the Suit was also transferred from one Court to other. Learned counsel would contend that since the Trial Court deemed it fit to exercise discretion in favour of the defendant, this Court, in its writ jurisdiction under Article 227 of the Constitution of India, may not interfere with the said discretion, as ultimately according to the learned counsel, what has been done by the impugned order is directing a de novo trial Court of the Suit.
8. Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. In the instant case, as mentioned hereinabove, the conduct of the defendant is sought to be demonstrated, by the learned counsel for the petitioner from the roznama as well as the chronology of the dates and events which have been prepared by her. However, before coming to the said aspect, it would be significant to note that almost for about 7 dates prior to the passing of the decree on 10.02.2009, none had appeared for the defendant. It is also required to be borne in mind that the defendant had filed his written statement and was represented by Advocate. Roznama of the said case does not disclose that the Advocate had informed the Court about no instructions from the defendant. No such contention has also been urged by the learned counsel appearing for the respondent in the present petition. The relevant period therefore is the period prior to 10.02.2009 when the decree was passed. It is in the said context that the case of the defendant is required to be considered. Though it is the case of the defendant, as spelt out in the affidavit of examination-in-chief, that between the period of January, 2009 to December, 2009, he was working at the Karad branch, no material was placed in support of the said case which fact has been admitted by the defendant even in his cross-examination. The said fact has to be considered along-with the letter dated 6.03.2012 which was received by the petitioner from the Syndicate Bank. As indicated above, it has been categorically stated that for the period from 1.11.2008 till 31.12.2009 the defendant i.e. Murlidhar Govind Khade was working in its Nashik Branch. The said fact stated in the said letter puts the final nail in the coffin of the case of the defendant as it were, that he was transferred and therefore out of Nashik during the relevant period i.e. on the day when the decree was passed, as well as prior thereto, and subsequent thereto. The documents which have been annexed to the affidavit-in reply filed by the defendant in the instant petition are for the period of 2005, 2006 to 2008 which are not at all relevant for considering the case of the defendant that he was out of Nashik at the relevant time. This Court to satisfy itself and to give the defendant an opportunity had adjourned the hearing of the above petition, for about three weeks to facilitate the defendant to obtain the document/ documents for the relevant period. However, inspite of such opportunity, learned counsel for the defendant fairly stated that he is not in a position to produce any such document. The Trial Court, as can be seen, has, without considering the matter from the correct perspective, has by merely accepting the statement which is made in the examination-in chief and cross-examination of the defendant in support of which statement there was absolutely no material on record, recorded a finding that since the defendant was out of Nashik from January, 2009 to December, 2009, he could not participate in the proceedings and therefore, the decree was passed ex-parte. Since the impugned order is principally founded on the said ground, in my view, the impugned order stands vitiated on the said count. In this context, it would be apposite to consider the judgment of the Apex Court in Balwant Singh Case, [2010(6) ALL MR 480 (S.C.)] (Supra). In the said case also, as can be seen, the Apex Court found that since the application for condonation of delay was suffering from suppression of facts, no indulgence would be shown to the appellants who were guilty of the said suppression of facts. The relevant paragraphs 9, 10, 27 and 39 of the said judgment are reproduced herein :
"9. It is clear from a bare reading of the above paragraph that the applicants were totally callous about pursuing their appeal. They have acted irresponsibly and even with negligence. Besides this, they have not approached the Court with clean hands. The applicant, who seeks aid of the Court for exercising its discretionary power for condoning the delay, is expected to state correct facts and not state lies before the Court. Approaching the Court with unclean hands itself is a ground for rejection of such application.
10. In Para 2 of IA No.1 of 2010, it has been shown that all the legal representatives of the deceased are residents of 9050/5, Naya Bas, Ambala City, (Haryana) and that there are no other legal heirs of the deceased. However, in Para 4 of IA No. 2 of 2010, it has been stated that the LRs of the deceased were in service and were not aware of the pendency of the appeal, implying that they were living at different places and the letter of the lawyer was received at their residential address of Ambala. The stand taken in one application contradicts the stand taken in the other application. Furthermore, it is stated that they were not awar of the pendency of the appeal. This again does not apear to be correct inasmuch as one of the legal representatives of the deceased, namely, Har Inder Singh was examined in the trial court as AW4, who is the son of the deceased.
27. The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party.
39. On an analysis of the above principles, we now revert to the merits of the application in hand. As already noticed, except for a vague averment that the legal representatives were not aware of the pendency of the appeal before this Court, there is no other justifiable reason stated in the one page application. We have already held that the application does not contain correct and true facts. Thus, want of bona fides is imputable to the applicant. There is no reason or sufficient cause shown as to what steps were taken during this period and why immediate steps were not taken by the applicant, even after they admittedly came to know of the pendency of the appeal before this Court."
9. In the facts of the said case, the Apex Court reached a conclusion that the want of bona fides is imputable to the applicant in the said case and, therefore, discretion could not be exercised in favour of the applicants in the said case.
10. In the present case also, the respondent i.e. the defendant, can be said to have suppressed facts from the Trial Court or misrepresented the Trial Court in the process of seeking reliefs under Order 9 Rule 13 of the C.P.C. The said order, therefore, which is premised on the said suppression or misrepresentation of facts, is vitiated and has therefore to be interfered with by this Court in its writ jurisdiction.
Now coming to the ground that on account of the transfer of the Suit from the Court of learned Civil Judge, Senior Division, Nashik to the Court of 3rd Joint Civil Judge, Senior Division, Nashik, of which the defendant was not aware as he had no notice of the same or that his lawyer has not informed him of the same, in my view, the said ground is also not a bona fide ground. It is required to be noted that the temporary injunction application was allowed by the Trial Court on 7.04.2008. The roznama discloses that the defendant did not appear in the proceedings thereafter right till the decree was passed on 10.02.2009. It is required to be borne in mind that the defendant was represented by Advocate and therefore ought to have made enquiries with his Advocate. The defendant cannot contend that since the advocate did not inform him, he was not aware of the proceedings being transferred from one Court to the other and ultimately the decree being passed on 10th February, 2009. The fact that the status of the Suit is also put up on the website of the District Court cannot be lost sight of. The defendant claims to be computer savvy person as it is his case that on account of his training in computers that he was deputed from one branch to another. It was therefore for him to make the necessary enquiries, more so when he was a defendant in a Suit filed against him for specific performance. Having not done so, he has himself to blame and, therefore, cannot take advantage of the said fact by contending that the said Suit has proceeded ex-parte. In my view the Trial Court in allowing the application has over simplified the matter without adhering to the well settled principles viz. of the prejudice that would be caused to the other side, which is a relevant consideration. In the facts of the present case where the bona fides of the defendant are questionable in view of fact that he has suppressed facts and misrepresented the Trial Court, no indulgence can be shown to him. In the facts and circumstances of the case, the exercise of the writ jurisdiction is warranted. In that view of the matter, the impugned order dated 29th December, 2011 passed by the learned 5th Jt. Civil Judge, Senior Division, Nashik is required to be quashed and set aside and is accordingly quashed and set aside. The decree in question is maintained.