Sec.5 of Limitation Act - Delay of 1265 days - Govt. land - exparte Injunction decree against Govt. - Lower court allowed the delay in filing set aside exparte decree - High court held that when property belongs to public , when an exparte decree is not on merits of the case and when the opening of litigation does not cause any prejudice to the plaintiff except a merit case on contest - when failure to condone the delay would cause irreparable prejudice - the court can condone the delay as it is within it's jurisdiction - Lower court rightly decided the issue , nothing to interfere in revisional jurisdiction - High court just modified by awarding costs of Rs.25,000/- payable from the pockets of concerned the then officers to the plaintiff =
whether the lower court properly condone the delay of 1265 days in filing set aside exparte decree ? =
While failure to condone the delay would cause irreparable
prejudice to the petitioners-defendants, and adversely affect larger public
interest, all that would be required of the respondent-plaintiff, if the order
of the Court below is upheld, is to contest the Suit on merits and nothing more.
The power to condone the delay is at the discretion of the Court and a Superior
Court would, ordinarily, not interfere with the exercise of such discretion save
in cases where the order suffers from a patent illegality. Once the court
accepts the explanation as sufficient, it is the result of positive exercise of
discretion and, normally, the superior court should not disturb such a finding,
much less in revisional jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or is arbitrary or perverse. =
Suits, involving valuable government property running into several crores of
rupees, it would be against larger public interest to permit an ex-parte decree
to attain finality. I consider it appropriate, instead, to modify the order of
the Court below to the limited extent that the impugned order, condoning the
delay in filing a petition to set aside the ex-parte decree, is upheld on
condition that exemplary costs of Rs.25,000/- shall be paid to the respondent-
plaintiff for any monetary loss he may have suffered in having to contest the
petition to condone the delay, and in filing a petition before this Court.
Needless to state that if the officials, who were responsible for the written
statement not being filed earlier and for the ex-parte decree being passed, are
still in service, the Government shall institute appropriate proceedings to
recover the costs of Rs.25,000/-from them. Except to the limited extent that
the petitioners-defendants shall now pay Rs.25,000/- as exemplary costs to the
respondent-plaintiff, C.R.P. No.924 of 2007 is dismissed.
2014 ( JANUARY - VOL -1 ) - JUDIS.NIC.IN / JUDIS _ ANDHRA / FILE NAME = 10707
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION No.924 OF 2007 and batch
03-01-2014
Chilkuri Narsimha and others. ....Petitioners
The District Collector, Ranga Reddy District and another..... Respondents
Counsel for the petitioner: Sri K.Ramakrishna Reddy, Learned Senior Counsel
appearing for Sri B. Mahender Reddy
Counsel for respondents1 and 2: Govt. Pleader for Arbitration
Counsel for respondent No.3: Sri B. Venkat Rama Rao
<GIST:
>HEAD NOTE:
?Citations:
1) (1997) 7 SCC 556
2) (2011) 4 SCC 363
3) (2008) 17 SCC 448
4) AIR 1962 SC 361
5) IlR 13 Madras 269
6) (2012) 5 SCC 157
7) (2013) 4 SCC 52
8) (2013) 4 SCC 57
9) (1981) 1 SCC 495
10) (2000) 9 SCC 94
11) AIR 1987 SC 1353
12) (1998) 7 SCC 123
13) (2010) 5 SCC 459
14) (2002) 3 SCC 195
15) (2010) 6 SCC 786
16) AIR 1969 SC 575
17) AIR 1972 SC 749
18) (2012) 12 SCC 693
19) (1996) 10 SCC 634
20) AIR 1988 SC 897
21) (2010) 5 SCC 203
22) (2003) 11 SCC 727
23). AIR 2001 SC 2497
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION Nos.924, 925 OF 2007, 2954 OF 2009, 1595 & 1597 OF 2012
COMMON ORDER:
While CRP No.924 of 2007 is filed under Section 115 CPC, all the other
C.R.Ps have been filed invoking the jurisdiction of this Court under Article 227
of the Constitution of India. This Court, by its order dated 21.03.2007,
directed C.R.P.No.924 of 2007 be posted along with C.R.P.No.925 of 2007.
Subsequently, by order in C.R.P.No.1595 of 2012 dated 27.06.2013, this Court
directed C.R.P.No.1595 of 2012 to be posted along with C.R.P.No.924 of 2007,
C.R.P.No.2954 of 2009 and C.R.P.No.1597 of 2012 and, accordingly, all these
C.R.Ps. were listed together and are now being disposed of by this common order.
Parties shall, hereinafter, be referred to as they are arrayed in proceedings
before the Junior Civil Judge, Medchal in the Suits and in the I.As.
Facts, to the extent necessary for the disposal of these CRPs, are that
Sri C.Narasimha filed O.S.No.302 of 2002 on the file of the Junior Civil Judge,
Medchal seeking perpetual injunction restraining the Collector, Ranga Reddy
District and the Mandal Revenue Officer, Quthbullapur Mandal, from interfering
with the suit land admeasuring Ac.2.00 in Survey No.25/2 situated at Pet
Basheerbad Village, Quthbullapur Mandal, Ranga Reddy District. The plea of Sri
C. Narasimha, that he had submitted an application to the Mandal Revenue Officer
for issuance of a patta certificate, is an admission on his part that the suit
schedule property, in O.S.No.302 of 2002, is government land. The Junior Civil
Judge, Medchal, by order in I.A.No.874 of 2002 in O.S.No.302 of 2002 dated
13.11.2002, directed status quo to be maintained. The defendants were set ex
parte on 28.03.2003, and an ex parte decree was passed on 02.05.2003. The
Collector, Ranga Reddy District, and the Mandal Revenue Officer, Quthbullapur
Mandal, filed I.A.No.2426 of 2006 in O.S.No.302 of 2002 to condone the delay of
1265 days in filing the petition to set aside the ex parte decree dated
02.05.2003. The said I.A. was allowed by order dated 30.11.2006 and the delay
in filing the petition to set aside the ex parte decree was condoned. They
filed I.A.No.2529 of 2006 in O.S.No.302 of 2002 requesting the Court below to
set aside the ex parte decree passed on 02.05.2003.
In his order, in I.A.No.2529 of 2006 in O.S.No.302 of 2002 dated 30.11.2006, the
Junior Civil Judge, Medchal, held that I.A.No.2426 of 2006 was allowed, and the
delay was condoned; and, as the defendants in the Suit had already filed a
written statement along with the petition to set aside the ex parte decree and
had stated that they were having a good defence, they would be put to
irreparable loss and injury if they were not permitted to contest the matter.
I.A.No.2529 of 2006 was also allowed.
Aggrieved by the order of the Junior Civil Judge, Medchal, in I.A.No.2426 of
2006 in O.S.No.302 of 2002 dated 30.11.2006 condoning the delay of 1265 days,
Sri C.Narasimha filed C.R.P.No.924 of 2007.
Likewise, against the order passed
by the Junior Civil Judge, Medchal in I.A.No.2529 of 2006 in O.S.No.302 of 2002
dated 30.11.2006 setting aside the ex parte decree, Sri C.Narasimha filed
C.R.P.No.925 of 2007.
This Court, by order in CRPMP No.1227 of 2007 in
C.R.P.No.924 of 2007 dated 21.03.2007, granted interim stay. As an interim
order had already been passed in CRPMP No.1227 of 2007 this Court, by order
dated 21.03.2007, dismissed CRPMP No.1228 of 2007 in C.R.P.No.925 of 2007.
While matters stood thus, St.Anne's Educational Society (hereinafter called the
'Society') requested the Government, by their letter dated 17.09.2005, for
allotment of land.
The Collector, Ranga Reddy District informed the Society, by
his proceedings dated 18.01.2006, that they could purchase the land at
government price.
The Society claims that an extent of 20 acres of government
land, situated in Survey Nos.23 and 25/02 of Pet-Basheerbad village, was
delivered to them by way of a panchanama on 15.09.2006, after they had deposited
Rs.30,00,000/- (Rupees Thirty lakhs) towards the price of the land, and they are
in possession of the entire extent of land ever since.
Sri C.Narasimha filed O.S.No.618 of 2006 before the Junior Civil Judge, Medchal
seeking perpetual injunction restraining the Society from interfering with his
peaceful possession and enjoyment of the suit schedule property.
He filed
I.A.No.2073 of 2006 in O.S.No.618 of 2006 seeking temporary injunction against
the Society. The ad-interim injunction, granted by order in I.A.No.2073 of 2006
in O.S.No.618 of 2006 dated 12.10.2006, was made absolute on 08.04.2008.
Aggrieved thereby, the Society filed C.M.A.No.122 of 2008 before the VI
Additional Senior Civil Judge (Fast Track Court), at Medchal. The Learned
Additional Senior Civil Judge, by his order in C.M.A.No.122 of 2008 dated
23.06.2009, set aside the order of the Junior Civil Judge, Medchal in
I.A.No.2073 of 2006 in O.S.No.618 of 2006 dated 08.04.2008. Aggrieved thereby
Sri C.Narasimha filed C.R.P.No.2954 of 2009 and this Court, by its order dated
06.07.2009, directed status quo, as on that date, to be maintained.
The Society filed an I.A, in O.S.No.302 of 2002, on 23.10.2009 seeking that they
be impleaded as the third defendant. On the ground that no orders were being
passed therein, and contending that failure of the Court below to take up the
said I.A. for enquiry, was illegal the Society filed C.R.P.No.1595 of 2012
before this Court. The Society also filed C.R.P.No.1597 of 2012 before this
Court contending that, though no interim order of stay was subsisting in
O.S.No.618 of 2006, the trial Court was not taking up the Suit for trial on the
ground that O.S.No.302 of 2002, in which the subject was one and the same, was
stayed by the High Court.
In his order in I.A.No.2426 of 2006 in O.S.No.302 of 2002 dated 30.11.2006, the
Learned Junior Civil Judge, Medchal noted the contents of the petition, filed in
support of the I.A, that the applicants had received summons and had filed a
memo of appearance through their counsel on 05.12.2002; thereafter due to heavy
work of assembly and panchayat elections, and urgent meetings with the
Collector, para-wise remarks could not be furnished to their counsel within
time; the case was posted to 28.03.2003; due to non filing of the written
statement, the defendants were set ex-parte on 28.03.2003; the Court had passed
an ex-parte decree on 02.05.2003; non-filing of the written statement was
neither willful nor wanton, but was for the reasons mentioned in the
application; if the ex-parte decree was not set aside, the applicants would be
put to irreparable loss and injury; under the strength of the ex-parte decree
the respondent-plaintiff was preventing the Society from occupying the suit
land; the Government had allotted the suit land to the Society on payment of
market value; the written statement was being filed along with the petition to
condone the delay; and it was just and necessary that the Court should set aside
the ex-parte decree after condoning the delay.
In the counter affidavit filed thereto, by the respondent-plaintiff, the locus
standi of the Mandal Revenue Officer, to file the application to condone the
delay, was put in issue on the ground that he was not the MRO on the date when
the ex-parte decree was passed. The applicants' explanation of the delay was
denied, and it was stated that the applicants did not furnish reasons for the
inordinate delay of 1265 days in filing the petition after passing the decree;
they should have furnished reasons for the day to day delay in filing the
application; the applicants had no right to allot the suit schedule property to
the Society on 23.08.2006 as they were aware that the respondent-plaintiff was
in possession of the suit schedule property since his forefathers; and they were
aware that the Court had passed a decree in his favour.
The Court below accepted the version of the applicants-defendants of the reasons
for not filing the application within time.
While noting that the day to day
delay, in filing the petition, was not explained, the Court below observed that,
if the petition was not allowed, the Government would suffer irreparable loss
and injury.
On the locus standi of the MRO to file the application, the Court
below held that O.S. No.302 of 2002 was filed against the State of Andhra
Pradesh represented by the District Collector and the MRO; the Suit was not
filed against them in their personal capacity; they were merely representatives
of the State of Andhra Pradesh; government officials are regularly transferred;
the MRO, who held office on the date the defendants were set ex-parte, was
transferred from Quthbullapur to some other place; the present MRO had the power
to represent the state government as the Suit was filed against the MRO,
Quthbullapur and not against any individual MRO, much less the MRO on the date
when the defendants were set ex-parte; and, while the respondent-plaintiff had
not mentioned that he had a good case on merits, the petitioners-defendants had
stated that they had a good defence and had filed a written statement along with
the petition. The Court below, on being satisfied that the reasons shown by the
petitioners-defendants constituted "sufficient cause", observed that, if an
opportunity was not given to them, they would be put to irreparable loss and
injury; and the case had to be decided on merits after giving an opportunity to
the other side.
Sri K.Ramakrishna Reddy, Learned Senior Counsel appearing on behalf of the
revision petitioner (Sri C.Narasimha), would submit that the law of limitation
may harshly affect a particular party but it has to be applied with all its
rigour when the statute so prescribes, and courts have no power to extend the
period of limitation on equitable grounds
(P.K. Ramachandran v. State of Kerala1);
concepts such as "liberal approach", "justice oriented approach",
"substantial justice" cannot be employed to jettison the substantial law of
limitation, especially in cases where the court concludes that there is no
justification for the delay
(Lanka Venkateswarlu v. State of A.P.2);
whilst considering applications for condonation of delay, under Section 5 of the
Limitation Act, Courts do not enjoy unlimited and unbridled discretionary
powers; all discretionary powers, especially judicial powers, have to be
exercised within reasonable bounds, known to law; discretion has to be exercised
in a systematic manner informed by reason; whims or fancies, prejudices or
predilections cannot and should not form the basis of exercising discretionary
powers (Lanka Venkateswarlu2); and courts cannot enquire into belated and stale
claims on the ground of equity as delay defeats equity, and Courts help those
who are vigilant and "do not slumber over their rights"
(Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project3).
According to the Learned Senior Counsel,
two important considerations must be
borne in mind while construing Section 5 of the Limitation Act.
The first is
that the expiration of the period of limitation gives rise to a right in favour
of the decree-holder to treat the decree as binding between the parties, and the
other consideration is that, if sufficient cause for excusing the delay is
shown, discretion is given to the court to condone delay
(Ramlal v. Rewa Coalfields Ltd4; Krishna v. Chathappan5; Maniben Devraj Shah v. Municipal
Corpn. of Brihan Mumbai6);
merely because the respondent is the State, delay
cannot and should not be mechanically considered, and in the absence of
"sufficient cause" delay should not be condoned
(Amalendu Kumar Bera v. State of W.B.7; Union of India v. Nripen Sarma8);
while the court can take note of the
fact that sufficient time is taken in the decision-making process, no premium
can be given for total lethargy or utter negligence on the part of officers of
the State, and the applications filed by them for condonation of delay cannot be
allowed as a matter of course by accepting the plea that dismissal of the matter
on the ground of bar of limitation will cause injury to the public interest
(Maniben Devraj Shah6); and, while the State may be entitled to a certain
latitude, the law of limitation is the same for the citizen and for government
authorities. (Pundlik Jalam Patil3).
It is necessary, at the outset, to bear in mind that the explanation required to
be furnished is mainly for the delay from the date when the ex-parte decree was
passed till the time stipulated under the Limitation Act, for filing the
application to set aside the ex-parte decree, expires. The "sufficient cause",
which a party must establish, is that it was not possible to file the
application because of some event or circumstance arising before limitation
expired. No event or circumstance arising after the expiry of limitation can
constitute sufficient cause.
(Ajit Singh Thakur Singh v. State of Gujarat9; Pundlik Jalam Patil3).
In the present case the Court below was satisfied that
this delay was sufficiently explained.
It is no doubt true that inordinate delay in filing applications, under Section
5 of the Limitation Act, should not be readily condoned, even if the delay is
occasioned by the State.
However, the expression "sufficient cause", used in
Section 5 of the Limitation Act, 1963, is elastic enough to enable the courts to
apply the law in a meaningful manner which serves the ends of justice.
No hard-
and-fast rule has been or can be laid down for deciding applications for
condonation of delay.
The power to condone the delay, in approaching the court,
has been conferred upon Courts to enable them to do substantial justice to
parties by disposing of matters on merits.
The expression "sufficient cause",
employed by the legislature in the Limitation Act, is adequately elastic to
enable the courts to apply the law in a meaningful manner which subserves the
ends of justice - that being the life-purpose for the existence of the
institution of courts.
A liberal approach is adopted on principle as it is realised that
(1) ordinarily a litigant does not stand to benefit by lodging an
appeal late;
(2) refusing to condone delay can result in a meritorious matter
being thrown out at the very threshold and cause of justice being defeated.
As against this when delay is condoned the highest that can happen is that a cause
would be decided on merits after hearing the parties;
(3) 'Every day's delay
must be explained' does not mean that a pedantic approach should be made. Why
not every hour's delay, every second's delay? The doctrine must be applied in a
rational common sense pragmatic manner;
(4) when substantial justice and
technical considerations are pitted against each other, cause of substantial
justice deserves to be preferred for the other side cannot claim to have a
vested right in injustice being done because of a non-deliberate delay;
(5) there is no presumption that delay is occasioned deliberately, or on account of
culpable negligence, or on account of malafides. A litigant does not stand to
benefit by resorting to delay. In fact he runs a serious risk; and
(6) it must be grasped that the judiciary is respected not on account of its power to
legalise injustice on technical grounds but because it is capable of removing
injustice and is expected to do so.
(State of Bihar v. Kameshwar Prasad Singh10; Collector, Land Acquisition v. Katiji11).
The primary function of a court is to
adjudicate the dispute between the parties and to advance substantial justice.
The time- limit fixed for approaching the court in different situations is not
because, on the expiry of such time, a bad cause would transform into a good
cause.
(N.Balakrishnan v. M.Krishnamurthy12; Oriental Aroma Chemical Industries
Ltd. v. Gujarat Industrial Development Corpn.13); Ram Nath Sao v.Gobardhan
Sao14).
Justice can be done only when the matter is fought on merits and in
accordance with law, rather than to dispose it off on technicalities and that
too at the threshold.
(Improvement Trust v. Ujagar Singh15).
A court knows that refusal to condone delay would result in foreclosing a suitor
from putting forth his cause. There is no presumption that delay in approaching
the court is always deliberate. The words "sufficient cause", under Section 5 of
the Limitation Act, should receive a liberal construction so as to advance
substantial justice,
(Shakuntala Devi Jain v. Kuntal Kumari16; State of West
Bengal v. Administrator, Howrah Municipality17; N. Balakrishnan12; Ram Nath
Sao14),
so that the substantive rights of the parties are not defeated only on
the ground of delay.
(B. Madhuri Goud v. B. Damodar Reddy18).
Unless mala fides
are writ large on the conduct of the party, generally as a normal rule, delay
should be condoned. In the legal arena, an attempt should always be made to
allow the matter to be contested on merits rather than to throw it out on
technicalities. (Improvement Trust15).
One cannot also ignore the very manner in which the government functions, and
the indifference exhibited by officials in diligently prosecuting court cases,
which are the main reasons for such delays. When the delay is occasioned at the
behest of the Government, it would be very difficult to explain the day-to-day
delay. The transaction of the business of the Government is done leisurely by
officers who have no or evince no personal interest at different levels. No one
takes personal responsibility in processing matters expeditiously. As a fact, at
several stages, they take their own time to reach a decision. It is true that
Section 5 of the Limitation Act envisages explanation of the delay to the
satisfaction of the court, and makes no distinction between the State and the
citizen. Nonetheless adoption of strict standard of proof leads to grave
miscarriage of public justice. It would result in public mischief by skilful
management of a deliberate delay in the process of filing the application. The
approach of the Court should be pragmatic and not pedantic.
(Special Tehsildar, Land Acquisition v. K.V. Ayisumma19).
It is common knowledge that, on account
of the impersonal machinery and the inherited bureaucratic methodology imbued
with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the
part of the State is less difficult to understand though more difficult to
approve, but the State represents the collective cause of the community. It is
axiomatic that decisions are taken by officers/agencies proverbially at a slow
pace. The encumbered process of pushing files from table to table, and keeping
it on the table for considerable time causing delay - intentional or otherwise -
is routine. Considerable delay of procedural red tape in the process of their
making decision is a common feature. A certain amount of latitude is not
impermissible, as no person is individually affected but what, in the ultimate
analysis, suffers is public interest. The court should decide the matters on
merits unless the case is hopelessly without merit.
(Kameshwar Prasad Singh10; Katiji11).
The decisions of the Government are collective and institutional decisions and
do not share the characteristics of decisions of private individuals. A
"bureaucratic or democratic organ" "hesitates and debates, consults and
considers, speaks through paper, moves horizontally and vertically till at last
it gravitates towards a conclusion, unmindful of time and impersonally". While
the law of limitation is the same for a private citizen as for government
authorities, it would be unrealistic to exclude from the considerations that go
into the judicial verdict, factors which are peculiar to and characteristic of
the functioning of the Government. A certain amount of latitude is, therefore,
not impermissible and the Government given 'a little play at the joints'.
Implicit in the very nature of Government functioning is procedural delay
incidental to the decision making process.
(G.Ramegowda, Major v. The Special Land Acquisition Officer, Bangalore20).
Government could and ought to have moved
with greater diligence and dispatch consistent with the urgency of the
situation. Even if the conduct of the government is perilously close to such
inaction as might, perhaps, have justified rejection of its prayer for
condonation, in the interest of keeping the stream of justice pure and clean the
decree should not be permitted to assume finality without an examination of
their merits. (G.Ramegowda, Major20).
At this point of time, when more than a decade has elapsed since the
petitioners-defendants were set ex-parte, it may well-nigh be impossible for
this Court to now ascertain whether those government officials, who held office
then, had colluded with the respondent-plaintiff in not contesting the suit on
its merits. The fact however remains that, even according to the respondent-
plaintiff, the suit schedule property is government land of an extent of
Acs.2.00 gts; and the Suit in O.S. No.302 of 2002, seeking permanent injunction,
was decreed without any contest from the defendants. While adjudicating
disputes, Civil Courts should bear in mind that suits against the government,
though similar to suits against private individuals, differ significantly in
some aspects. The first difference is in regard to the presumption available in
favour of the government. All lands which are not the property of any person or
which are not vested in a local authority, belong to the government. The second
difference is in regard to the period for which title and/or possession have to
be established by the person suing. Establishing title/possession for a period
exceeding twelve years may be adequate to establish title in a suit against any
individual. On the other hand, title/possession for a period exceeding thirty
years will have to be established to succeed in a Suit against the government.
Any loss of government property is ultimately the loss to the community. Courts
owe a duty to be vigilant to ensure that public property is not converted into
private property by unscrupulous elements.
(R.Hanumaiah v. State of Karnataka21).
While the merits of the judgment and decree is, ordinarily, not in issue in an
application filed to condone the delay, courts must bear in mind that, even in
cases where the defendants remain ex-parte and do not contest the Suit on
merits, it is duty bound to consider, on the pleadings and the evidence placed
before it, whether the relief sought for by the plaintiff should be granted.
Many Civil Courts deal with Suits, for injunction against the government, in a
casual manner ignoring or overlooking the special features relating to
government properties. Instances of such suits against government being
routinely decreed, either ex parte or for want of proper contest, merely acting
upon the oral assertions of plaintiffs or stray revenue entries are common.
Whether the government contests the suit or not, the plaintiff should establish
adverse possession for a period of more than thirty years, before a suit against
the government is decreed. Incidental to that question, the court should also
find out whether the plaintiff is recorded to be the holder or occupant of the
property, in the revenue records or municipal records, for more than thirty
years, and what is the nature of possession claimed by the plaintiff if he is in
possession - authorized or unauthorized; permissive; casual and occasional;
furtive and clandestine; open, continuous and hostile; deemed or implied. In
such Suits courts cannot, ignoring the presumptions available in favour of the
government, grant injunctive decrees against the government relying upon one of
the principles underlying pleadings that plaint averments which are not denied
or traversed are deemed to have been accepted or admitted. (R.Hanumaiah21).
In the present case, the judgment in O.S. No.302 of 2002 dated 02.05.2003 reads
as under:-
"Affidavit of PW.1 filed. Exs.A1 to A4 marked. Perused the plaint averments,
affidavit of PW.1 and Exs.A1 to A4. the suit is decreed as prayed for."
Ex.A1 is the site plan showing open land in Survey No.25/2 which the plaintiff
Sri C. Narasimha claimed was in his possession. Ex.A2 is a land revenue receipt.
Ex.A3 is the memo dated 26.10.2002 whereby the Deputy Mandal Revenue Officer,
Quthbullapur Mandal informed Sri C. Narasimha that the certified copies of the
pahanis, in Survey No.25/2 of Pet-Basheerabad Village, could not be issued as
the land was classified as Government land. Ex.A4 are certain photographs filed
by Sri C. Narasimha in support of his claim to be cultivating the subject land.
If ex-parte decrees, as the one in O.S. No.302 of 2002 dated 02.05.2003, are
permitted to attain finality, without a contest on merits, larger public
interest would alone suffer.
The subject property is government land of
Acs.2.00 gts, and did not belong either to the Collector, Ranga Reddy District
or the Mandal Revenue Officer, Quthbullapur who failed to contest the Suit and
permitted an exparte decree to be passed on 02.05.2003. Larger public interest,
of protecting public property, cannot be permitted to suffer for their willful
or negligent acts in failing to contest the Suit in O.S. No.302 of 2002.
Valuable government land cannot be permitted to be bartered away by officials
who are indifferent to their obligations of discharging public duties
efficiently.
As noted hereinabove, the respondent-plaintiff had the benefit of an interim
order of "status-quo", passed in I.A. No.874 of 2002 in O.S.No.302 of 2002 dated
13.11.2002, during the pendency of O.S. No.302 of 2002. All that would happen
if the order of the Court below, in setting aside the ex-parte decree, is upheld
is that O.S. No.302 of 2002 would now be adjudicated on its merits. The
respondent-plaintiff would also not suffer prejudice thereby as, even on the ex-
parte decree in O.S. No.302 of 2002 being set aside, the order of "status-quo"
passed by the Court below on 13.11.2002 would continue to remain operative till
it is either varied, modified or vacated or O.S. No.302 of 2002 is finally
adjudicated.
While failure to condone the delay would cause irreparable
prejudice to the petitioners-defendants, and adversely affect larger public
interest, all that would be required of the respondent-plaintiff, if the order
of the Court below is upheld, is to contest the Suit on merits and nothing more.
The power to condone the delay is at the discretion of the Court and a Superior
Court would, ordinarily, not interfere with the exercise of such discretion save
in cases where the order suffers from a patent illegality. Once the court
accepts the explanation as sufficient, it is the result of positive exercise of
discretion and, normally, the superior court should not disturb such a finding,
much less in revisional jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or is arbitrary or perverse.
(N. Balakrishnan12;
G.Ramegowda, Major20; Bhagmal v. M.P.Coop. Marketing & Consumer Federation
Ltd.22).
The power to condone the delay rests with the court in which the
application was filed beyond time and, ordinarily, the superior court may not
interfere with such discretion even if some error is to be found in the
discretion so exercised by the Court. (Pundlik Jalam Patil3).
All that has
happened, on the delay being condoned by the Court below, is that an ex-parte
decree has been set aside. The respondent-plaintiff would still have an
opportunity to contest O.S. No.302 of 2002 on merits, and establish his case
before the Court below. I do not consider it appropriate, therefore, to
exercise discretion under Section 115 CPC to interfere.
Even otherwise, in every case of delay, there can be some lapse on the part of
the litigant concerned. That alone is not enough to turn down his plea and to
shut the door against him. If the explanation does not smack of malafides, or is
not put forth as part of a dilatory strategy, the court must show utmost
consideration. But when there is reasonable ground to think that the delay was
occasioned by the party deliberately to gain time, then the court should lean
against acceptance of the explanation. While condoning the delay, the court
should not forget the opposite party altogether. It must be borne in mind that
he is a loser and he too would have incurred litigation expenses. It would be a
salutary guideline that when courts condone the delay, due to laches on the part
of the applicant, the opposite party should be compensated for his loss. (N.
Balakrishnan12). While deciding the application for setting aside the ex-parte
decree, the court should keep in mind the judgment impugned, the extent of the
property involved and the stake of the parties. The inconvenience caused to the
respondent, for the delay on account of the applicant being absent from the
court, can be compensated by awarding appropriate and exemplary costs.
(M.K.Prasad v. P.Arumugam23).
On being asked the value of the land, which is the subject matter of O.S. No.302
of 2002, Sri K. Ramakrishna Reddy, learned Senior Counsel appearing on behalf of
the respondent-plaintiff, would submit that it is worth several crores. In
Suits, involving valuable government property running into several crores of
rupees, it would be against larger public interest to permit an ex-parte decree
to attain finality. I consider it appropriate, instead, to modify the order of
the Court below to the limited extent that the impugned order, condoning the
delay in filing a petition to set aside the ex-parte decree, is upheld on
condition that exemplary costs of Rs.25,000/- shall be paid to the respondent-
plaintiff for any monetary loss he may have suffered in having to contest the
petition to condone the delay, and in filing a petition before this Court.
Needless to state that if the officials, who were responsible for the written
statement not being filed earlier and for the ex-parte decree being passed, are
still in service, the Government shall institute appropriate proceedings to
recover the costs of Rs.25,000/-from them. Except to the limited extent that
the petitioners-defendants shall now pay Rs.25,000/- as exemplary costs to the
respondent-plaintiff, C.R.P. No.924 of 2007 is dismissed.
As noted hereinabove Sri C. Narasimha filed I.A.No.2073 of 2006 in O.S.
No.618 of 2006 before the Junior Civil Judge, Medchal seeking temporary
injunction to restrain the Society from interfering with his peaceful possession
and enjoyment of the suit schedule property of agricultural land admeasuring
Ac.2.00 cts in Sy. No.25 situated at Petbasheerabad village, Quthbullapur
Mandal, Ranga Reddy District. In his affidavit, filed in support of I.A.
No.2073 of 2006, Sri C. Narasimha relied on the judgment and decree in O.S.
No.302 of 2002 dated 02.05.2003 whereby the State Government and its officials
were restrained from interfering with his possession over the suit schedule
property. He stated that the said judgment and decree was still in force
against the government and their officials; he was in possession of the suit
schedule property for more than forty years, and had perfected title by adverse
possession; when he came to know that the Society had engaged labour, and had
damaged the existing crop over the suit schedule property using JCB's and
tractors on 27.09.2006, he had confronted them; he was informed by the Society
that the suit schedule property and other lands had been allotted to them by the
government; and he had no other alternative except to file the Suit and the I.A.
against the Society.
A detailed counter was filed thereto by the Society. Thereafter the Junior
Civil Judge, Medchal, in his order in I.A. No.2073 of 2006 in O.S. No.618 of
2006 dated 08.04.2008, held that a decree remains in existence unless and until
it is set aside; the ex-parte decree passed against the District Collector, and
the Mandal Revenue Officer, was binding on them; any action taken by them
contrary to the decree, and without taking steps to set aside the decree, could
not be recognised by Courts; anarchy and chaos would prevail if parties violated
the decree passed by Courts on the premise that such decrees were ex-parte; the
government had acted arbitrarily in delivering possession of the schedule land
to the Society during the subsistence of the decree in O.S. No.302 of 2002 dated
02.05.2003; and such possession by the Society could not be recognised as a
valid possession. The I.A. was, accordingly, allowed and the ad-interim
injunction, granted earlier on 12.10.2006, was made absolute on 08.04.2008.
Aggrieved thereby the Society filed C.M.A. No.122 of 2008 and the VI Additional
Senior Civil Judge, Fast Track Court, Medchal, in his order in C.M.A. No.122 of
2008 dated 23.06.2009, held that the subject property was government land; the
application of Sri C. Narasimha, for grant of occupancy certificate, was not
considered by the government; his possession over the suit schedule property was
not juridical; there was not even a scrap of paper to show his possession over
the suit schedule property; the Learned Junior Civil Judge had passed the order
of injunction on the basis of the ex parte judgment and decree in O.S. No.302 of
2002; the Society had placed adequate documentary evidence to establish its
possession over the suit schedule property; the Junior Civil Judge had
completely ignored the documentary evidence while granting injunction; while the
decree has legal value and is required to be respected, the circumstances in the
present case was different; the judgment and decree in O.S. No.302 of 2002 was
being used by Sri C.Narasimha, in the absence of any other documents, to show
his possession over the suit schedule property; none of the documents relied
upon by him proved or established his possession over the suit schedule property
except a three line finding in the judgment in O.S. No.302 of 2002; and merely
because the matter had not been contested by the opposite party, did not justify
a laconic judgment being passed.
The Appellate Court, while deprecating the method and procedure adopted by the
learned trial judge in passing the judgment and decree in O.S. No.302 of 2002,
observed that no value could be given to the said judgment; as the Learned
Junior Civil Judge, while passing the order in I.A. No.2073 of 2006 in O.S.
No.618 of 2006 dated 08.04.2008, had relied solely on the ex parte decree in
O.S. No.302 of 2002, it was not sufficient to establish that Sri C.Narasimha was
in possession of the property; from Exhibits B-1 to B-8, it was clear that the
society was not only in possession of the suit schedule property, but had
perfected title over it; the petitioner had miserably failed to prove his
possession over the suit schedule land; it was a misnomer, on the part of the
Court below, to take into consideration the laconic judgment passed by its
predecessor; the Civil Court has no power either to review the action of
government officials in dealing with government lands or to restrain them from
invoking their powers in dealing with such lands; and, as such, the order passed
by the Court below, in I.A. No.2073 of 2006 in O.S. No.618 of 2006 dated
08.04.2008, could not be sustained and was being set aside. C.M.A. No.122 of
2008 was allowed.
It is relevant to note the observations of the Learned Senior Civil Judge, in
C.M.A. No.122 of 2008 dated 23.06.2009, that:-
"It is to note that what all the findings and observations made by this Court
in this order are strictly restricted to this order only and no party shall take
advantage of those findings and observations in the impending trial".
The Learned Senior Civil Judge erred in holding that reliance should not
have been placed on the judgment and decree in O.S.No.302 of 2002 dated
02.05.2003. The judgment and decree passed by a civil court of competent
jurisdiction is binding inter-parties even if it be an ex parte decree. The
judgment and decree, be it elaborate or cryptic, binds the parties thereto
unless set aside in the appeal or in review or on an application being filed to
set aside the ex parte decree. While the manner in which the judgment and
decree in O.S. No.302 of 2002 was passed does leave much to be desired, the fact
remains that the Society was allotted land by the government when the decree in
O.S. No.302 of 2002 dated 02.05.2003 was in force. The Junior Civil Judge
cannot, therefore, be said to have acted without jurisdiction in granting an
order of injunction. As the decree in O.S. No.302 of 2002 was in force, the
Appellate Court erred in brushing aside the decree passed in O.S. No.302 of 2002
as being laconic and in faulting the trial Court in relying on the said decree
while passing an ad-interim order of injunction. The judgment and decree of a
competent civil court cannot be set at naught in collateral proceedings. C.M.A.
No.122 of 2008 was filed against the order of temporary injunction passed by the
Junior Civil Judge in I.A. No.2073 of 2006 in O.S. No.618 of 2006 dated
12.10.2006. While examining the legality of such an order, it was not open to
the Appellate Court in C.M.A. No.122 of 2006 to examine the validity or
otherwise of the judgment and decree in O.S. No.302 of 2002.
The order of the Appellate Court, in C.M.A. No.122 of 2008 dated 23.06.2009,
must be and is, accordingly, set aside. Ordinarily, on the order of the
Appellate Court being set aside, the order of injunction passed by the Junior
Civil Judge in I.A. No.2073 of 2006 in O.S. No.618 of 2006 dated 12.10.2006
should have been restored. The fact, however, remains that the order of
injunction passed by the Junior Civil Judge is based solely on the ex-parte
decree in O.S. No.302 of 2002 dated 02.05.2003, which has since been set aside
by the Junior Civil Judge, Medchal in I.A. No.2529 of 2006 in O.S. No.302 of
2002 dated 30.11.2006. It would be wholly inappropriate for this Court,
therefore, to affirm the order passed by the Junior Civil Judge in I.A. No.2073
of 2006 in O.S. No.618 of 2006 dated 08.04.2008. Ends of justice would be met
if, instead, both the orders, in I.A. No.2073 of 2006 in O.S. No.618 of 2006
dated 08.04.2008 and the order in C.M.A. No.122 of 2008 dated 23.06.2009, are
set aside and I.A. No.2073 of 2006 is restored to file. The Learned Junior
Civil Judge, Medchal shall pass orders afresh in I.A. No.2073 of 2006 on its
merits bearing in mind that the earlier ex-parte decree passed in O.S. No.302 of
2002 has since been set aside, and the revision preferred thereagainst, in
C.R.No.924 of 2007, has also been dismissed. C.R.P.No.2954 of 2009 is disposed
of accordingly.
It is made clear that the order now passed by this Court shall not preclude
either the government and its officials or the Society from seeking to have the
order passed, in I.A.No.874 of 2002 in O.S.No.302 of 2002 dated 13.11.2002,
modified, varied or vacated. Any interlocutory application, which the parties
herein may file either in O.S. No.302 of 2002 or in O.S. No.618 of 2006, shall
be considered by the Learned Junior Civil Judge on its merits without being
influenced by any observations made in this order. As the order under revision
(whereby the ex-parte decree in O.S. No.302 of 2002 was set aside) is merely a
consequence of the order passed by the Court below, in I.A. No.2426 of 2006 in
O.S. No.302 of 2002 dated 30.11.2006 condoning the delay in filing the petition
to set aside the ex-parte decree, C.R.P. No.925 of 2007 is also dismissed.
As O.S.No.302 of 2002 has now been restored to file, the application filed by
the Society, to be impleaded as the 3rd defendant in O.S.No.302 of 2002, shall
now be considered by the Court below on its merits. No orders need, therefore,
be passed in C.R.P. No.1595 of 2012. Likewise, no orders need also be passed in
C.R.P. No.1597 of 2012 as both O.S. Nos.302 of 2002 and 618 of 2006 shall now be
taken up for hearing by the Court below. C.R.P. Nos.1595 and 1597 of 2012 are,
accordingly, closed.
As O.S. No.302 of 2002 is pending adjudication for more than a decade, and
O.S.No.618 of 2006 for more than seven years, it is but appropriate that the
Court below should dispose of both O.S.No.302 of 2002 and O.S.No.618 of 2006
with utmost expedition if need be on a day to day hearing; and, in any event,
not later than six months from the date of receipt of a copy of this order.
Subject to the modifications hereinabove mentioned, both CRP Nos.924 and 925 of
2007 are dismissed. CRP No.2954 of 2009 is disposed of, and CRP Nos.1595 and
1597 of 2012 are closed. Miscellaneous petitions therein, shall also stand
closed.
_____________________________
(RAMESH RANGANATHAN, J)
Date: 03.01.2014
whether the lower court properly condone the delay of 1265 days in filing set aside exparte decree ? =
While failure to condone the delay would cause irreparable
prejudice to the petitioners-defendants, and adversely affect larger public
interest, all that would be required of the respondent-plaintiff, if the order
of the Court below is upheld, is to contest the Suit on merits and nothing more.
The power to condone the delay is at the discretion of the Court and a Superior
Court would, ordinarily, not interfere with the exercise of such discretion save
in cases where the order suffers from a patent illegality. Once the court
accepts the explanation as sufficient, it is the result of positive exercise of
discretion and, normally, the superior court should not disturb such a finding,
much less in revisional jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or is arbitrary or perverse. =
Suits, involving valuable government property running into several crores of
rupees, it would be against larger public interest to permit an ex-parte decree
to attain finality. I consider it appropriate, instead, to modify the order of
the Court below to the limited extent that the impugned order, condoning the
delay in filing a petition to set aside the ex-parte decree, is upheld on
condition that exemplary costs of Rs.25,000/- shall be paid to the respondent-
plaintiff for any monetary loss he may have suffered in having to contest the
petition to condone the delay, and in filing a petition before this Court.
Needless to state that if the officials, who were responsible for the written
statement not being filed earlier and for the ex-parte decree being passed, are
still in service, the Government shall institute appropriate proceedings to
recover the costs of Rs.25,000/-from them. Except to the limited extent that
the petitioners-defendants shall now pay Rs.25,000/- as exemplary costs to the
respondent-plaintiff, C.R.P. No.924 of 2007 is dismissed.
2014 ( JANUARY - VOL -1 ) - JUDIS.NIC.IN / JUDIS _ ANDHRA / FILE NAME = 10707
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION No.924 OF 2007 and batch
03-01-2014
Chilkuri Narsimha and others. ....Petitioners
The District Collector, Ranga Reddy District and another..... Respondents
Counsel for the petitioner: Sri K.Ramakrishna Reddy, Learned Senior Counsel
appearing for Sri B. Mahender Reddy
Counsel for respondents1 and 2: Govt. Pleader for Arbitration
Counsel for respondent No.3: Sri B. Venkat Rama Rao
<GIST:
>HEAD NOTE:
?Citations:
1) (1997) 7 SCC 556
2) (2011) 4 SCC 363
3) (2008) 17 SCC 448
4) AIR 1962 SC 361
5) IlR 13 Madras 269
6) (2012) 5 SCC 157
7) (2013) 4 SCC 52
8) (2013) 4 SCC 57
9) (1981) 1 SCC 495
10) (2000) 9 SCC 94
11) AIR 1987 SC 1353
12) (1998) 7 SCC 123
13) (2010) 5 SCC 459
14) (2002) 3 SCC 195
15) (2010) 6 SCC 786
16) AIR 1969 SC 575
17) AIR 1972 SC 749
18) (2012) 12 SCC 693
19) (1996) 10 SCC 634
20) AIR 1988 SC 897
21) (2010) 5 SCC 203
22) (2003) 11 SCC 727
23). AIR 2001 SC 2497
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION Nos.924, 925 OF 2007, 2954 OF 2009, 1595 & 1597 OF 2012
COMMON ORDER:
While CRP No.924 of 2007 is filed under Section 115 CPC, all the other
C.R.Ps have been filed invoking the jurisdiction of this Court under Article 227
of the Constitution of India. This Court, by its order dated 21.03.2007,
directed C.R.P.No.924 of 2007 be posted along with C.R.P.No.925 of 2007.
Subsequently, by order in C.R.P.No.1595 of 2012 dated 27.06.2013, this Court
directed C.R.P.No.1595 of 2012 to be posted along with C.R.P.No.924 of 2007,
C.R.P.No.2954 of 2009 and C.R.P.No.1597 of 2012 and, accordingly, all these
C.R.Ps. were listed together and are now being disposed of by this common order.
Parties shall, hereinafter, be referred to as they are arrayed in proceedings
before the Junior Civil Judge, Medchal in the Suits and in the I.As.
Facts, to the extent necessary for the disposal of these CRPs, are that
Sri C.Narasimha filed O.S.No.302 of 2002 on the file of the Junior Civil Judge,
Medchal seeking perpetual injunction restraining the Collector, Ranga Reddy
District and the Mandal Revenue Officer, Quthbullapur Mandal, from interfering
with the suit land admeasuring Ac.2.00 in Survey No.25/2 situated at Pet
Basheerbad Village, Quthbullapur Mandal, Ranga Reddy District. The plea of Sri
C. Narasimha, that he had submitted an application to the Mandal Revenue Officer
for issuance of a patta certificate, is an admission on his part that the suit
schedule property, in O.S.No.302 of 2002, is government land. The Junior Civil
Judge, Medchal, by order in I.A.No.874 of 2002 in O.S.No.302 of 2002 dated
13.11.2002, directed status quo to be maintained. The defendants were set ex
parte on 28.03.2003, and an ex parte decree was passed on 02.05.2003. The
Collector, Ranga Reddy District, and the Mandal Revenue Officer, Quthbullapur
Mandal, filed I.A.No.2426 of 2006 in O.S.No.302 of 2002 to condone the delay of
1265 days in filing the petition to set aside the ex parte decree dated
02.05.2003. The said I.A. was allowed by order dated 30.11.2006 and the delay
in filing the petition to set aside the ex parte decree was condoned. They
filed I.A.No.2529 of 2006 in O.S.No.302 of 2002 requesting the Court below to
set aside the ex parte decree passed on 02.05.2003.
In his order, in I.A.No.2529 of 2006 in O.S.No.302 of 2002 dated 30.11.2006, the
Junior Civil Judge, Medchal, held that I.A.No.2426 of 2006 was allowed, and the
delay was condoned; and, as the defendants in the Suit had already filed a
written statement along with the petition to set aside the ex parte decree and
had stated that they were having a good defence, they would be put to
irreparable loss and injury if they were not permitted to contest the matter.
I.A.No.2529 of 2006 was also allowed.
Aggrieved by the order of the Junior Civil Judge, Medchal, in I.A.No.2426 of
2006 in O.S.No.302 of 2002 dated 30.11.2006 condoning the delay of 1265 days,
Sri C.Narasimha filed C.R.P.No.924 of 2007.
Likewise, against the order passed
by the Junior Civil Judge, Medchal in I.A.No.2529 of 2006 in O.S.No.302 of 2002
dated 30.11.2006 setting aside the ex parte decree, Sri C.Narasimha filed
C.R.P.No.925 of 2007.
This Court, by order in CRPMP No.1227 of 2007 in
C.R.P.No.924 of 2007 dated 21.03.2007, granted interim stay. As an interim
order had already been passed in CRPMP No.1227 of 2007 this Court, by order
dated 21.03.2007, dismissed CRPMP No.1228 of 2007 in C.R.P.No.925 of 2007.
While matters stood thus, St.Anne's Educational Society (hereinafter called the
'Society') requested the Government, by their letter dated 17.09.2005, for
allotment of land.
The Collector, Ranga Reddy District informed the Society, by
his proceedings dated 18.01.2006, that they could purchase the land at
government price.
The Society claims that an extent of 20 acres of government
land, situated in Survey Nos.23 and 25/02 of Pet-Basheerbad village, was
delivered to them by way of a panchanama on 15.09.2006, after they had deposited
Rs.30,00,000/- (Rupees Thirty lakhs) towards the price of the land, and they are
in possession of the entire extent of land ever since.
Sri C.Narasimha filed O.S.No.618 of 2006 before the Junior Civil Judge, Medchal
seeking perpetual injunction restraining the Society from interfering with his
peaceful possession and enjoyment of the suit schedule property.
He filed
I.A.No.2073 of 2006 in O.S.No.618 of 2006 seeking temporary injunction against
the Society. The ad-interim injunction, granted by order in I.A.No.2073 of 2006
in O.S.No.618 of 2006 dated 12.10.2006, was made absolute on 08.04.2008.
Aggrieved thereby, the Society filed C.M.A.No.122 of 2008 before the VI
Additional Senior Civil Judge (Fast Track Court), at Medchal. The Learned
Additional Senior Civil Judge, by his order in C.M.A.No.122 of 2008 dated
23.06.2009, set aside the order of the Junior Civil Judge, Medchal in
I.A.No.2073 of 2006 in O.S.No.618 of 2006 dated 08.04.2008. Aggrieved thereby
Sri C.Narasimha filed C.R.P.No.2954 of 2009 and this Court, by its order dated
06.07.2009, directed status quo, as on that date, to be maintained.
The Society filed an I.A, in O.S.No.302 of 2002, on 23.10.2009 seeking that they
be impleaded as the third defendant. On the ground that no orders were being
passed therein, and contending that failure of the Court below to take up the
said I.A. for enquiry, was illegal the Society filed C.R.P.No.1595 of 2012
before this Court. The Society also filed C.R.P.No.1597 of 2012 before this
Court contending that, though no interim order of stay was subsisting in
O.S.No.618 of 2006, the trial Court was not taking up the Suit for trial on the
ground that O.S.No.302 of 2002, in which the subject was one and the same, was
stayed by the High Court.
In his order in I.A.No.2426 of 2006 in O.S.No.302 of 2002 dated 30.11.2006, the
Learned Junior Civil Judge, Medchal noted the contents of the petition, filed in
support of the I.A, that the applicants had received summons and had filed a
memo of appearance through their counsel on 05.12.2002; thereafter due to heavy
work of assembly and panchayat elections, and urgent meetings with the
Collector, para-wise remarks could not be furnished to their counsel within
time; the case was posted to 28.03.2003; due to non filing of the written
statement, the defendants were set ex-parte on 28.03.2003; the Court had passed
an ex-parte decree on 02.05.2003; non-filing of the written statement was
neither willful nor wanton, but was for the reasons mentioned in the
application; if the ex-parte decree was not set aside, the applicants would be
put to irreparable loss and injury; under the strength of the ex-parte decree
the respondent-plaintiff was preventing the Society from occupying the suit
land; the Government had allotted the suit land to the Society on payment of
market value; the written statement was being filed along with the petition to
condone the delay; and it was just and necessary that the Court should set aside
the ex-parte decree after condoning the delay.
In the counter affidavit filed thereto, by the respondent-plaintiff, the locus
standi of the Mandal Revenue Officer, to file the application to condone the
delay, was put in issue on the ground that he was not the MRO on the date when
the ex-parte decree was passed. The applicants' explanation of the delay was
denied, and it was stated that the applicants did not furnish reasons for the
inordinate delay of 1265 days in filing the petition after passing the decree;
they should have furnished reasons for the day to day delay in filing the
application; the applicants had no right to allot the suit schedule property to
the Society on 23.08.2006 as they were aware that the respondent-plaintiff was
in possession of the suit schedule property since his forefathers; and they were
aware that the Court had passed a decree in his favour.
The Court below accepted the version of the applicants-defendants of the reasons
for not filing the application within time.
While noting that the day to day
delay, in filing the petition, was not explained, the Court below observed that,
if the petition was not allowed, the Government would suffer irreparable loss
and injury.
On the locus standi of the MRO to file the application, the Court
below held that O.S. No.302 of 2002 was filed against the State of Andhra
Pradesh represented by the District Collector and the MRO; the Suit was not
filed against them in their personal capacity; they were merely representatives
of the State of Andhra Pradesh; government officials are regularly transferred;
the MRO, who held office on the date the defendants were set ex-parte, was
transferred from Quthbullapur to some other place; the present MRO had the power
to represent the state government as the Suit was filed against the MRO,
Quthbullapur and not against any individual MRO, much less the MRO on the date
when the defendants were set ex-parte; and, while the respondent-plaintiff had
not mentioned that he had a good case on merits, the petitioners-defendants had
stated that they had a good defence and had filed a written statement along with
the petition. The Court below, on being satisfied that the reasons shown by the
petitioners-defendants constituted "sufficient cause", observed that, if an
opportunity was not given to them, they would be put to irreparable loss and
injury; and the case had to be decided on merits after giving an opportunity to
the other side.
Sri K.Ramakrishna Reddy, Learned Senior Counsel appearing on behalf of the
revision petitioner (Sri C.Narasimha), would submit that the law of limitation
may harshly affect a particular party but it has to be applied with all its
rigour when the statute so prescribes, and courts have no power to extend the
period of limitation on equitable grounds
(P.K. Ramachandran v. State of Kerala1);
concepts such as "liberal approach", "justice oriented approach",
"substantial justice" cannot be employed to jettison the substantial law of
limitation, especially in cases where the court concludes that there is no
justification for the delay
(Lanka Venkateswarlu v. State of A.P.2);
whilst considering applications for condonation of delay, under Section 5 of the
Limitation Act, Courts do not enjoy unlimited and unbridled discretionary
powers; all discretionary powers, especially judicial powers, have to be
exercised within reasonable bounds, known to law; discretion has to be exercised
in a systematic manner informed by reason; whims or fancies, prejudices or
predilections cannot and should not form the basis of exercising discretionary
powers (Lanka Venkateswarlu2); and courts cannot enquire into belated and stale
claims on the ground of equity as delay defeats equity, and Courts help those
who are vigilant and "do not slumber over their rights"
(Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project3).
According to the Learned Senior Counsel,
two important considerations must be
borne in mind while construing Section 5 of the Limitation Act.
The first is
that the expiration of the period of limitation gives rise to a right in favour
of the decree-holder to treat the decree as binding between the parties, and the
other consideration is that, if sufficient cause for excusing the delay is
shown, discretion is given to the court to condone delay
(Ramlal v. Rewa Coalfields Ltd4; Krishna v. Chathappan5; Maniben Devraj Shah v. Municipal
Corpn. of Brihan Mumbai6);
merely because the respondent is the State, delay
cannot and should not be mechanically considered, and in the absence of
"sufficient cause" delay should not be condoned
(Amalendu Kumar Bera v. State of W.B.7; Union of India v. Nripen Sarma8);
while the court can take note of the
fact that sufficient time is taken in the decision-making process, no premium
can be given for total lethargy or utter negligence on the part of officers of
the State, and the applications filed by them for condonation of delay cannot be
allowed as a matter of course by accepting the plea that dismissal of the matter
on the ground of bar of limitation will cause injury to the public interest
(Maniben Devraj Shah6); and, while the State may be entitled to a certain
latitude, the law of limitation is the same for the citizen and for government
authorities. (Pundlik Jalam Patil3).
It is necessary, at the outset, to bear in mind that the explanation required to
be furnished is mainly for the delay from the date when the ex-parte decree was
passed till the time stipulated under the Limitation Act, for filing the
application to set aside the ex-parte decree, expires. The "sufficient cause",
which a party must establish, is that it was not possible to file the
application because of some event or circumstance arising before limitation
expired. No event or circumstance arising after the expiry of limitation can
constitute sufficient cause.
(Ajit Singh Thakur Singh v. State of Gujarat9; Pundlik Jalam Patil3).
In the present case the Court below was satisfied that
this delay was sufficiently explained.
It is no doubt true that inordinate delay in filing applications, under Section
5 of the Limitation Act, should not be readily condoned, even if the delay is
occasioned by the State.
However, the expression "sufficient cause", used in
Section 5 of the Limitation Act, 1963, is elastic enough to enable the courts to
apply the law in a meaningful manner which serves the ends of justice.
No hard-
and-fast rule has been or can be laid down for deciding applications for
condonation of delay.
The power to condone the delay, in approaching the court,
has been conferred upon Courts to enable them to do substantial justice to
parties by disposing of matters on merits.
The expression "sufficient cause",
employed by the legislature in the Limitation Act, is adequately elastic to
enable the courts to apply the law in a meaningful manner which subserves the
ends of justice - that being the life-purpose for the existence of the
institution of courts.
A liberal approach is adopted on principle as it is realised that
(1) ordinarily a litigant does not stand to benefit by lodging an
appeal late;
(2) refusing to condone delay can result in a meritorious matter
being thrown out at the very threshold and cause of justice being defeated.
As against this when delay is condoned the highest that can happen is that a cause
would be decided on merits after hearing the parties;
(3) 'Every day's delay
must be explained' does not mean that a pedantic approach should be made. Why
not every hour's delay, every second's delay? The doctrine must be applied in a
rational common sense pragmatic manner;
(4) when substantial justice and
technical considerations are pitted against each other, cause of substantial
justice deserves to be preferred for the other side cannot claim to have a
vested right in injustice being done because of a non-deliberate delay;
(5) there is no presumption that delay is occasioned deliberately, or on account of
culpable negligence, or on account of malafides. A litigant does not stand to
benefit by resorting to delay. In fact he runs a serious risk; and
(6) it must be grasped that the judiciary is respected not on account of its power to
legalise injustice on technical grounds but because it is capable of removing
injustice and is expected to do so.
(State of Bihar v. Kameshwar Prasad Singh10; Collector, Land Acquisition v. Katiji11).
The primary function of a court is to
adjudicate the dispute between the parties and to advance substantial justice.
The time- limit fixed for approaching the court in different situations is not
because, on the expiry of such time, a bad cause would transform into a good
cause.
(N.Balakrishnan v. M.Krishnamurthy12; Oriental Aroma Chemical Industries
Ltd. v. Gujarat Industrial Development Corpn.13); Ram Nath Sao v.Gobardhan
Sao14).
Justice can be done only when the matter is fought on merits and in
accordance with law, rather than to dispose it off on technicalities and that
too at the threshold.
(Improvement Trust v. Ujagar Singh15).
A court knows that refusal to condone delay would result in foreclosing a suitor
from putting forth his cause. There is no presumption that delay in approaching
the court is always deliberate. The words "sufficient cause", under Section 5 of
the Limitation Act, should receive a liberal construction so as to advance
substantial justice,
(Shakuntala Devi Jain v. Kuntal Kumari16; State of West
Bengal v. Administrator, Howrah Municipality17; N. Balakrishnan12; Ram Nath
Sao14),
so that the substantive rights of the parties are not defeated only on
the ground of delay.
(B. Madhuri Goud v. B. Damodar Reddy18).
Unless mala fides
are writ large on the conduct of the party, generally as a normal rule, delay
should be condoned. In the legal arena, an attempt should always be made to
allow the matter to be contested on merits rather than to throw it out on
technicalities. (Improvement Trust15).
One cannot also ignore the very manner in which the government functions, and
the indifference exhibited by officials in diligently prosecuting court cases,
which are the main reasons for such delays. When the delay is occasioned at the
behest of the Government, it would be very difficult to explain the day-to-day
delay. The transaction of the business of the Government is done leisurely by
officers who have no or evince no personal interest at different levels. No one
takes personal responsibility in processing matters expeditiously. As a fact, at
several stages, they take their own time to reach a decision. It is true that
Section 5 of the Limitation Act envisages explanation of the delay to the
satisfaction of the court, and makes no distinction between the State and the
citizen. Nonetheless adoption of strict standard of proof leads to grave
miscarriage of public justice. It would result in public mischief by skilful
management of a deliberate delay in the process of filing the application. The
approach of the Court should be pragmatic and not pedantic.
(Special Tehsildar, Land Acquisition v. K.V. Ayisumma19).
It is common knowledge that, on account
of the impersonal machinery and the inherited bureaucratic methodology imbued
with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the
part of the State is less difficult to understand though more difficult to
approve, but the State represents the collective cause of the community. It is
axiomatic that decisions are taken by officers/agencies proverbially at a slow
pace. The encumbered process of pushing files from table to table, and keeping
it on the table for considerable time causing delay - intentional or otherwise -
is routine. Considerable delay of procedural red tape in the process of their
making decision is a common feature. A certain amount of latitude is not
impermissible, as no person is individually affected but what, in the ultimate
analysis, suffers is public interest. The court should decide the matters on
merits unless the case is hopelessly without merit.
(Kameshwar Prasad Singh10; Katiji11).
The decisions of the Government are collective and institutional decisions and
do not share the characteristics of decisions of private individuals. A
"bureaucratic or democratic organ" "hesitates and debates, consults and
considers, speaks through paper, moves horizontally and vertically till at last
it gravitates towards a conclusion, unmindful of time and impersonally". While
the law of limitation is the same for a private citizen as for government
authorities, it would be unrealistic to exclude from the considerations that go
into the judicial verdict, factors which are peculiar to and characteristic of
the functioning of the Government. A certain amount of latitude is, therefore,
not impermissible and the Government given 'a little play at the joints'.
Implicit in the very nature of Government functioning is procedural delay
incidental to the decision making process.
(G.Ramegowda, Major v. The Special Land Acquisition Officer, Bangalore20).
Government could and ought to have moved
with greater diligence and dispatch consistent with the urgency of the
situation. Even if the conduct of the government is perilously close to such
inaction as might, perhaps, have justified rejection of its prayer for
condonation, in the interest of keeping the stream of justice pure and clean the
decree should not be permitted to assume finality without an examination of
their merits. (G.Ramegowda, Major20).
At this point of time, when more than a decade has elapsed since the
petitioners-defendants were set ex-parte, it may well-nigh be impossible for
this Court to now ascertain whether those government officials, who held office
then, had colluded with the respondent-plaintiff in not contesting the suit on
its merits. The fact however remains that, even according to the respondent-
plaintiff, the suit schedule property is government land of an extent of
Acs.2.00 gts; and the Suit in O.S. No.302 of 2002, seeking permanent injunction,
was decreed without any contest from the defendants. While adjudicating
disputes, Civil Courts should bear in mind that suits against the government,
though similar to suits against private individuals, differ significantly in
some aspects. The first difference is in regard to the presumption available in
favour of the government. All lands which are not the property of any person or
which are not vested in a local authority, belong to the government. The second
difference is in regard to the period for which title and/or possession have to
be established by the person suing. Establishing title/possession for a period
exceeding twelve years may be adequate to establish title in a suit against any
individual. On the other hand, title/possession for a period exceeding thirty
years will have to be established to succeed in a Suit against the government.
Any loss of government property is ultimately the loss to the community. Courts
owe a duty to be vigilant to ensure that public property is not converted into
private property by unscrupulous elements.
(R.Hanumaiah v. State of Karnataka21).
While the merits of the judgment and decree is, ordinarily, not in issue in an
application filed to condone the delay, courts must bear in mind that, even in
cases where the defendants remain ex-parte and do not contest the Suit on
merits, it is duty bound to consider, on the pleadings and the evidence placed
before it, whether the relief sought for by the plaintiff should be granted.
Many Civil Courts deal with Suits, for injunction against the government, in a
casual manner ignoring or overlooking the special features relating to
government properties. Instances of such suits against government being
routinely decreed, either ex parte or for want of proper contest, merely acting
upon the oral assertions of plaintiffs or stray revenue entries are common.
Whether the government contests the suit or not, the plaintiff should establish
adverse possession for a period of more than thirty years, before a suit against
the government is decreed. Incidental to that question, the court should also
find out whether the plaintiff is recorded to be the holder or occupant of the
property, in the revenue records or municipal records, for more than thirty
years, and what is the nature of possession claimed by the plaintiff if he is in
possession - authorized or unauthorized; permissive; casual and occasional;
furtive and clandestine; open, continuous and hostile; deemed or implied. In
such Suits courts cannot, ignoring the presumptions available in favour of the
government, grant injunctive decrees against the government relying upon one of
the principles underlying pleadings that plaint averments which are not denied
or traversed are deemed to have been accepted or admitted. (R.Hanumaiah21).
In the present case, the judgment in O.S. No.302 of 2002 dated 02.05.2003 reads
as under:-
"Affidavit of PW.1 filed. Exs.A1 to A4 marked. Perused the plaint averments,
affidavit of PW.1 and Exs.A1 to A4. the suit is decreed as prayed for."
Ex.A1 is the site plan showing open land in Survey No.25/2 which the plaintiff
Sri C. Narasimha claimed was in his possession. Ex.A2 is a land revenue receipt.
Ex.A3 is the memo dated 26.10.2002 whereby the Deputy Mandal Revenue Officer,
Quthbullapur Mandal informed Sri C. Narasimha that the certified copies of the
pahanis, in Survey No.25/2 of Pet-Basheerabad Village, could not be issued as
the land was classified as Government land. Ex.A4 are certain photographs filed
by Sri C. Narasimha in support of his claim to be cultivating the subject land.
If ex-parte decrees, as the one in O.S. No.302 of 2002 dated 02.05.2003, are
permitted to attain finality, without a contest on merits, larger public
interest would alone suffer.
The subject property is government land of
Acs.2.00 gts, and did not belong either to the Collector, Ranga Reddy District
or the Mandal Revenue Officer, Quthbullapur who failed to contest the Suit and
permitted an exparte decree to be passed on 02.05.2003. Larger public interest,
of protecting public property, cannot be permitted to suffer for their willful
or negligent acts in failing to contest the Suit in O.S. No.302 of 2002.
Valuable government land cannot be permitted to be bartered away by officials
who are indifferent to their obligations of discharging public duties
efficiently.
As noted hereinabove, the respondent-plaintiff had the benefit of an interim
order of "status-quo", passed in I.A. No.874 of 2002 in O.S.No.302 of 2002 dated
13.11.2002, during the pendency of O.S. No.302 of 2002. All that would happen
if the order of the Court below, in setting aside the ex-parte decree, is upheld
is that O.S. No.302 of 2002 would now be adjudicated on its merits. The
respondent-plaintiff would also not suffer prejudice thereby as, even on the ex-
parte decree in O.S. No.302 of 2002 being set aside, the order of "status-quo"
passed by the Court below on 13.11.2002 would continue to remain operative till
it is either varied, modified or vacated or O.S. No.302 of 2002 is finally
adjudicated.
While failure to condone the delay would cause irreparable
prejudice to the petitioners-defendants, and adversely affect larger public
interest, all that would be required of the respondent-plaintiff, if the order
of the Court below is upheld, is to contest the Suit on merits and nothing more.
The power to condone the delay is at the discretion of the Court and a Superior
Court would, ordinarily, not interfere with the exercise of such discretion save
in cases where the order suffers from a patent illegality. Once the court
accepts the explanation as sufficient, it is the result of positive exercise of
discretion and, normally, the superior court should not disturb such a finding,
much less in revisional jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or is arbitrary or perverse.
(N. Balakrishnan12;
G.Ramegowda, Major20; Bhagmal v. M.P.Coop. Marketing & Consumer Federation
Ltd.22).
The power to condone the delay rests with the court in which the
application was filed beyond time and, ordinarily, the superior court may not
interfere with such discretion even if some error is to be found in the
discretion so exercised by the Court. (Pundlik Jalam Patil3).
All that has
happened, on the delay being condoned by the Court below, is that an ex-parte
decree has been set aside. The respondent-plaintiff would still have an
opportunity to contest O.S. No.302 of 2002 on merits, and establish his case
before the Court below. I do not consider it appropriate, therefore, to
exercise discretion under Section 115 CPC to interfere.
Even otherwise, in every case of delay, there can be some lapse on the part of
the litigant concerned. That alone is not enough to turn down his plea and to
shut the door against him. If the explanation does not smack of malafides, or is
not put forth as part of a dilatory strategy, the court must show utmost
consideration. But when there is reasonable ground to think that the delay was
occasioned by the party deliberately to gain time, then the court should lean
against acceptance of the explanation. While condoning the delay, the court
should not forget the opposite party altogether. It must be borne in mind that
he is a loser and he too would have incurred litigation expenses. It would be a
salutary guideline that when courts condone the delay, due to laches on the part
of the applicant, the opposite party should be compensated for his loss. (N.
Balakrishnan12). While deciding the application for setting aside the ex-parte
decree, the court should keep in mind the judgment impugned, the extent of the
property involved and the stake of the parties. The inconvenience caused to the
respondent, for the delay on account of the applicant being absent from the
court, can be compensated by awarding appropriate and exemplary costs.
(M.K.Prasad v. P.Arumugam23).
On being asked the value of the land, which is the subject matter of O.S. No.302
of 2002, Sri K. Ramakrishna Reddy, learned Senior Counsel appearing on behalf of
the respondent-plaintiff, would submit that it is worth several crores. In
Suits, involving valuable government property running into several crores of
rupees, it would be against larger public interest to permit an ex-parte decree
to attain finality. I consider it appropriate, instead, to modify the order of
the Court below to the limited extent that the impugned order, condoning the
delay in filing a petition to set aside the ex-parte decree, is upheld on
condition that exemplary costs of Rs.25,000/- shall be paid to the respondent-
plaintiff for any monetary loss he may have suffered in having to contest the
petition to condone the delay, and in filing a petition before this Court.
Needless to state that if the officials, who were responsible for the written
statement not being filed earlier and for the ex-parte decree being passed, are
still in service, the Government shall institute appropriate proceedings to
recover the costs of Rs.25,000/-from them. Except to the limited extent that
the petitioners-defendants shall now pay Rs.25,000/- as exemplary costs to the
respondent-plaintiff, C.R.P. No.924 of 2007 is dismissed.
As noted hereinabove Sri C. Narasimha filed I.A.No.2073 of 2006 in O.S.
No.618 of 2006 before the Junior Civil Judge, Medchal seeking temporary
injunction to restrain the Society from interfering with his peaceful possession
and enjoyment of the suit schedule property of agricultural land admeasuring
Ac.2.00 cts in Sy. No.25 situated at Petbasheerabad village, Quthbullapur
Mandal, Ranga Reddy District. In his affidavit, filed in support of I.A.
No.2073 of 2006, Sri C. Narasimha relied on the judgment and decree in O.S.
No.302 of 2002 dated 02.05.2003 whereby the State Government and its officials
were restrained from interfering with his possession over the suit schedule
property. He stated that the said judgment and decree was still in force
against the government and their officials; he was in possession of the suit
schedule property for more than forty years, and had perfected title by adverse
possession; when he came to know that the Society had engaged labour, and had
damaged the existing crop over the suit schedule property using JCB's and
tractors on 27.09.2006, he had confronted them; he was informed by the Society
that the suit schedule property and other lands had been allotted to them by the
government; and he had no other alternative except to file the Suit and the I.A.
against the Society.
A detailed counter was filed thereto by the Society. Thereafter the Junior
Civil Judge, Medchal, in his order in I.A. No.2073 of 2006 in O.S. No.618 of
2006 dated 08.04.2008, held that a decree remains in existence unless and until
it is set aside; the ex-parte decree passed against the District Collector, and
the Mandal Revenue Officer, was binding on them; any action taken by them
contrary to the decree, and without taking steps to set aside the decree, could
not be recognised by Courts; anarchy and chaos would prevail if parties violated
the decree passed by Courts on the premise that such decrees were ex-parte; the
government had acted arbitrarily in delivering possession of the schedule land
to the Society during the subsistence of the decree in O.S. No.302 of 2002 dated
02.05.2003; and such possession by the Society could not be recognised as a
valid possession. The I.A. was, accordingly, allowed and the ad-interim
injunction, granted earlier on 12.10.2006, was made absolute on 08.04.2008.
Aggrieved thereby the Society filed C.M.A. No.122 of 2008 and the VI Additional
Senior Civil Judge, Fast Track Court, Medchal, in his order in C.M.A. No.122 of
2008 dated 23.06.2009, held that the subject property was government land; the
application of Sri C. Narasimha, for grant of occupancy certificate, was not
considered by the government; his possession over the suit schedule property was
not juridical; there was not even a scrap of paper to show his possession over
the suit schedule property; the Learned Junior Civil Judge had passed the order
of injunction on the basis of the ex parte judgment and decree in O.S. No.302 of
2002; the Society had placed adequate documentary evidence to establish its
possession over the suit schedule property; the Junior Civil Judge had
completely ignored the documentary evidence while granting injunction; while the
decree has legal value and is required to be respected, the circumstances in the
present case was different; the judgment and decree in O.S. No.302 of 2002 was
being used by Sri C.Narasimha, in the absence of any other documents, to show
his possession over the suit schedule property; none of the documents relied
upon by him proved or established his possession over the suit schedule property
except a three line finding in the judgment in O.S. No.302 of 2002; and merely
because the matter had not been contested by the opposite party, did not justify
a laconic judgment being passed.
The Appellate Court, while deprecating the method and procedure adopted by the
learned trial judge in passing the judgment and decree in O.S. No.302 of 2002,
observed that no value could be given to the said judgment; as the Learned
Junior Civil Judge, while passing the order in I.A. No.2073 of 2006 in O.S.
No.618 of 2006 dated 08.04.2008, had relied solely on the ex parte decree in
O.S. No.302 of 2002, it was not sufficient to establish that Sri C.Narasimha was
in possession of the property; from Exhibits B-1 to B-8, it was clear that the
society was not only in possession of the suit schedule property, but had
perfected title over it; the petitioner had miserably failed to prove his
possession over the suit schedule land; it was a misnomer, on the part of the
Court below, to take into consideration the laconic judgment passed by its
predecessor; the Civil Court has no power either to review the action of
government officials in dealing with government lands or to restrain them from
invoking their powers in dealing with such lands; and, as such, the order passed
by the Court below, in I.A. No.2073 of 2006 in O.S. No.618 of 2006 dated
08.04.2008, could not be sustained and was being set aside. C.M.A. No.122 of
2008 was allowed.
It is relevant to note the observations of the Learned Senior Civil Judge, in
C.M.A. No.122 of 2008 dated 23.06.2009, that:-
"It is to note that what all the findings and observations made by this Court
in this order are strictly restricted to this order only and no party shall take
advantage of those findings and observations in the impending trial".
The Learned Senior Civil Judge erred in holding that reliance should not
have been placed on the judgment and decree in O.S.No.302 of 2002 dated
02.05.2003. The judgment and decree passed by a civil court of competent
jurisdiction is binding inter-parties even if it be an ex parte decree. The
judgment and decree, be it elaborate or cryptic, binds the parties thereto
unless set aside in the appeal or in review or on an application being filed to
set aside the ex parte decree. While the manner in which the judgment and
decree in O.S. No.302 of 2002 was passed does leave much to be desired, the fact
remains that the Society was allotted land by the government when the decree in
O.S. No.302 of 2002 dated 02.05.2003 was in force. The Junior Civil Judge
cannot, therefore, be said to have acted without jurisdiction in granting an
order of injunction. As the decree in O.S. No.302 of 2002 was in force, the
Appellate Court erred in brushing aside the decree passed in O.S. No.302 of 2002
as being laconic and in faulting the trial Court in relying on the said decree
while passing an ad-interim order of injunction. The judgment and decree of a
competent civil court cannot be set at naught in collateral proceedings. C.M.A.
No.122 of 2008 was filed against the order of temporary injunction passed by the
Junior Civil Judge in I.A. No.2073 of 2006 in O.S. No.618 of 2006 dated
12.10.2006. While examining the legality of such an order, it was not open to
the Appellate Court in C.M.A. No.122 of 2006 to examine the validity or
otherwise of the judgment and decree in O.S. No.302 of 2002.
The order of the Appellate Court, in C.M.A. No.122 of 2008 dated 23.06.2009,
must be and is, accordingly, set aside. Ordinarily, on the order of the
Appellate Court being set aside, the order of injunction passed by the Junior
Civil Judge in I.A. No.2073 of 2006 in O.S. No.618 of 2006 dated 12.10.2006
should have been restored. The fact, however, remains that the order of
injunction passed by the Junior Civil Judge is based solely on the ex-parte
decree in O.S. No.302 of 2002 dated 02.05.2003, which has since been set aside
by the Junior Civil Judge, Medchal in I.A. No.2529 of 2006 in O.S. No.302 of
2002 dated 30.11.2006. It would be wholly inappropriate for this Court,
therefore, to affirm the order passed by the Junior Civil Judge in I.A. No.2073
of 2006 in O.S. No.618 of 2006 dated 08.04.2008. Ends of justice would be met
if, instead, both the orders, in I.A. No.2073 of 2006 in O.S. No.618 of 2006
dated 08.04.2008 and the order in C.M.A. No.122 of 2008 dated 23.06.2009, are
set aside and I.A. No.2073 of 2006 is restored to file. The Learned Junior
Civil Judge, Medchal shall pass orders afresh in I.A. No.2073 of 2006 on its
merits bearing in mind that the earlier ex-parte decree passed in O.S. No.302 of
2002 has since been set aside, and the revision preferred thereagainst, in
C.R.No.924 of 2007, has also been dismissed. C.R.P.No.2954 of 2009 is disposed
of accordingly.
It is made clear that the order now passed by this Court shall not preclude
either the government and its officials or the Society from seeking to have the
order passed, in I.A.No.874 of 2002 in O.S.No.302 of 2002 dated 13.11.2002,
modified, varied or vacated. Any interlocutory application, which the parties
herein may file either in O.S. No.302 of 2002 or in O.S. No.618 of 2006, shall
be considered by the Learned Junior Civil Judge on its merits without being
influenced by any observations made in this order. As the order under revision
(whereby the ex-parte decree in O.S. No.302 of 2002 was set aside) is merely a
consequence of the order passed by the Court below, in I.A. No.2426 of 2006 in
O.S. No.302 of 2002 dated 30.11.2006 condoning the delay in filing the petition
to set aside the ex-parte decree, C.R.P. No.925 of 2007 is also dismissed.
As O.S.No.302 of 2002 has now been restored to file, the application filed by
the Society, to be impleaded as the 3rd defendant in O.S.No.302 of 2002, shall
now be considered by the Court below on its merits. No orders need, therefore,
be passed in C.R.P. No.1595 of 2012. Likewise, no orders need also be passed in
C.R.P. No.1597 of 2012 as both O.S. Nos.302 of 2002 and 618 of 2006 shall now be
taken up for hearing by the Court below. C.R.P. Nos.1595 and 1597 of 2012 are,
accordingly, closed.
As O.S. No.302 of 2002 is pending adjudication for more than a decade, and
O.S.No.618 of 2006 for more than seven years, it is but appropriate that the
Court below should dispose of both O.S.No.302 of 2002 and O.S.No.618 of 2006
with utmost expedition if need be on a day to day hearing; and, in any event,
not later than six months from the date of receipt of a copy of this order.
Subject to the modifications hereinabove mentioned, both CRP Nos.924 and 925 of
2007 are dismissed. CRP No.2954 of 2009 is disposed of, and CRP Nos.1595 and
1597 of 2012 are closed. Miscellaneous petitions therein, shall also stand
closed.
_____________________________
(RAMESH RANGANATHAN, J)
Date: 03.01.2014
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.