The Apex Court llt Joginder Singh (Dead) thr. L.Rs v. Virinderjit Singh Giil

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased To suspend the Order dated.21-04-2023 passed in E.A.NO. I OF 2022 lN E A NO 6S0 OF 2018 lN E.P,NO 341 OF 2022 (OLD E.P NO. 288 OF 201 5) on the file of Honble llnd Additional senior civil Judge, Medchal lvtalka.igiri District at Malkajgiri in the interest of .iustice Counsel for the Petitioner : SRl. D RAMAKRISHNA Counsel forthe Respondent No 1 and2: M SHANKAR Counsel for the Respondent No 3 :Non Appeared The Court made the following: ORDER THT] IION'BLE SRI JUSTICE T. VINOD KUMAR C'IVIL REVISIO N PIITITION No. I681 of 2023 ORDER: l. The present Civil Revision petition is filed aggrieved by the order dateci 21.04.2023 in ll.A. No. 8 of 2022 inE.A. No. 680 of 2018 irr E.p. No. 341 of 2022(OId E.p. No. 288 of 20t5) passed by the II Adclitional Senior Civil Judge, Medchal Malka.igiri District, At Matkajgiri.

2. The revision petitioner herein is the petitioner in the underll,ing application and Dccree Holcler in the Suit vide O.S. No. 15l5 of

3. The revision petitioner had filed E.p. No.34l of 2022 under Order XXI Rule 35 CpC seeking delivery of possession. In the aforesaid Execution petition warrants were issued and executed on 30. l0'2018 by derivery ofpossession to the revision petitioner. 4. The respondents/claim petitioners subsequently filed E.A. No. 680 of 2018 uncler Or.der XXI Rules 99 and 100 challenging the execution and sought for restor.ation ofpossession. \ I I l 2

5. The petitioner was served notice of the said petition on

22.02.2018 but failed to file a counter until 10.01.2020, despite being granted repeated opportunities including conditional order of payment of cost, which was not complied. Thus, the Court below forfeited his right to file the counter.

6. The petitioners herein had filed an interlocutory application under Section 151 of CPC vide E.A. No. 8 of 2022 praying to set- aside the order dated. 10.01.2020 in E'A. No. 680 of 2018' by pennitting the petitioner herein to file counter in the said application.

7. The Trial Court upon hearing both sides and perusing the record, observed that though the petitioner had claimed to be bedridden until 17.02.2020, failed to. filc any medical documentation supporting his claim. In contrast, the respondent had provided multiple references to the petitioner's active legal participation during the relevant period. Furthermore, the petitioner did not file any rejoinder to rebut these allegations or to provide an explanation for failing to file a counter. In addition, the petitioner failed to specify the docunr counter. ents he iutellded to obtain ior. filing the

8. The rrial Court further observed that in the absencc of any credible medical evidence or otherjustifiable grounds for the clelay, and as sutficient cause was not shown to set aside the forfeiture order, disnrissecl the underlying application.

9. Heard Sri D. Ranrakr.ishna, leame<t counsel for the petitioner., Sr. M. Shankar learned Counscl foi respondent Nos. I and 2 and perused the record.

10.The petitioner herein contends that he being the decree holder, the E.p. schedule property having been delivered 1o hirn, the application filed by tl.re responclents/claim petitioners vide E.A. 6g0 of20 r 8 seeking restoration of their areged possession under order. XXI Rules 99 and 100 CpC cannot be permitted; and that prior to the filing ofthe said application, the claim petirioners had filed an application trnder Order XXI Rulc 5g CpC, resisting delivery of possession, which was retumed. ll.The petitioner contends that the trial Court vide order dated. 10.01.2020 had forlbitecl the riglrt of the petitioner herein to fiie a 4 -r counter in the said E'A' No' 680 of 2018; that the petitioner thereafterfiledtheunderlyinginterlocutoryapplicationvide.E.A. 8 of 2022 in E.A' No' 680 of 2018 praying for setting aside of the forfeiture order dated' 10'01'2020 and to grant permission to file his coutrter in the claim petition' as he was bedridden with chronic back pain lrom March 2019, and fot the said reason he could not appear and file counter before the court below' l2.The petitioner further submits that he became aware of the order forfeiting his right to file counter after contacting his counsel; that due to the sudden outbreak of COVID-l9' he was unable to obtain necessary documents frorn the concerned authorities to file the counter. It is fu*her contended that these unavoidable circumstances constituted suffrcient cause' which the Court below failed to consider before dismissing the petition' l3.The petitioner also contends that the trial Court erred in dismissing the underlying interlocutory application without appreciating the extraordinary and compelling circumstances pleaded by the petitioner herein' including prolonged illness and sudden outbreak of Pandemic' ,a/ 5

14. Per contra the respondcnt/clairn petitioners by drawing attention of this court to the detaired counter filed before the trial court co,tended that the claim of petitioner herein being bedridden is false and unsupported by any niedicar record or certificate of a doctor. J'he respondents herein had craimed that the rcvision petitioner shad undertaken several legal actions during the period of u,hich he had claimed of suffering with illncss, including a police complaint registered on 09.04.2019 (Cr. No. 136/2019), filing of a countel'in a writ petition on 03.06.20r9, another writ petition on 13.08.2019 (W.p. No. 175i3 of 2019), a representation letter to (}HMC d,ated 12.10.2020, W.p. No. 19017 of 2020 filed on 20.10.2020, and a contempt case filed on 05.10.2021 before this court. The respondents thus contend ail the above actions of the petitioner demonstrate that hc was not suflfering from any serious health issues and was actively i,volved in litigation during the said period. l5.The respondents contend that the claim petition was posted for counter on 29.11 .2019, but due to non_representation on behalf of the petitioner, the rnatter was adjoumed to 10.01.2020 with a cosr 6 \ of Rs.1001. However, the petitioner again failed to appear' and accordingly, his right to file a counter was forfeited' Therefore' it is evident that the petitioner had deliberately avoided filing the counter and misled the court by suppressing material facts' The Court below has rightly dismissed the underlying interlocutory application.

16. I have taken note of the respective contentions urged' l7.On a careful consideration of the submissions made and perusal of the material on record, this Courl finds that the hial Court's order forfeiting the petitioner's right to file a counter was more based on procedural delay, rvithout fully appreciating the mitigating circumstances pleaded by the petitioner' due to prolonged illness and sudden outbreak of pandemic' l8.Though the petitioner had not filed any supporting medical records or speciff the documents he sought to obtain' the trial Cotrrt did not exercise its discretion in a liberal and justice-oriented manner, particularly when the petition involved adjudication of substantive rights related to possession and title' It is to be noted that the proceclural forfeiture has the effect of foreclosing \'/ \ 7 adjudication on merits, which is undesir.able unless the delay is found to be rvilful or dcliberate. I9.The Apex Court llt Joginder Singh (Dead) thr. L.Rs. vs. Virinderjit Singh Giil (Deor\) thr. L.Rs. and Orsr, while dealing rvith the procedural irregularities, held as below: alread.t ll'hilst looking at it purely front a procedural point of view, this nttty have some merit, hov,evcr, os hacl been long established, proct dural irrePular ily could not defe at s ub.s tantA'.C nphls or could .\ubs tontn'e Iusl ice SinCC llte obieclo ror h i.s {otlier ' had o decreein thei, fnvour. fi'uit.v thercoIcould notbe to then by virnrc of the fact thar tohile ottempting to protect their ri qhrs in a subsequent suit which tvould hove afected their enjol,manl o.[ such property, rhe Sections or Orders uncler whiclt lhey sought such protection. wcre itrcorrcct. denied

20.8y applying the above principle to the present case, it is to be noted that a litigant should ordinarily be allowed an opportunity to contest a claim on merits, especially where issues of_ possession and ownership are in dispute. The denial of such an opportunity due to procedurar rapses and irregularities amounts to deniar of substantial rrghts. I 2024 tNsc 814 \ 6 - 2l.In the facts of the case, it is to be noted that petitioner would not stand to derive any benefit by not filing counter and contesting the matter more particularly having got a j udgment and decree in his favour and also being handed over possession in Execution Petition.

22.ltis settled law that procedural laws are designed to facilitate justice, and not to frustrate the ends ofjustice' The Supreme Court in Kusum vs, Kanchan Devi and orf,had held that ordinarily a party should not be denied participation in an adversarial system, unless there is express and specific mandate to that effect in the language ofthe statute. The relevant observations are as under: "6- All the rules of procedtrre are lhe handmaid of justice The language employed by the draftsman of processual law may be Iiberal or slringent, but the fact remains thal the object of prescribing procedure is lo advance cause of justice ln an adversarial syslem, no pqrty should ordinarily be denied the opportunity of participating in the process ofiuslice dispensalion' Unless compelled by express and specific language of the Statute, the prot isions of the CPC or any olher procedural enactment ought not lo be construerl in a manner which would leave lhe court helpless to meet exlroordinory siluations in the ends ofjustice. , (2oos) 6 sk 4s \ 9 The nortority of justice at rhe har:ds of lmt, troubles a Judgc,s conscience and points ati crtgry itltcrrogatiott ol the lav., reformer. Tlrc pntcessual law so ove rpo,. cr su bst ant ive r, f rj: ::::;r::rr: ;;:: r":j;:;,r:;r:, rule lhot procedure shoultl be tlrc handnair!, not the nrtistress, of lcgal justice compels consi o, o,;, ; ri,l, *j' r r;!r':;:':;: ::;:; :;:: :: judges t o :: : r:";:::"':: :;; "", "r' tvould be wholly inequitobli 1:roce.s,r ual, as nttc h rr r:^::::;'';r': B i har tt{A N u*t9C/00 28/ t 9 7 S I t g 7 5 J 3 SC Rg 4 2. No person has a vested right in any course of procedurc. He hos only fhe right of prosea ion or dt,hnno ;- ,t-- ..._ being b1, or.for the Court in';':,:;:;::: r;, Act of Pat.liamettt the tnode ofprocedure is akered, he has no other right than to proceed accortling to the allcred mocle. (See Blyth v. Blyth (1966 (r) Art D.R. 524 (HL). A rtrocedurar rary shottrd not ordinarily be constnted a.g the procetlurnl law is always subservien! lo aful .,,o,,0o,o,,. wh ic h e I udes or frustra tes,;"' :: ;"t::' ;, :::r':: followed. (See Shreenatlt A,TANU/sc,,0286/t*r. ,,rrrirl^i* Processuol la*, ls not lo b obstractiotl tut oo oid toiu,tl": :::::,::,: ,:":,"i,iri;,,'ij".i handmaid and nol the mistrer ss' u lubricanl' nol a resislqnt in the adminisrratiort ofjusrice.,, :'r:' ;":: v' Raicsh and ors :r::;;'::;'; (ernphasis supplied) ) i 10

23. While echoing this principle in the case of Levaku Petlda Reddomma and Ors. Vs. Gotlumukkalo Venkala Subbamma & Aui, the Hon'ble Supreme Cour-t ltad held that it rvas appropriate to impose costs in case there was a delay.

24. Therefore, taking into considet'ation that the conduct of the petitioners hercin in not filing a counter to E.A. No. 680 of 2018 has delayed the adjudication olthe said application, this Court is of the view that the prejudicc causcd to the respondent can be compensated by rvaY of costs.

25. Accordingly, this Civii Revision Petition is allowed. The Ordel of Trial Court dated.21.04.2023 in E.A. No. 8 of 2022 in E.A. No. 680 of 20 18 in E.P. No. 341 of 2022 (Old E.P. No. 288 of 2015) is sct-asidc and the said E.A. I.lo. 8 of 2022 allowcd. The Revision petitionbr is permitted to file counter in E.A. No. 680 of 2018 within a period of two (2) weeks lrom the date of receipt of the copy of this order, subject to pa).ment of cost of Rs. 25,000/- (Rupees Twenty Five Thousand Only) to the respondent Nos. 1 and 2 herein. 3 MAN u/scoR/s4688/2022 I - 1,7 Consequently, miscellaneous petitions pending if any shall stand closed. //TRUE COPY// Sd/- A. PRATHIMA DEPUTY REGISTRAR -r \ \\\ / --) I I SECTION OFFICER To, '1 . The ll Additionat Senior Civil Judge at Matkajgiri 2. One CC to SRt. D RAMAKRISHNA Advocate [OPUC] 3 One CC to SRl. M SHANKAR Advocate tOpUCJ 4. Two CD Copies W Chs/gh I HIGH COURT DATED:1310612025 ORDER CRP.No.1681 of 2023 lHe S 14 (J 2 3 ,lutt 2[6 t ,1 rC ft' f'. c.)I i\ ALLOWING THE G.R.P WITHOUT COSTS 6 1f b