BHAGMAL & ORSversusKUNWAR LAL & ORS

                       [2010] 8 S.C.R 1104


A                       BHAGMAL & ORS
                                 v.
                       KUNWAR LAL & ORS
                 (Civil Appeal No. 5875 of 2005)
                          JULY 27, 2010
B
    [V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
                                JJ.]

        Code of Civil Procedure, 1908 - Or. IX r. 13 - Setting
C aside ex-parte decree-Application under- Dismissed by trial
  court holding it to be time barred - Allowed by appellate court
  - However, set aside by High Court - On appeal, held:
  Application u/o. IX r. 13 was filed on 08.071988, within 30
  days from 22.06.1988 the date when appellants came to know
o about the decree, thus, was within time - Due to compromise
  between the parties, appellants did not attend the suit and
  were not aware about the proceedings at all - They clearly
  pleaded that they came to know about the decree when they
  were served with the execution notice, which was a valid
E explanation for delay - Thus, order of High Court is set aside
  and that of appellate court is restored - Delay/laches.

        In a suit for declaration of title, possession and
  permanent injunction in respect ot a house by
  respondents against the appellants, an ex parte decree
F was passed. The appellant came to know about the ex
  parte decree when the execution proceedings started.
  The appellants filed an application under Order IX r. 13
  CPC for setting aside the decree. It was submitted that
  since there was an understanding between the parties
G that respondent no. 1 would withdraw the suit, the
  appellants did not attend the further proceedings. The
  trial court dismissed the application as being time barred.
  The appellate court allowed the application. The High
  Court upheld the order of trial court and set aside that of
H                             1104
      BHAGMAL & ORS. v. KUNWAR LAL & ORS.                 1105


the appellate court. It held that the appellate court had         A
exceeded its jurisdiction in allowing the application
without condoning the delay. Hence the appeal.

     Allowing the appeal, the Court

     · HELD: 1.1 The appellate court was right in holding         8
 that due to the compromise effected, the appellants did
 not attend the suit and, therefore, were not knowing
 about the proceedings at all. The appellants were justified
 in not attending the court and that they did not even know
 about the decree having been passed and, therefore, the          C
 delay in presenting the application was also justified.
 [Paras 3 and 4] [1110-E-F; 1111-A-B]

       1.2 The High Court interfered with the well considered
  order of the appellate court solely on the ground that          o
  there was no application for condonation of delay made
  by the appellants before the trial court in support of their
  application u/o. IX r. 13 CPC. The High Court observed
  that the appellate Court had not recorded any finding on
  the question as to whether the filing of the application u/     E
  s. 5 of the Limitation Act was necessary or not and went
  on to decide the application on merits and, therefore, it
  had exceeded its jurisdiction; that the ex-parte decree
. was decided on 19.4.1985, the application ought to have
· been filed within 30 days from the date of passing of the
                                                                  F
  decree, while the application for setting aside the ex-parte
  decree was filed on 08.07 .1988 and no application for
  condonation of delay u/s. 5 of the Limitation Act was filed,
. therefore, in the absence of prayer for condonation of
·.delay, the appellate court could not have allowed the
  application u/o .. IX r. 13. The High Court was not justified   G
  in taking a hypertechnical view. [Paras 5, 6 and .7] [1111-
  E.H; 1112-C]

       1.3 It is quite clear from the trial court's order that the ·
 trial court entertained the application on merits. It referred H
    1106   SUPREME COURT REPORTS               [2010] 8 S.C.R.

A to the reply of the respondents to the effect that the
  application for setting aside the ex-parte decree was
  beyond the limitation. However, the view taken by the trial
  court was based more on the merits. In fact, it went on
  to record the finding that there was no compromise and
B the theory of compromise and delay on account of that
  was not acceptable. The trial court has more or the less
  based its findings regarding delay on the basis of the
  order sheets. That was not right as the order sheets
  nowhere bore the signatures of the parties. They were
c mechanically written mentioning "parties as before".
  Therefore, the trial court did not throw the application u/
  o. IX r. 13 merely on the basis of the fact that no
  application for condonation of delay was made. It went
  on to consider the delay aspect as well as the merits and
  even allowed the parties to lead evidence. The question
0
  of delay was completely interlinked with the merits of the
  matter. [Para 7] [1112-C-F]

       1.4 The appellants had clearly pleaded that they did
  not earlier come to the court on account of the fact that
E they did not know about the order passed by the court
  proceeding ex-parle and also the ex-parle decree which
  was passed; and that they came to know about the
  decree when they were served with the execution notice.
  This was nothing, but a justification made by the
F appellants for making the 0. IX r. 13 application at the time
  when it was actually made. This was also a valid
  explanation of the delay. The question of filing 0. IX r. 13
  application was rightly considered by the appellate court
  on merits and the appellate court was absolutely right in
G coming to the conclusion that appellants/defendants
  were fully justified in filing the application under 0. IX r.
  13 CPC at the time when they actually filed it and the delay
  in filing the application was also fully explained on
  account of the fact that they never knew about the decree
H
    BHAGMAL & ORS. v. KUNWAR LAL & ORS.                1107


and the orders starting the ex-parte proceedings against       A
them. If this was so, the Court had actually considered
the reasons for the delay also. The application u/o. IX r.
13 itself had all the ingredients of the application for
condonation of delay in making that application.
Procedure is after all handmaid of justice. Here was a         s
party which bona fide believed the assurance given in the
compromise panchnama that the respondent no. 1-
plaintiff would get his suit withdrawn or dismissed. The
said compromise panchnama was made before the
elders of the village. Writing was also effected, displaying   c
that compromise. The witnesses were also examined.
Under such circumstances, the non-attendance of the
appellants/defendants, which was proved in the further
proceedings, was quite justifiable. The appellants/
defendants, when ultimately came to know about the
                                                               0
decree, had moved the application within 30 days, that
was sufficient. [Para 7] [1112-F-H; 1113-A-E]

    '1.5 Article 123 of the Limitation Act cannot persuade
this Court to take the view that the limitation actually
started from the date of knowledge, as the appellants/         E
defendants had no notice of the decree or the
proceedings which the respondents had promised to
terminate. The limitation must be deemed to have started
from the date when the appellants/defendants came to
know about the decree on 22.6.1988. An application u/o.        F
IX r. 13 was filed within 30 days from that date and,
therefore, it is clear that it was within time. At any rate,
even if it held that the limitation started from the date of
decree, there was a satisfactory explanation of the delay
if any. Thus, the judgment .of the High Court is set aside     G
and that of the appellate court is restored. [Paras 8 and
9] [1113-F-H; 1114-A-E]
    Sneh Gupta vs. Devi Sarup and Ors. 2009 (6) SCC 194
- distinguished.
                                                               H
    1108     SUPREME COURT REPORTS                  (2010] 8 S CR.


A                         Case Law Reference:

         2009 (6) sec 194             Distinguished.       Para 8

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5875 of 2005.
8
         From the Judgment & Order dated 19.10.2001 of the High
    Court of Madhya Pradesh at Jabalpur in Civil Revision No. 136
    of 1997.

      June Chaudhary, Shakil Ahmed Syed, S.A. Saud, Prabhat
C K. Rai, Shuaibuddin for the Appellants.

        M.P. Acharya, Pradeep Acharya, Kuldeep Acharya,
    Dharmendra Kumar Sinha, D.M. Nargolkar (NP) for the
    Respondents.
D
         The Judgment of the Court was delivered by

        V.S. SIRPURKAR, J. 1. The order passed by the High
   Court allowing a Civil Revision and thereby restoring the order
   of the Trial Court is challenged herein. A Civil Suit bearing No.
 E 321-A of 1984 came to be filed by the respondents against the
   father of the petitioner No. 1 namely Kallu. Kallu died during the
   pendency of the suit and his legal heirs were brought on record.
   The suit was for declaration of title, possession and permanent
   injunction against the appellants/defendants in respect of the
 F house in dispute. The Court proceeded ex-parte and the
   decree came to be passed. It is only when the execution
   proceeding started that the appellants/defendants allegedly
   came to know about the decree and moved an application
   under Order IX Rule 13 read with Section 151 of the Civil
.G Procedure Code (hereinafter called 'CPC' for short) for setting
   aside the ex-parte decree.

      2. According to the appellants/defendants, this application
  was moved within 30 days from the date of their knowledge of
H ex-parte decree. The appellants/defendants had pointed out that
     BHAGMAL & ORS. v. KUNWAR LAL & ORS.                   1109
             [V.S. SIRPURKAR, J.]

there was a compromise effected on 10.12.1983, which was            A
an out-of-Court settlement, wherein it was agreed between the
parties that the respondent No. 1/plaintiff would withdraw the
suit on account of the understanding having been arrived at
between the parties. The appellants/defendants further pleaded
that since it was the understanding between the parties that the    B
respondent No. 1/plaintiff would withdraw the suit or get it
dismissed, they did not attend the further proceedings, which
the respondent No. 1/plaintiff continued surreptitiously and
hence they did not even know about the ex-parte order and the
decree passed against them. It was the stand of the appellants/     c
defendants that since the application had been moved within
30 days from the knowledge, a separate application for
condonation of delay was not required. The application under
Order IX Rule 13 was dismissed by the Trial Court, which held
the said application to be barred by time. A Misc. Civil Appeal     0
came to be filed in the Court of District Judge, Bhopal against
that order. There was some delay in filing the said appeal and,
therefore, the application under Section 5 of the Limitation Act
for condonation of delay was also filed. The appellate Court held
that the application filed by the appellants/defendants under       E
Order IX Rule 13 deserved to be allowed and held that the Trial
Court had erred in law in not allowing the application. The
appeal came to be allowed and the appellate Court directed
the Trial Court to decide the case on merits after hearing the·
parties.
                                                                    F
     3. A Civil Revision came to be filed under Section 115
CPC before the High Court. The High Court took the view that
the application filed by the appellants/defendants under Order
IX Rule 13 was barred by time and the appellate Court had not
recorded any finding on the question as to whether the filing of    G
the application under Section 5 of the Limitation Act was
necessary or not and, therefore, the appellate Court had
exceeded its jurisdiction in allowing the application without
condoning the delay. On that count, the impugned order of the
appellate Court was set aside and that of the Trial Court was       H
    1110    SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A   restored. Ms. June Chaudhary, learned Senior Counsel
    appearing on behalf of the appellants invited out attention to
    the order of the appellate Court, by which the Order IX Rule 13
    application of the appellants/defendants was allowed. The
    learned Senior Counsel pointed out that the appellate Court
B   had, on merits, discussed all the issues and had come to the
    finding that there indeed was a compromise effected in
    between the parties, in which there was an understanding
    arrived at that the respondent No. 1/plaintiff would withdraw his
    suit in pursuance of the understanding between the parties. The
c   learned Senior Counsel also pointed out that, therefore, the
    appellants/defendants never attended the Court after
    10.12.1983. This was tried to be countered with Shri M.P.
    Acharya, the learned Counsel appearing on behalf of the
    respondents that the order sheet of the suit showed as if the
    appellants/defendants were present even after 10.12.1983. Our
0
    attention was invited to the order sheets of the dates after
     10.12.1983, wherein it was recorded 'parties as before'. On
    that basis Shri Acharya contended that the appellants/
    defendants remained present in the Court and they had the
    knowledge of the proceedings. However, our attention was also
E   invited to the finding by the appellate Court that those entries
    could not be relied upon because admittedly there were no
     signatures of the parties on any of those order sheets.
     Therefore, one thing was certain that the appellate Court was
     right in holding that due to the compromise effected, the
F   appellants/defendants did not attend the suit and, therefore,
    were not knowing about the proceedings at all.

       4. The appellate Court also has pointed out that the
  evidence was led before the Trial Court in support of the
G application under Order IX Rule 13 and in that, the appellants/
  defendants had examined the witnesses like Rambharose
  (AW-1), Shanta Bai (AW-2), Jabia (AW-3), Babula! (AW-4),
  Bhagmal (AW-5), Genda Lal (AW-6), Dashrat Singh (AW-7),
  Bhurra @Aziz (AW-8) and Nand Kishore (AW-9). The appellate
H Court also recorded the finding that the compromise deed was
     BHAGMAL & ORS. v. KUNWAR LAL & ORS.                    1111
             [V.S. SIRPURKAR, J.]

al'so got proved by the appellants/defendants in those              A
procE;!edings through the witnesses who asserted that the
compromise deed bore their signatures. The witnesses went
on to say that the compromise deed was also signed by the
present respondents. The appellate Court, therefore, rightly
came to the conclusion that the appellants/defendants were          B
justified in not attending the Court and that they did not even
know about the decree having been passed and, therefore, the
delay in presenting the application was also justified. The
appellate Court also referred to the evidence of respondent
 Kunwar Lal and came to the conclusion therefrom that indeed        c
a compromise deed was executed between the parties. The
appellate Court also went on to express that the inference by
the Trial Court that the compromise deed was doubtful, was also
not correct. The appellate Court has also dealt with the cross
objections raised before it by the present respondents to the
                                                                    0
effect that the compromise deed (Exhibit A-1) was prepared
fraudulently. The appellate Court has rejected that contention
in the cross objections and in our opinion, rightly.

      5. This well considered order of the appellate Court ca'me
to be interfered with by the High Court solely on the ground that   E
there was no application for condonation of delay made by the
appellants/defendants before the Trial Court in support of their
application under Order IX Rule 13 CPC. The High Court
observed that the appellate Court had not recorded any finding
on the question as to whether the filing of the application under   F
Section 5 of the Limitation Act was necessary or not and went
on to decide the application on merits and, therefore, it had
exceeded its jurisdiction. The High Court also commented on
the fact that the ex-parte decree was decided on 19.4.1985,
while the application for setting aside the ex-parte decree was     G
filed on 8.7.1988 and that no application for condonation of
delay under Section 5 of the Limitation Act was filed.

    6. Relying on Article 123 of the Limitation Act, the High
Court took the view that the application ought to have been filed
                                                                    H
    1112    SUPREME COURT REPORTS                  [2010) 8 S.C.R.


A within 30 days from the date of passing of the decree and since
  it was not so filed, at least a condonation of delay application
  should have been made under Section 5 of the Limitation Act
  and, therefore, in the absence of prayer for condonation of
  delay, the appellate Court could not have allowed the
B application under Order IX Rule 13.

         7. In our opinion, the High Court was not justified in taking
    a hypertechnical view. We have seen all the orders. It is quite
    clear from the Trial Court's order that the Trial Court entertained
    the application on merits. The Trial Court undoubtedly has .
C   referred to the reply of the respondents to the effect that the
    application for setting aside the ex-parte decree was beyond
    the limitation. However, the view taken by the Trial Court was
    based more on the merits. In fact, it went on to record the finding
    that there was no compromise and the theory of compromise
D   and delay on account of that was not acceptable. The Trial Court
    has more or the less based its findings regarding delay on the
    basis of the order sheets. That was not right as the order sheets
    nowhere bore the signatures of the parties. They were
    mechanically written mentioning "parties as before". Therefore,
E   the Trial Court did not throw the application under Order IX Rule
    13 merely on the basis of the fact that no application for
    condonation of delay was made. It went on to consider the delay
    aspect as well as the merits and even allowed the parties to
    lead evidence. It is to be seen here that the question of delay
F   was completely interlinked with the merits of the matter. The
    appellants/defendants had clearly pleaded that they did not
    earlier come to the Court on account of the fact that they did
    not know about the order passed by the Court proceeding ex-
    parte and a.lso the ex-parte decree which was passed. It was
G   further clearly pleaded that they came to know about the decree
    when they were served with the execution notice. This was
    nothing, but a justification made by the appellants/defendants
    for making the Order IX Rule 13 application at the time when it
    was actually made. This was also a valid explanation of the
H   delay. The question of filing Order IX Rule 13 application was,
      BHAGMAL & ORS. v. KUNWAR LAL & ORS.                       1113
              [V.S. SIRPURKAR, J.]

  in our opinion, rightly considered by the appellate Court on           A
. merits and the appellate Court was absolutely right in coming
  to the conclusion that appellants/defendants were fully justified
  in filing the application under Order IX Rule 13 CPC at the time
  when they actually filed it and the delay in filing the application
  was also fully explained on account of the fact that they never        B
  knew about the decree and the orders starting the ex-parte
  proceedings against them. If this was so, the Court had actually
  considered the reasons for the delay also. Under such
  circumstances, the High Court should not have taken the hyper-
  technical view that no separate application was filed under            c
  Section 5. The application under Order IX Rule _13 CPC itself
  had all the ingredients of the application for coridonation of
  delay in making that application. Procedure is after all handmaid
  of justice. Here was a party which bona fide believed ttie
  assurance given in the compromise panchnama that the                   0
  respondent No. 1/plaintiff would get his suit withdrawn or
  dismissed. The said compromise panchnama was made
  before the elders of the village. Writing was also effected,
  displaying that compromise. The witnesses were also
  examined. Under such circumstances, the non-attendance of              E
  the appellants/defendants, which was proved in the further
  proceedings, was quite just!fiable. The appellants/defendants,
  when ultimately came to know about the decree, had moved
  the application within 30 days. In our opinion, that was sufficient.

      8. Shri Acharya, learned Counsel appearing on behalf of            F
 the respondents tried to argue on the basis of Article 123 of
 the Limitation Act. However, in our opinion, Article 123 cannot
 be, in the facts of this case persuade us to take the view that
 the limitation actually started from the date of knowledge, as
 the appellants/defendants had no notice of the decree or the            G
 proceedings which the respondents had promised to terminate.
 Shri Acharya then tried to persuade us by suggesting that
 unless the application was filed for condonation of delay, the
 court had no jurisdiction to entertain the application for setting
 aside the decree. He has based this contention on the basis             H
    1114     SUPREME COURT REPORTS                  (2010] 8 S.C.R


A   of a reported decision of this Court in Sneh Gupta Vs. Devi
    Sarup & Ors. [2009 (6) SCC 194] and more particularly, the
    observations made in para 70 therein. In our opinion, the facts
    of this case were entirely different, as it was held in that case
    that the appellant had knowledge of passing of the compromise
s   decree and yet she had not filed the application for condonation
    of delay. That is not the situation here Even in this case, there
    is a clear cut observation in para 57, as follows:-

         "However, in a case where the summons have not been
         served, the second part shall apply."
c
       The Court was considering Article 123 of the Limitation
  Act. In our opinion, in this case, the limitation must be deemed
  to have started from the date when the appellants/defendants
  came to know about the decree on 22.6.1988. An application
D under Order IX Rule 13 was filed within 30 days from that date
  and, therefore, it is clear that it was within time. At any rate,
  even if it held that the limitation started from the date of decree,
  there was a satisfactory explanation of the delay if any.

E        9. We, therefore, allow this appeal, set aside the judgment
    of the High Court and restore that of the appellate Court. The
    suit will now proceed before the Trial Court in pursuance of
    these orders. Under the circumstances, the proceedings of the
    suit shall be expedited. There shall be no costs.

F N.J.                                              Appeal allowed.