1. Rule. Rule made returnable forthwith. Heard with the consent of the parties.
2. It is the case of the revision applicants that:
The present respondent has filed a suit for specific performance of contract bearing Spl.C.S. No.74/1997 which came to be dismissed in default on 12.01.2006. However, as the present applicants have filed counter claim in the said suit, the counter claim was proceeded though the suit was dismissed in default. The said counter claim of the present applicants was dismissed by the trial court. The applicants thereafter filed Spl.C.S. no.34/2007 in the trial court. Thereafter, the present respondent has filed an application for setting aside dismissal order alongwith an application for condonation of delay bearing M.A.R.J.I. No. 664/2007, which was dismissed in default by the trial court. It is further the case of the revision applicants that in the suit filed by the present applicants bearing Spl.C.S. No.34/2007, after filing of the written statement, the present respondent tried to amend the written statement and tried to introduce the relief of specific performance of contract, which is the subject matter of earlier suit, which was dismissed in default, and the restoration was also dismissed. Said amendment application was rejected by the trial court, and the said order was also confirmed by this Hon'ble Court. Again after about 5 years from the date of order of dismissal of the suit and after about 2 years from the date of dismissal of earlier application for condonation of delay, the present applicants, for the same relief of restoration of suit which was dismissed in default by the trial court, filed an application purported to be under Order IX Rule 9 of the Code of Civil Procedure for restoration of the suit alongwith an application for condonation of delay. It is the case of the revision applicants that after service of the notice of said application, the present respondent appeared in the proceedings and contended that the present proceedings were not maintainable as earlier application for condonation of delay was dismissed in default by this Hon'ble Court on 25.02.2009, and that delay, which was caused in filing the present application, is not at all properly explained by the present respondent, and therefore, the applicants prayed for rejection of the application. After hearing the parties, the learned trial Judge was pleased to condone the delay in filing the restoration application by its judgment and order dated 02.05.2013. The learned trial Judge has held that as earlier proceedings were not decided on merits and therefore, the present proceedings are maintainable. However, the learned Judge of the trial court did not advert to the fact as to whether there are sufficient case made out by the respondents for condonation of delay of more than 5 years. Being aggrieved by the said judgment and order passed by learned 4th Joint Civil Judge (Senior Division), Aurangabad, in M.A.R.J.I. No. 1238/2011 dated 02.05.2013, the present revision applicants preferred this civil revision application.
3. The learned counsel appearing for the revision applicants submits that, when earlier proceedings for the same relief were dismissed in default by the court, in that event subsequent proceedings for the same relief are not maintainable in view of Order IX Rule 9 (1) of the Code of Civil Procedure. The respondent is precluded for bringing a fresh proceeding on the same cause of action and for the same relief. It is further submitted that by lapse of time certain rights were accrued to the present revision applicants and those rights cannot be taken away merely on the ground of interest of justice. It is further submitted that judgment and order under challenge is otherwise perverse and illegal. The learned counsel for the revision applicants invited my attention to the provisions of Order IX Rule 9 of Code of Civil Procedure and submitted that once a suit is dismissed in default, same cannot be restored by adjudication on merits. It is further submitted that, if the averments in the application, which was filed for restoration of the suit and which came to be dismissed in the year 2009 and the averments in M.A.R.J.I. No. 1238/2011 which was filed for restoration of earlier application which was dismissed in default, it can be safely concluded that, the averments in both the applications are almost same.
4. It is submitted that when first application was filed by the respondents, there was delay of more than one year to file such application. The said application was dismissed in default in the year 2009 and thereafter another application is filed in the year 2011. It is submitted that there was more than 5 years delay in filing second application for restoration of the earlier application and suit to its original file. The learned counsel appearing for the revision applicants further submits that the trial court itself has not accepted the grounds which are stated in the application for condonation of delay, however, proceeded to condone the delay merely on the ground of interest of justice. It is submitted that when there is an inordinate delay, some right is accrued in favour of other party and therefore, the trial court should have considered the explanation offered by the respondents in support of their prayer for condonation of delay in minute details. The learned counsel for the revision applicants pressed into service exposition of this Court in a case of DarachandHarakchand Oswal and others vs. Suresh Waman Karmarkar and another reported in 2003 (1) Mah.L.J.472 and submitted that, the suit filed by the respondents was dismissed in default and another suit on the same cause of action is not maintainable.
5. On the other hand, the learned counsel appearing for the respondent invited my attention to the reasons recorded by the 4th Joint Civil Judge (Senior Division), Aurangabad, while condoning the delay and submits that the trial court, upon perusal of the sufficient cause disclosed in the application for condonation of delay, was satisfied that in the interest of justice such delay is required to be condoned. The learned counsel for the respondent, relying upon the affidavit in reply, made submissions that the father of the respondent (deceased Uttamrao Pede) had filed suit for claiming the relief of specific performance of contract against the present applicants, as an agreement of sale of the suit plot bearing no.55 situated at Tilaknagar, Sillod, Tq. Sillod, Dist. Aurangabad was took place in between the father of the respondent and the applicants on 08.08.1994 for the consideration amount of Rs.3,51,000/- out of which an amount of Rs.3,41,000/- already paid by his father to the present applicants and at that time possession of the suit plot was handed over to his father. Till today, the respondent is in actual and physical possession of the said plot. During pendency of the suit, his father died. After death of his father, his name is recorded as legal heir as plaintiff to the said proceedings bearing Spl. C.S.No.74/1997, which was dismissed in default on 12.01.2006. It is the contention of the learned counsel for the respondent that in the said suit, the applicants had filed their counter claim for claiming the relief of possession on the basis of relationship of landlord and tenant. The said counter claim was dismissed on merit on 30.09.2006. Thereafter, the present applicants have preferred an appeal bearing R.C.A.No. 139/2007 which is also dismissed on merit by the District Judge, Aurangabad, on 28.01.2011. The present applicants have also filed Special Civil Suit No.34/2007 for claiming the relief of possession on the basis of title. The said suit also dismissed on merit on 08.10.2012. In the said proceeding, the respondent had filed an application for amendment in written statement for claiming the relief of specific performance which is dismissed. The learned counsel appearing for the respondent further submits that being aggrieved by the judgment and order passed in Spl. C.S.No. 34/2007, the present applicants preferred an appeal bearing R.C.A. No. 548/2012 which is pending before the District Court, Aurangabad. The respondent filed delay condonation application alongwith restoration bearing M.A.R.J.I. 664/2007, which is dismissed in default on 25.02.2009. Thereafter instead of filing delay condonation and restoration in M.A.R.J.I. No.664/2007 the respondent had filed delay condonation and restoration in Spl. C.S. No.74/1997 under Order IX Rule 9 of Civil Procedure Code which is maintainable in the eye of law and same is allowed subject to cost of Rs.3000/- on 02.05.2013. The cost was deposited in the court on 12.07.2013. The learned counsel for the respondent further submits that in the said proceeding, the respondent has raised grounds of illness of his two sisters namely Rukmini Pede and Soni Pede, as one is handicapped and another is a patient of Acynotic Heart disease. The valuable rights of the respondent in immovable property are involved and were not adjudicated. The respondent has adduced an evidence of total three witnesses in M.A.R.J.I. No. 1238/2011 and the trial court has rightly appreciated and considered the evidence of this respondent and was pleased to pass judgment and order dated 02.05.2013 by allowing the delay condonation application subject to cost of Rs.3000/-. The trial Court has relied on citation in a case of State of Karnataka vs Y. Moideen Kunhi (dead) by Lrs. and Ors. reported in AIR 2009 SC 2577 (Karnataka) in which it is held that, sufficient cause must receive liberal construction to advance substantial justice â delay held was liable to be condoned subject to payment of exemplary cost of Rs. Ten lacs. The learned counsel for the respondent contends that by the said order, no prejudice will be caused to the applicants and therefore, the civil revision application filed by the applicants is liable to be dismissed with costs. The learned counsel for the respondent further submitted that Section 115 of C.P.C. makes it clear that the High Court shall not vary or reverse any order made or any order deciding an issue in the course of suit or proceedings except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. He further submitted that after amendment in 1976 and 1999 and prior, where the order or the decree, as the case may be, was not appealable Sub sec.(2) which was introduced by old amendment Act and retained even after present amendment provides that the High Court shall not inference where the order or the decree is appealable in courts. After amendment in 1st July 2002, under the proviso to Section 115 (1), the High Court shall not vary or reverse any order made or any order deciding an issue in the course of suit or proceedings except where the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. The learned counsel further contends that section 115 (sy.26) makes it clear that the revisional jurisdiction is to be exercised for doing justice and not for upholding technical objections. Further justice should not only be done but also seen to have been done and therefore, the civil revision application is not maintainable. The learned counsel for the respondent submits that M.A.R.J.I. No. 1238 of 2011 was filed for delay condonation alongwith restoration under Order IX Rule 9 of C.P.C. (delay of 5 years 9 months and 18 days). The learned counsel further submits that in view of provisions of Order IX Rule 9 (SY.17) OF C.P.C., Second restoration application on dismissal of first one consideration of :- A suit was dismissed as the Advocate for plaintiff reported, no instruction and withdrew from the suit. Plaintiff applied for restoration of the suit to file U/O IX R. 9 of C.P.C. As no one was present when the case was called that application was also dismissed. A further application was filed on behalf of the plaintiff that the order of dismissal of the first application should be restored to file. On the question whether such application could be entertained under Order IX Rule 9 R/w 141 or u/sec. 151 of the C.P.C. held that Section 141 would not apply and the application could be entertained U/sec. 151 of the C.P.C. It is further submitted that second restoration application can be considered U/sec.151 C.P.C. - Second restoration application can be considered under the inherent powers of court declared u/sec. 151 of the Code of Civil Procedure. To such an application provisions U/sec. 141 r/w Order IX Rule 9 would not apply. The reason is that Sec.141 contemplates proceedings which include original matters in the nature of suit, such as proceedings in probates, guardianships and so forth and also applications which are ejusdem generis with such proceedings.
6. The learned counsel for the respondent further submits that this court in a case of ParighabaiLaxman Turakane vs. Ashabai Raosaheb Lasure and another reported in 2012 (4) Bom.C.R.802, has considered the provisions of section 5 of Limitation Act and condoned the delay of more than one year. It is submitted that the court has to adopt liberal approach while considering the prayer for condonation of delay. The learned counsel further submits that in a case of Darachand cited supra, the High Court was dealing with different facts and situation and therefore, the ratio laid down in the said judgment is not applicable in the facts of the present case. Therefore, he submits that this civil revision application may be rejected.
7. I have given careful consideration to the rival submissions, with the able assistance of learned counsel appearing for the revision applicants and respondent, I have perused grounds taken in the civil revision application, annexures thereto, affidavit in reply filed on behalf of respondent, provisions of the code of civil procedure and the judgment of this Court cited supra. At the outset, it would be apt to reproduce hereinbelow the provisions of Order IX Rules 8 and 9 which reads thus -
â8. Procedure where defendant only appears:- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where only part of the claim has been admitted shall dismiss the suit so far as it relates to the remainder.
9. Decree against plaintiff by default bars fresh suit :- (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.â
8. The respondent herein, in his application for condonation of delay, in para 1 has mentioned that M.A.R.J.I. No.1238/2011 is filed by the respondent i.e. original plaintiff under Order IX Rule 9 of the Code of Civil Procedure. It is further stated in the said para that till filing of the said application, there is total delay of 5 years 9 months and 18 days caused for filing restoration of Special Civil Suit No.74/97. If the averments made in M.A.R.J.I. No. 664/2007 and M.A.R.J.I. No. 1238/2011 are compared, I find considerable force in the arguments of the learned counsel appearing for the revision applicants that, the averments in earlier application wherein there was delay of 1-2 years and averments in subsequent application i.e. M.A.R.J.I. No.1238/2011 are almost same. When the earlier application was filed in the year 2007 for restoration of the suit, there was delay of more than 500 days. However, said application came to be dismissed for want of prosecution in the year 2009 and thereafter respondent filed M.A.R.J.I. No. 1238/2011 for restoration of earlier application for condonation of delay and also for restoration of the suit after 5 years 9 months and 18 days. Therefore, if the length of delay is considered when the application was filed in the year 2007 was 500-600 days, however, when another application is filed in the year 2011, there is delay of 5 years 9 months and 18 days. Therefore, while disclosing the 'sufficient cause' in the second application, the respondent ought to have explained entire period of delay. However, such detail and satisfactory explanation is consciously missing not only in the first application but even in the second application filed for condonation of delay. Upon careful perusal of averments made in M.A.R.J.I. No. 1238/2011 respondents have stated that the sister of applicant is suffering from congenial acynotic heart disease and was admitted in various hospitals at Mumbai. The name of the hospital is also mentioned in para no.1 of the application. Thereafter another ground which is stated by the respondent i.e. original plaintiff is that another sister of the respondent is handicap and applicant has to look after her. The respondent was at Mumbai for treatment of the sisters. Other facts are also stated in the application that there was theft in the house of the respondent and in theft, there was fire and burn and therefore, the respondent is not able to produce on record medical record of his sisters. The other grounds are also stated that father of the respondent/plaintiff died and after that he himself came on record and prosecuted the proceeding.
9. If the averments in the application are considered in its entirety, principal ground which is stated is about ailment of the sisters. When such application was heard by 4th Joint Civil Judge (Senior Division), Aurangabad, the court, in para nos.7 to 11 of the impugned judgment, held thus:-
â7. At the outset it is necessary to mention that, MARJI No.664/2007 was dismissed in default. At Exh.no.21, the certified copy of said proceeding clearly indicate said fact. Said proceeding was not decided, on merit. Hence whatever grounds raised in the said proceeding were not adjudicated. This application is maintainable.
8. Applicant has raised the grounds of sickness of his sisters and mother. Beside it the oral evidence of Gajanan (PW No.1) and Rukhmini (PW No.2) that, applicant could not attend the proceeding. Both witnesses are cross examined at length. The fact of contesting of earlier litigation is admitted by Gajanan. He admitted that, in the year 2007, he got the knowledge of dismissal of Spl. S.C. NO.74/1997. Even Rukhmini admitted that, after death of her father, Gajanan started to look after the proceeding of Spl.S.C.No.74/1997, by visiting at Aurangabad.
9. Thus from the oral evidence it is clear that, applicant had the knowledge of the suit, after death of his father. It is a fact that, applicant was on visiting terms to Aurangabad for this purpose. This fact is also reflected in the Rozanama of Spl.C.S. No. 34/2007 (Exh.No.43).
10. Dr.Vilas (PW No.3) is examined at Exh.No.28. However his evidence is of no much help to the applicant. Reason for the same is that, he testified that illness of sister of the applicant was not such that, a family member was required to attend her and also said illness did not demand immediate operation.
11. Thus it becomes crystal clear that, applicant has attended the proceedings in the counter claim, after the dismissal of the suit, which is sought to be restored. Applicant had preferred a proceeding for restoration of the suit alongwith delay condonation application, that is MARJI No.664/2007. As stated earlier this application was dismissed in default. There was no adjudication.â
(underlines added)
10. Upon conjoint reading of para nos.7 to 11, there is no doubt that, the court recorded the conclusion that the application is maintainable since earlier application for condonation of delay was dismissed in default. In para nos.8 and 9, the court has discussed whether the respondent/plaintiff has knowledge about pending proceedings and recorded a conclusion that the respondent/plaintiff was frequently visiting Aurangabad and he had knowledge about the pending suit after death of his father. In para no.10, the court has adverted to the evidence of PW 3 Dr.Vilas who was examined at exh.28. However, it is observed by the court that his evidence is not much helpful to the applicant, and there is further observation in para no.10 that evidence of said witness is not much helpful to the plaintiff that, since illness of sister of the applicant was not of such that a family member is required to attend her and also said illness did not demand immediate attention. The Court, in para no.11 further observed that the respondent/plaintiff attended the proceeding in the counter claim after dismissal of the suit which is sought to be restored. Therefore, the court reached to the conclusion that the plaintiff was aware about pending proceedings and also was diligently attending the counter claim filed by the respondent. However, the trial court, in para no.12, by observing that though there are some mistakes on the part of the applicant i.e. original plaintiff, the justification to condone the delay, is made as a litigant cannot be denied the opportunities to put forth his alleged rights, interests etc. allowed the application for condonation of delay.
It is further observed in para nos.13 and 14 that by imposing some cost upon the plaintiff, delay can be condoned.
11. When admittedly, there is delay of more than 5 years 9 months and 18 days, and when the concerned court has not accepted 'cause' disclosed in the application for condonation of delay, condoning the delay by stray observations i.e. in the interest of justice such delay is required to be condoned, is not only defeating the provisions of Limitation Act, but amounts to causing injustice to the defendants i.e. Revision applicants herein. When the court considers the case in the interest of justice, the trial court should have kept in mind that, the justice not only to the plaintiffs but even to the defendants. The justice should be to both the sides. The constitutional bench of the Hon'ble Supreme Court in a case of State of Madhya Pradesh and another vs. Bhailal Bhai and others reported in AIR 1964 SC 1006, while considering the delay in filing writ petition under Article 226 of the Constitution, wherein there is no any limitation prescribed for filing writ petition under Article 226 of the Constitution, held thus:
âThe provisions of the Limitation Act do not as such apply to the granting of relief under Art.226. However, the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art.226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.â
Therefore, it follows from the authoritative pronouncement of the Supreme Court in above mentioned judgment that, even though there is no limitation for filing writ petition under Article 226, the court may consider the delay unreasonable even if it is less than a period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable.
12. In the facts of the present case, when the court was convinced that there is no 'sufficient cause' disclosed in the application for condonation of delay, the court should not have condoned inordinate delay of more than 5 years 9 months and 18 days. Therefore, the concerned court has exceeded the jurisdiction and thereby condoned the delay. Though the court can exercise the discretion while entertaining the prayer for condonation of delay, the court has to exercise the discretion in a judicial manner. It appears that the trial court though convinced that there is no sufficient cause to condone the delay, merely in order to do the justice to the plaintiff, has condoned the delay. The Hon'ble Supreme Court in a case of R.B.RamlingamVs. R.B.Bhvaneshwari reported in 2009 (2) SCC 689 held that, the test of "sufficient cause" is purely an individualistic test. There are no categories of sufficient cause. The categories of sufficient cause are never exhausted. Therefore, the legislature has left upon a well intentioned discretion to decide individual cases.
Therefore, when the courts are called upon to exercise the discretion, the court has to exercise discretion in a judicious manner and taking into consideration the 'sufficient cause' disclosed in the application for condonation of delay. At the cost of repetition, it has to be observed that when court refers to the term 'in the interest of justice', it means justice to both the sides and not only to one side.
13. In another authoritative pronouncement in a case of Lanka Venkateswarlu (dead) by Lrs. Vs. State of A.P. and others reported in 2011 (4) Mh.L.J. 104, the Hon'ble Supreme Court held that, court do not enjoy unlimited and unbridled discretionary powers and discretion has to be exercised in a systematic manner informed by reason. The Hon'ble Supreme Court in para no.26 of the said judgment held that :
26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as âliberal approachâ, âjustice oriented approachâ, âsubstantial justiceâ can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.â
In another authoritative pronouncement of the Hon'ble Supreme Court in a case of P.K.Ramachandranvs. State of Kerala and another reported in 1997 (7) SCC 556, held thus:
âLaw of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs. â
14. As already observed, upon careful perusal of the averments in the application, it is abundantly clear that those averments in support of condonation of delay are general in nature. It appears that the trial court did not accept the grounds stated by the applicants in support of prayer for condonation of delay, however, proceeded to condone the delay.
15. The trial court itself has observed that the plaintiff was attending the hearing of counter claim filed by the original defendant i.e. applicants herein. Therefore, this situation also leads to the conclusion that when the plaintiff/respondent attended the hearing of the counter claim filed by the revision applicants herein, there was no reason in not prosecuting the suit filed by the respondent. Not only that the suit was dismissed in default but the application which was filed for restoration of the suit with a prayer for condonation of delay was also dismissed for want of prosecution and thereafter belatedly after 5 years 9 months and 18 days, another application is filed for condonation of delay and for restoration of the suit. When the court realised that there was no 'sufficient cause' disclosed in the application for condonation of delay, as held by the Hon'ble Supreme Court in a case of Lanka Venkateswarlu (dead) by Lrs.(supra) the court had no unlimited and unbridled discretion to condone the delay by merely observing that in the interest of justice delay deserves to be condoned.
16. Therefore, if the facts of the case are considered in its entirety, in the light of the provisions of Order IX rule 9 of Code of Civil Procedure and also section 141 of Code of Civil Procedure and even the provisions of section 5 of the Limitation Act, there is no doubt that 4th Joint Civil Judge (Senior Division), Aurangabad has exceeded the jurisdiction and for unsustainable reasons in law condoned the delay. Therefore, within the scope of revisional jurisdiction under Section 115 of the Code of Civil Procedure, the interference in the impugned judgment and order is warranted.
17. Accordingly, the impugned judgment and order is set aside. M.A.R.J.I. No.1238 of 2011 stands rejected. The status of the suit prior to passing the impugned judgment and order will remain as it is. Rule made absolute in above terms. Civil Revision Application is allowed to above extent. Same stands disposed of. The Registry is directed to circulate copy of this judgment to all Civil Judges working in State of Maharashtra within the jurisdiction of Bombay High Court.