State of Maharashtra and others v. Shri Vithu Kalya Govari and othersr. (

THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI CIVIL REVISION PETITION NO.I782 OF 2025 ORDER 'l'his Civil Revision Petition is filed against the order of'the trial Court, i.e., Additional Junior Civil Judge at Gajwel dt.12.02.2025 in

1.A.No.422 of 2023 in O.S.No.295 of 2022 setting aside the e.t Potle decree passed on 09. 11.2022 by condoning the delay of 255 days on payment of costs of Rs.5,000/- to the opposite party and lurlher directing the petitioners therein/defendants in the suit to file the written statement within one week from the date of the order.

2. Brief lacts of the case are that the petitioner herein is the ptaintitT and has filed the suit O.S.No.295 of 2022 for pennanent injunction against the defendants therein along I.A.No.95 ol 2022 for ad interim injunction. Vide orders dt.08.06.2022, the trial Court granted ad interim injunction. Subsequently, as the defendants did not turn up in spitc ol service of notices, they were set ex part.e and ex parte judgment and decree were passed on 09.11.2022. But, when the judgment debtors tried to interfere with the possession of the plaintilf over the suit schedule property, thc petitioner approached the police for action. But the policc C.R.P.No. 1782 or 2025 - ) did not initiate a.ry action on the ground that the matter.is civir in nature. Therefore, the plaintiff filed E.p.No.7 or 2023 ro prorecr his rights over the property. 1'he petitioner also flled E.A.No.2 or' 2023 for police protection. At this j uncture also, when notices u,ere sent to the defendants/judgment debtors and were served on 27.03.2023, they refused to receive them and therefore, the defendants r.vere set ex parte and after examining rhe witnesses on behalf of the plaintifi the trial court held that the judgment debtors I to 3 have violated the decree passed in favour of the decrec horder. Thus, the Ep was alrowed and it was held that thc judgmcnt debtors l to 3 are liable for the civit imprisonment for 15 days. Thus, war.rant was issued to the judgrnent debtors and consequently on 13.07.2023, the defendants were produced before the Court, they have given an undertaking that they will obey the Court orders' Thereafter, the defendants filed I.A.No.4 22 of 2023 under Section 5 of the Limitation Acr read with Section 151 of CpC for condoning the delay of255 days in filing the petition to set aside the ex parte decree dt'09.1r.2022 and also to set aside the ex parte decree. The trial Courl has allowed the sarne subject to payment of costs of Rs.5,000/- to be paid to the opposite party and aggrieved, the plaintiff has filed the presenr Civil Revision petition I ''t C.R.P.No.l782 o12025 3

3. Learned counsel or the petitioner submitted that the delendants were very much aware of the pendency of the suit when the notices were served on them in the suit, but they chose not to appear before the Court and therefore, ex parte judgment and decree dt.09.11.2022 were passed and even in the E.P., when the notices were sent, they have refused to take the same and hence, they were set ex parte in the EP also and lor trespassing into the petitioner's land, arrest warrant was issued. It is submitted that the judgment debtors thereafter have given an undertaking that they would not interfere with the possession ol the plaintiff over the suit schedule property and therefore, they are precluded from filing the present I.A.No.422 of 2023. He submitted that the trial Court ought not to have condoned the delay of 255 days and ought not to have set aside the ex parte decree. He placed reliance upon the following decisions in support olhis qontention that when there is a wilful breach of the undertaking given by the defendants, it amounts to contempt of Court and thq delay ought not to be condoned and ex parte declee ought no1 to have been set aside. I C.R.P.No.l782 of2025 4 t\i '.'1 (1)State of Maharashtra and others Vs. Shri Vithu Kalya Govari and othersr. (2)Suman Chadha and another Vs. Central Bankof India2. (3) Basawaraj and another Vs. Special Land Acquisition Officer3. (4)Pathapati Subba Reddy (Died) by L.Rs. and others Vs. The Special Deput5, Collector.(LA)a. (5) M.Ponn u pa ndia n Vs. Selvabakiyam and otherss. (6)Sardar Vallabhbhai patel Smarak Trust Vs. Samarth Nangia6. (7)Devi Dass Vs. M/s. Ginni Global pvt. Ltd. and anotherT. It is subrnitted thal the triar court has passed the order in a mechanical way and without application of mind and therefore, it is liable to be set aside. a ' 1tn zooo (Noc) too8 (uom.) 'Ar\202 t sc l70q ' (20 l]) t4 scc 8l Special.Leare p.,;rlon ,. i!il) No.J I248 ot20ls dt.08.04.2024 ' AtR 2004 Madras 27) 6201t Lawsui(Del) 20o ' 2025:H l{C:20741 : CMpMO No. j05 ot2022 dt.Ot.O: .2025 of Iligh Courr of Hiruachat pradesh, I I -,7 1 C.R.P.No.l782 of2025 5

4. Learned counsel tor the respondents, on the other hand, submitted that the respondents/defendants were illiterates and were not aware of the consequences of not attending the Court and therefore, they remained absent and the suit was decreed ex parte on 09. I 1 .2022. It is subrnitted that the def'endants were not aware of the proceedings pending before the Court even in E.P. and only when arrest warrant was issued and they were produced belore the Court, they came to know about the ex parte decree and gave an undertaking that they would not interfere with the possession of the plaintiff over the suit schedule property. It is submitted that only when they approached the counsel at Gajwel, they were advised to file a petition to set aside the ex parte judgment and decree and therefore, they filed the application for condonation of the delay and for setting aside the ex parte decree. It is subrnitted that they have paid the costs of Rs.5,000/- as directed by the trial Courl to the plaintiff on 02.04.2025 and having accepted the costs, the plaintiff is precluded ,from filing this Civil Revision Petition. The learned counsel for the respondents relied upon the following judgments in support of their contentions. C R.l).No 1782 of 202_s 6 (i) Bharat Karla Vs. Raj Kishan Chabra8. ( ii) Ganamaina others'). Kanakaiah Vs. Ganamaina prasad and (iii) Mewa Singh Vs. Brahma Nandr0. (ir) Sohan Lal Vs. Dhari Mal-[shar Dasrr. (r) M.K.Prasad Vs. p.Arumugamr2. (ri) Vikramadifya Bhartia Vs. DDA|I

5. Learned counsei fbr the petitioner, howevcr, srrbmitted that the costs was not paicl by the defendants within the time granted by the trial Court and that the petitioner has accepted the sarne only under protest and therefore, thc same cannot be considered as acceptance by the petttloner.

6. Having regard to the rival contentions and the material on record, this court finds rhat the issue before this court is wherher the delay of 255 days can be condoned and whether the reasons given by the 8 2022 Lawsui(SC) 68.t 'cRPNo.67200r20lgdrli.0l?0240lHighcounlorrhestateofTelanganaarHvdcrabad 'u lgTZLawSui(P&H) q " {1R I928 Lahore 8iirtr '' AtR 2oo t sc 2agt Ir 201| SC OnLine Del -.t761 rur rrr( rLcrs ur I cr - ,-] C.R.P.No.1782 of2025 7 defendants lor non-appearance before the Court when the notices were issued and served on them in the suit as well as in the EP are acceptable and are justified particularly in vierv of the undertaking given by them belore the trial Court that they would not interlere with the possession of the petitioner/plaintiff over the suit schedule property

7. In the case ofSuman Chadha and another Vs. Central Bank of India (2 supra), the Hon'ble Supreme Court was considering the case of civil Contempt for wilfut and deliberate breach of the undertaking given by the contemnors. However, the facts of the said case are distinguishable and therefore, the said judgment is not applicable to the case on hand ipso facto.

8. In the case of Basawaraj and another Vs. Special Land Acquisition Officcr (3 supra), where the issue is with regard to condonation of delay, it was held that discretion to condone delay has to be exercised judiciously based on facts and circumstances of each case and sufficient cause cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party and even though limitation may harshly affect rights of a party, it has to be applied with all its rigour when prescribed by statute. C.R.P.No. l7tl2 of 202i 8

9. In the case of pathapati Subba Reddy (Died) by L.Rs. and others Vs. The Special Deputy Collector (LA) (4 supr.a), rhe FIon,ble Supreme Court after considering various decisions on thc sub.iect, has culled out the law laid down on the condonation of delay as under: " 26. On o harmoniou.t considerotion of lhe prot,i.\.r)n., o/. the latr,, oforc.soid, ond lhe lou) laitl dttt,n by thi.s Courr, it i.\ cli(le nt th(tt. OS (i) (i, Law of linilation it- based upon pultlit poliq, thut there should be on end to litigurion bl,.fotlbiting tlrc ri,qht to rcmctly rathar than the right itsclf; A right or the remedy, thot has nrst been t,rtrc.i.sctl or tn,oiled of./br a long time must come lo an cnd or cau;;c to exi.\t ojter afixed period o./ time; (iii) The provi.rnns o.l tha Limitalion ,.lt.t huye to lta con.rtruecl differently, tuch as Saction J hus to bc t.on.strutd itl o .\lricl .sense whereas Scction S has to be constrtred lihertrll.v, (iv) In order to atlvance .rubstantiul .lustit:c. though liberal approach, .fusr ice <trie nretr approach or c(rt,.e .J'sub,tantiar .lustic.e may be kcpt in mind but thc s.ama t..(tnttol be usad lo defeat the suhsranticrr lau, of rimitution L.ontoina(r in Seuion 3 of the Limitation Act; (r) Courl.s are empov,cratl to cxerci.se discration lo t.ontktne lhe delay if.su//itie nt cau.yc had be en explainad. brt tlt,t exer(.i.te rt/ poruer is tliscretionury in nalure ond moy not be uercised cve n if suf/itient (att.\'e i.f e.slahrished ./br r)orious .f(rror., such C.R.P-No.1782 of2025 9 as, v,here there is inortlinate delay, negligence and w,ant oJ due diligence; (r,, Merely some pcrsons obtained re lie.f in similar matter. it does not madn thot olhers ura alxt ctllilled to lhe same benefit if the court is not satislicd with the cause shown for lhe delay in .filing rhe appeal: (vii) Merits of lhe cosc ure nol required to be considered in condoning the dekry': ond (t'ii i) Deloy condonalkm applicutiott has to be decided on lhe parameters laid tlovvn .for condoning the delay and condoning lhe delay.fbr the reuxtn that the conditions have been imposed, lunlomounls to disregarding the statutory prov is ion. " The other decisions relied upon by the leamed counsel for the petitioner are also to this effect.

10. Leamed counsel for the respondents has relied upon the decision ol this Court in the case of Ganamaina Kanakaiah Vs. Ganamaina Prasad and others (9 supra), wherein the delay of 1240 in preferring the appeal against the judgment and decree of the trial Court was condoned. However, on going through the facts of the said case, this Court finds that the facts and circumstances are not similar and there{ore, the said decision is not applicable C R l'.No. 1782 o12025 l0 '\,i lI. In the case of Bharat Karla Vs. Raj Kishan (_.habra (g supra), the delay in filing the written srarement therein was Ir.)3 days and the Co.ft has held that the time limit for filing of trrc rvritlen statement under Order 8 Rule I of CpC is not mandatory. .l.hcrefbre, the said judgment is also not applicable to this case.

12. In the case of Mewa Singh Vs. Brahma Nand (10 supra), rhe I{on'ble Suprente Court was considering the case ol' arnendment of plaint under the provisions of order 6 Rute r7 of cpc and not with regard to condonation of delay. However, the respondcnts are relying upon the observation therein that after accepting the costs made by thern, the petitioner is estopped from questioning the irnpugned order. However, in this case, the petitioner has submitted that he has accepted the costs only under protest and therefore, the said judgrnent woulcl not be applicable to the case on hand.

13. In the case of Sohan Lal Vs. Dhari Mal_lshar Das (l I supra), the judgment in the case of Mewa Singh Vs. Brahma Nand (10 supra) was refe.red to but the facts and circumstances are not simirar and th;xefore, the said .iudgment is nor applicable. C.R.P.No.l782 oi202i

14. In the case of M.K.Prasad Vs. P.Arumugam (12 supra), the Hon'ble Supreme Court was considering the case of setting aside of the ex partedecree and judgment and condonation of the delay in filing the application for setting aside the ex parte decree. After observing that the petitioner therein has come to know about the passing ofthe decree only when he received the notice for execution proceedings initiated by the respondent in Execution Petition, the detay was condoned. Further, the other judgment relied upon by the respondents is in the case of Vikramaditya Bhartia Vs. DDA (13 supra), wherein it was held that acceptance of costs amounts to acceptance of the order as correct and having taken benefit of one part of the order, a party cannot turn around and say that he will also challenge the order. It was further observed that the litigant cannot be allowed to approbate and reprobate. However, in the present case, it is noticed that the defendants remained ex parte not only during the suit, but also during the EP proceedings' They appeared before the court only when arrest warrant was issued to them and they have also given an undertaking that they would not interfere with the possession of petitioner's property. Having given the undertaking, it is ( not open to the defendants to again file the application for setting aside of the ex parte decree unless bona fides of their non-appearance are \ \ C. R. t,. No. I 782 o 1202i t2 proved before the Court. The respondents have not tiled any evidence before the triar court to submit that the notices were not served oll thenl. Thc only plea taken by them is that they are uneducated and were not aware of the repercussions of non_appearance belbrc the Court. Such a plea cannot be accepted and the trial courl ought not to have condoned the delay and set aside the ex parte decree on payment of costs of Rs'5'000/- only The acceptance of the costs by the ptaintiff is under protest and that too the payment is made after the per.iod allowed by the Clourt and therefore, it cannot be considered as acquiescence on the part ol the plaintiff. I 5. The Civil Revision petition is accordingly ai lowed and the irnpugned or.der dr. 12.02.2025 is set aside and the petition in I.A.No.422 o12023 in o'S'No 2g5 0f 20220n the file of the Additionar Junior civil Judge at Gawwel stands dismissed.

16. Pending rniscellaneous petitions, if any, Petition shall stand closed. this Civil Revision SD/.A.SRE ENIVASA REDDY ANT REGISTRAR SIST \ //TRUE COPY// I SECTION OFFICER To,

1. The Additional Junior Civil J udge-cum-Add itional Judicial Magistrate of First Class at Gajwel. (}

2. One CC to SRl. P BHANU PRAKASH Advocate [OPUC] 3. One CC to SRl. K GOVIND Advocate [OPUC] A Tsra /ll-1 r-aaiaa HIGH COURT DATED:3110712025 ORDER CRP.No.1782 ot 2025 :-\- i' .-\ 2E IIJB 2M q {t' ,4. /) ,.\) ri:.' \r, ALLOWING THE CIVIL REVISION PETITION 6 p6