Judgment:
1. Heard the learned Counsel for the petitioners and the learned Counsel for the respondents 1 to 4. Matter is taken up for final hearing with their consent.
2. Present petition has been filed under Articles 226 and 227 of the Constitution of India challenging the order dated 1-8-2013 passed by the learned II Additional District Judge, Dakshina Kannada, Mangalore in MA No. 31 of 2011 filed under Order 43, Rule 1 of Code of Civil procedure, 1908 challenging the order passed in Miscellaneous Case No. 2 of 2007 passed on 30-7-2011 by the learned Senior Civil Judge and ACJM, Karkala filed under Order 9, Rule 13 of Code of Civil Procedure, confirming the same. Hence, the petitioners are before this Court. 3. The facts leading to file the present petition under Articles 226 and 227 of the Constitution of India are as follows:
Respondents have filed a final decree petition under Order 20, Rule 18 read with Section 54 of CPC before the Court of then Principal Civil Judge (Senior Division) and Mangalore, FDP proceedings were initiated in FDP No. 5 of 2005 before the Civil Judge (Senior Division), Karkala of Udupi District. The schedule property in question is situated within the jurisdiction of Moodabidri of Mangalore Revenue Taluk. After the receipt of the notice issued by FDP Court, the petitioners herein came to know that a preliminary decree had been passed against them in O.S. No. 127 of 1999 which was pending on the file of Court of Principal Senior Civil Judge, Mangalore. Soon after the same, they applied for the certified copies of the judgment and decree and other connected documents of O.S. No. 127 of 1999.
4. All these petitioners had engaged an Advocate by name Sri K. Krishna Moorthy to represent them in the original suit. No written statement had been filed on their behalf. In order to file written statement, Mr. K. Krishna Moorthy, learned Advocate representing them had written a letter to defendant 3 only, namely Venugopal to come and give instructions, so as to prepare the written statement. The said letter is dated 2-4-2003. Inspite of said letter, defendant 3 did not approach him and as such, he made a submission before the Court that he had no instructions from his clients, i.e. defendants. As such, the Court treated that the defendants had no written statement to be filed. Sri K. Krishna Moorthy was permitted to retire without issuing notices to the defendants therein. Accordingly an ex parte judgment and decree was passed granting share to the plaintiffs therein.
5. Soon after the receipt of these records and other connected papers, the petitioners chose to file a petition under Order 9, Rule 13 requesting the Court to set aside the judgment and decree passed therein. There was delay 916 days in filing the said petition. After holding an enquiry in regard to condonation of delay, the learned Judge has come to the conclusion that it is barred by time. Accordingly, petition is dismissed, as barred by time. Being aggrieved by the order of the Principal Senior Civil judge, Mangalore, an appeal came to be filed under Order 43, Rule 1(d) of CPC before the District Court, Mangalore and the II Additional District Judge, Dakshina Kannada, Mangalore chosen to dismiss the application on 1-8-2013 filed in MA No. 31 of 2011.
6. What is argued before this Court by the learned Counsel for the respondents herein is that there was an inordinate delay in filing the very petition under Order 9, Rule 13 of CPC. It is further argued that even after receipt of notice from the FDP Court there was sufficient delay in filing the petition and therefore the Trial Court has rightly rejected the petition.
7. Per contra Sri K. Chandranath Ariga, learned Counsel for the petitioners has vehemently argued that the delay of 916 days in filing the case of the nature will have to be liberally construed pedantic approach should be adopted by the Court. He has relied upon the decision of Apex Court in the case of Collector, land Acquisition, Anantnag and Another v Mst. Katiji and Others AIR 1987 SC 1353 : (1987) 2 SCC 107 : (1987)66 STC 228 (SC) : (1987)167 ITR 471 (SC) : 1987-I-LLJ-500 (SC) and another judgment in the case of Rama Nath Sao alias Ram Nath Sahu and Others v Gobardhan and Others AIR 2002 SC 1201 : (2002) 3 SCC 195.
8. The Apex Court in the case of Katiji, has held as follows:
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 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 mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable or removing injustice and is expected to do so ?.
9. As could be seen from the records Sri K. Krishna Moorthy, learned Counsel for the defendants in the original suit did not issue notices to all defendants to come and give instructions to prepare the written statement. He had written a letter to defendant 3 only and since defendant 3 did not come and give instructions, written statement could not be filed. The Court granted permission to Mr. K. Krishna Moorthy, learned Counsel to retire from the case. Soon after granting permission to retire, the Court should have issued Court notices to the defendants therein. He has relied on ruling in the case of Krishna Venkatesh Pai v Devappa Ayyu Naik and Others 1967(1) Mys. L.J. 236 : AIR 1968 Mys. 188, wherein it is specifically held as follows:
Where a Counsel has been engaged for an appeal and if, for any reason he wants to report no instructions, it is his duty to notify the appellant first and then seek leave of the Court to retire from the case. It is then the duty of the Court to protect the interest of the appellant by issuing notice to him or direct Counsel to file proof of having issued notice of his intention not to proceed with the appeal. The Court cannot dismiss the appeal merely on the Counsel reporting no instructions ?. 10. The learned Judge, who has dealt with the petition filed under Order 9, Rule 13 of CPC, has held in its order at Para 15, Page 11 as follows:
In proof of his contention 3rd petitioner in the evidence has deposed that in O.S. No. 127 of 1999 on the file of the then Principal Civil judge (Senior Division) and C.J.M., Mangalore their Counsel before retirement did not inform to them. Therefore only after receipt of notice in final decree proceedings F.D.P. No. 11 of 2005 after verifying records in O.S. No. 127 of 1999 and after obtaining certified copy of judgment and decree week ago they came to know about the decree that without issuing notice their Counsel was retired and before retirement their Counsel issued notice to one Venugopal 3rd defendant not to petitioners. For which petitioners Counsel has relied ruling in the case of Krishna Venkatesh Pai v. Devappa Ayyu Naik and Others, 1967(1) Mys. L.J. 236 ?.
11. No doubt, records in O.S. No. 127 of 1999 disclose that, no notices were issued to the petitioners by the Court after the Counsel filing his retirement memo.
12. What is held by the Apex Court in the case of Katiji is that meritorious case would not be thrown out of the board on the exertion of limitation. Similar observation is made by the Apex Court in the case of Rama Nath Sao regarding the construction of the words sufficient cause as found in Section 5 of the Limitation Act, 1963. It is held by the Hon'ble Apex Court in the decision in Sri Gopal Jalan and Company v Calcutta Stock Exchange Association Limited AIR 1964 SC 250, that in considering sufficiency of cause to set aside the ex parte decree Court should not be extremely strict. It is held that there is no difference between the words good cause under Order 9, Rule 9 of CPC and sufficient cause under Order 9, Rule 13 of CPC; both constitute reasonableness of the excuses given.
13. This Court in the case reported in ILR 1973 Mys. 167 has held that the ex parte decree passed by the Court below which has emerged into that the Appellate Court does not come in the way of the right of the defendants to get the ex parte decree set aside. In the facts and circumstances of the case both the Courts were accepted to adopt liberal approach towards the petitioners. The delay could have condoned by imposing reasonable costs, Dismissing the petition on the ground of limitation will not do the substantial justice between the parties.
14. In this view of the matter; both the Courts below have approached wrong approach and hence, the same needs to be corrected by this Court as per the supervisory power vested under Article 227 of the Constitution of India.
15. Accordingly, petition order is allowed. The ex parte order and judgment and decree passed by the Courts below are seta side and the original suit bearing O.S. No. 127 of 1999 stands restored to its original position. The petitioners shall pay a costs of Rs. 2,500/- to the plaintiffs on the next date of hearing, without fail. Parties shall appear before the Trial Court without awaiting further notice on 6-8-2015 and the learned Judge shall make all efforts to dispose of the suit preferably within six months from 6-8-2015.
Parties shall co-operate with the Court in expeditious disposal of the case.