Taro Devi, and ors. Vs. Giano Devi and ors.

Taro Devi, and ors. vs Giano Devi and ors.

Type Court Judgment Court Jammu and Kashmir Decided Dec 10, 2010

~7 min read

https://sooperkanoon.com/case/911661

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/911661
Court: Jammu and Kashmir High Court
Judge: Dr. Aftab H ; Saikia, J.J.
Decided On: Dec 10, 2010
Case Number: CRev No. 103 OF 2008.
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

[D.Y. CHANDRACHUD; ANOOP V. MOHTA; ROSHAN DALVI, JJ.] - Constitution of India - Articles 226, 227, 32; Bombay Industrial Relations Act, 1946 - Section 78; Code of Civil Procedure, 1908 (CPC) - Section 115; Bombay High Court Original Side Rules, 1957 - Power of High Courts to issue certain writs -- In an appeal by th...

Key legal issue: Criminal
Acts & sections: Code of Criminal Procedure (CrPC) (Cr. P. C), 1973 - Section 476 ;

Parties & Advocates

Appellant / Petitioner

Taro Devi, and ors.

Advocate Mr. Akshay Anand. Adv.

Respondent

Giano Devi and ors.

Advocate Mr. V. R. Wazir ; Mr. Dheeraj Kumar, Advs.

Legal References

Acts: Code of Criminal Procedure (CrPC) (Cr. P. C), 1973 - Section 476 ;

Excerpt

.....of the high court to issue a writ of certiorari, among other writs, is preserved and recognized by article 226 of the constitution. justice sarkar rejected the argument that high courts were inferior courts as appeals lie from them to the supreme court. an application for interim injunction was rejected by the trial court and the appellate court. the high court dismissed the petition holding that it was not maintainable. while allowing the appeal, the supreme court held that the order and proceedings of a judicial court subordinate to the high court are amenable to writ jurisdiction under article 226. article 227: article 227 of the constitution confers on every high court a power of superintendence over all courts and tribunals throughout the territory, in relation to which it exercises jurisdiction, excepting any court or tribunal constituted by or under any law relating to the armed forces. the distinction between articles 226 and 227 of the constitution is that while proceedings under article 226 of the constitution are in the exercise of the original jurisdiction of the high court, proceedings under article 227 of the constitution are not original, but are supervisory. the supreme court has adverted to the difference between 15 (2003) 6 scc 675 articles 226 and 227 of the constitution article 226 being a proceeding in the exercise of the original jurisdiction of the high court, while a proceeding under article 227 is not original, but only supervisory. in shalini shyam shetty vs. rajendra shankar patil,16 the supreme court considered the provisions of the bombay high court original side rules, 1957 and the bombay high court appellate side rules, 1960. the supreme court held that articles 226 and 227 "stand on substantially different footing". whereas the jurisdiction under article 226 is normally exercised where the party is affected, the power under article 227 can be exercised by the high court suo motu as a custodian of justice. the supreme court..........mr. v. r. wazir and mr. deeraj kumar, learned counsel appearing for respondent no. 1.2. this civil revision petition has been initiated against the order dated 22.7.2008 passed by the learned sub judge (cjm), jammu in file no. 68/civil by which the application under order 9 rule 13 cpc filed on behalf of the petitioner for setting aside of ex-parte decree dated 29.9.2001 was dismissed.3. it is alleged herein that the petitioner, feeling aggrieved by the ex-parte order mentioned hereinabove, filed an application under order 9 rule 13 cpc for setting aside the same along with an application for condonation of delay, alleging fraud and misrepresentation. the impugned order has been assailed in two counts, -(i) the summons were not duly served upon him and (ii) the condonation application accompanying the application under order 9 rule 13 cpc has been dismissed without considering the explanation placed on record, i.e., there was clear explanation that when he got the knowledge about the order only on 11.10.2002, an application to obtain the copy was immediately filed on 12.10.2002 which was issued to him on 16.10.2002 and immediately the said application for setting aside the ex-parte decree was filed.4. i have heard learned counsel for the parties and also carefully perused the records so requisitioned from the court below.5. impugning the rejection of his application for setting aside ex-parte decree, the petitioner has primarily relied on paragraph nos. 16 and 18 of the revision petition, which are quoted below.16. that as the service was not effected under sub rule 2 of rule 19a there was no occasion to order for the service under rule 20. the learned sub-judge has mentioned that though registered letter was returned by the postman with the report of refusal, but despite that court did not declare the defendant / applicant to be duly served and instead made further order for publication of notice in the local daily states time. this finding of the court below is.....

Full Judgment

1. Heard Mr. Akshay Anand, learned counsel appearing on behalf of Mr. S.S. Lehar, learned Senior Counsel as well as Mr. V. R. Wazir and Mr. Deeraj Kumar, learned counsel appearing for respondent no. 1.

2. This Civil Revision petition has been initiated against the order dated 22.7.2008 passed by the learned Sub Judge (CJM), Jammu in file No. 68/Civil by which the application under Order 9 Rule 13 CPC filed on behalf of the petitioner for setting aside of ex-parte decree dated 29.9.2001 was dismissed.

3. It is alleged herein that the petitioner, feeling aggrieved by the ex-parte order mentioned hereinabove, filed an application under Order 9 Rule 13 CPC for setting aside the same along with an application for condonation of delay, alleging fraud and misrepresentation. The impugned order has been assailed in two counts, -(i) the summons were not duly served upon him and (ii) the condonation application accompanying the application under Order 9 Rule 13 CPC has been dismissed without considering the explanation placed on record, i.e., there was clear explanation that when he got the knowledge about the order only on 11.10.2002, an application to obtain the copy was immediately filed on 12.10.2002 which was issued to him on 16.10.2002 and immediately the said application for setting aside the ex-parte decree was filed.

4. I have heard learned counsel for the parties and also carefully perused the records so requisitioned from the Court below.

5. Impugning the rejection of his application for setting aside ex-parte decree, the petitioner has primarily relied on paragraph nos. 16 and 18 of the revision petition, which are quoted below.

16. That as the service was not effected Under Sub Rule 2 of Rule 19A there was no occasion to order for the service under Rule 20. The learned Sub-Judge has mentioned that though Registered letter was returned by the postman with the report of refusal, but despite that court did not declare the defendant / applicant to be duly served and instead made further order for publication of notice in the local Daily States Time. This finding of the court below is self-contradictory because the learned Judge has mentioned in the judgment that there was tampering. The learned Judge has not given any finding with respect to the issuance of ordinary summons. The court below has also not given any findings with respect to the mode of service contained in Clause-1 of Rule 20. There was no proper service to the petitioner and a fraud has been played which fact is further clear that when the Civil Second Appeal was decided the suit was pending, but this fact was not brought into the notice of the Hon ble Court. That the Husband of Respondent No. 3 appeared as a witness before the Sub-Judge, but he did not disclose regarding the earlier proceedings and concealed the material facts from the court; in this way committed pergery and is liable to be punished for concealing the material facts from the court and making false statements. The applicant though filed an application Under Section 476 Cr. P. C., but no finding has been returned by the Sub-Judge. .. ..

6. That the Learned Sub-Judge has dismissed the application for condonation of delay and held that no explanation has been given as to what prevented the applicant from filing this present application during the limitation period and further held that there is no absolutely any explanation of delay of about one year in filing the instant application. The learned Sub-Judge erred in holding the same because the applicant has clearly pleaded that he got the knowledge only on 11.10.2002 and he applied to get the copy on 12.10.2002 and the order impugned was issued on 16.10.2002. He has categorically pleaded that no summon was issued to him and this present application is within time from the date of knowledge.

7. From a bare perusal of the impugned order including the above quoted paragraphs, it transpires that the question of issuance of summon was clearly and elaborately discussed. That apart, the issue of condonation also has got due care by the Court below.

8. The relevant portion of the findings recorded by the learned Judge in dealing with the two questions raised by the petitioner needs to be extracted as under: The record of file reveals that the suit was filed on 16.05.1997 and summons were issued to the defendants therein including the applicant. The minutes of the proceedings reveal that the summons was ordered to be issued several times. On 20.02.1998 the defendants were ordered to be summoned through registered post were posted on 27.02.1998. The registered cover sent to the address of applicant was returned with the remarks refused recorded by the postman in red ink. The entry on the other side of the envelope net met bearing date as 20.03.1998, however the same date recorded on the other side of the envelope shows that the very first number is over written by using some other pen of dark blue ink. It seems that, in the record there is tampering in the date on the other side which needs to be proved separately being made afterwards purposely to falsify the report of refusal recorded by the postman. As such, there is no substance in the argument of LC for the applicant that at no point of time he was offered the summons since the record clearly belies his contention.

.. .. . ..

.. .. . .

. . . The next question for consideration is as to whether the applicant has explained the delay in presenting this application. It is borne from the record that the suit was decreed on 29th of September 2001 and the instant application was presented on 24.10.2002, i.e., after one year and 25 days approximately, whereas the limitation period for filing such application is 30 days. No explanation has been given as to what prevented the applicant from filing this application during that period so the submission of LC for the applicant that applicant was not aware of the passing of decree is not based upon true position of facts as emerging out from the record. There is absolutely no explanation for the delay of about one year in filing the instant application and in the absence of such long delay cannot be condoned.

9. In view of the above well reasoned order, this Court does not find any sufficient force in the contentions and averments made in this application including the paragraphs above mentioned.

10. This Court has also got an opportunity to lay its hands on the records including the application for condonation of delay.

11. For the sake of convenience, application for condonation of delay, which has been placed before this Court, may also be referred herein, which is quoted as under:-

1. That the Applicant was not served in the suit which was decreed on 29.9.2001. That the Applicant got the knowledge of order No. 11.10.2002 when his power of Attorney went to Tehsildar for getting the compensation. That Applicant got the knowledge of order on 11.10.2000 and applied through his power of Attorney to get the copy on 12.10.2002 which was issued on 16.10.2002. That the present application is within limitation from the date of the knowledge of the ex-parte decree.

Prayer

It is therefore most humbly prayed that delay in filing the Application for setting aside the ex-parte decree dated 29.9.2001 be condoned as the application is within time from the date of knowledge.

12. In consideration of the above, this Court is of the view that no illegality, perversity or any jurisdictional error is apparent on the face of the impugned order warranting interference in revisional jurisdiction. Accordingly, the revision petition stands dismissed. Record be sent down forthwith.

Same Court & Year Jammu and Kashmir · 2010 Same Parties Taro Devi, and ors. vs Giano Devi and ors. Same Subject Criminal Same Judge Dr. Aftab H ; Saikia, J.J. Acts & Sections Code of Criminal Procedure (CrPC) (Cr. P. C), 1973 - Section ...

Criminal