Dhaneshwar Mahto v. Jailal Mahto

2. The aforesaid order dated 16.07.2022 has been challenged on the ground that the petition filed under Order IX Rule 13 of CPC is after the lapse of the period of 27 years and although the said petition was coupled with the application under Section 5 of the Limitation Act but the learned Court while allowing has issued notice as to why the decree dated 17.06.1993 passed in Partition Suit No. 204 of 1991 be not quashed and set aside by condoning the delay but without issuing notice on the issue of limitation.

3. The brief facts of the case as per the pleading made in the petition which requires to be enumerated, reads as under: The original plaintiff, namely, Devi Mahto, filed a Partition Suit No.204 of 1991 against the defendants in the court of Munsif, Giridih praying therein a decree claiming partition of 8 annas share in the suit property fully described in the schedule to the plaint and in the said case, summons were issued to the defendants and the defendants refused to receive and same and affidavit of process server was filed on 29.09.1992 and the service of notice upon the defendants were held proper and valid. The learned trial court, after considering the material on the record, decree the suit and accordingly preliminary decree was prepared on

09.07.1993 and final decree was also made on 04.10.2019 and the plaintiffs filed execution case on 02.02.2021 for execution of the final decree passed in Partition Suit No. 204 of 1991. Thereafter, the defendants filed Misc. Case No. 04 of 2020 before the Civil Judge, Junior Division, Giridih under Order IX Rule 13 of CPC along with a petition under Section 5 of the Limitation Act, 1963 for setting aside the ex-parte preliminary decree and all subsequent orders on the ground of non-service of summons. It is the case of the petitioner that no notice was issued to the petitioner in Misc. Case and the learned court without hearing the plaintiffs has 3 passed the order for condonation of delay in filing the misc. case, the impugned order herein.

4. It appears from the factual aspect that a partition suit was filed in the year 1991 being Partition Suit No. 204 of 1991. Decree was passed on

17.06.1993 said to be preliminary. Thereafter, final decree was passed on

04.10.2019. It is the case of the applicants who have filed petition under Order IX Rule 13 of CPC, the defendant to the suit that the day when the process was executing the final decree dated 04.10.2019 has been taken recourse, then the defendant came to know about the preliminary decree passed in the year 1993 which according to the defendants, the respondents herein, that the said decree was ex-parte, hence, the petition was filed under Order IX Rule 13 of CPC for setting aside the ex-parte decree dated 17.06.1993 passed in Partition Suit No. 204 of 1991. It further appears that the petition under Order IX Rule 13 of CPC was filed along with application under Section 5 of the Limitation Act for seeking prayer therein to condone the delay of 27 years in filing the aforesaid petition under Order IX Rule 13 of CPC. The plaintiff, the petitioner to this petition, is having grievance that the executing court has issued notice after condoning the delay of 27 years but without issuing notice upon the issue of limitation as would appear from the order dated 16.07.2022, hence, petition under Article 227 of the Constitution of India assailing the said order.

5. Mr. Sandeep Verma, learned counsel for the petitioner has taken the ground that the issue of limitation since is the mixed question of law and fact, hence, a notice was required to be issued by the concerned executing court before condoning the delay but no effort has been taken as would appear from the order dated 16.07.2022.

6. It has further been submitted by referring to the position of law that if any petition is filed for setting aside the ex-parte decree beyond the period of limitation, then a right will be said to be accrued in favour of the other side and in that view of the matter, it was the bounded duty of the concerned 4 court to issue notice upon the plaintiff so as to provide an opportunity of hearing before passing an order for condonation of delay but the same having not been done, the order dated 16.07.2022 is bad in the eyes of law.

7. While on the other hand, Mr. R.N. Sahay, learned senior counsel assisted by Mr. Yashvardhan, learned counsel for the respondents/opposite parties has submitted that no prejudice has been caused even if no notice has been issued under Section 5 of the Limitation Act before dealing and condoning the said delay since it is the admitted fact as would appear from the impugned order dated 16.07.2022 that the decree passed in the year 1993 is ex-parte. The submission, therefore, has been made that when the fact has been admitted to the effect that the decree dated 17.06.1993 is ex-parte, wherein no notice was issued, hence, if on that pretext, a petition was filed under Order IX Rule 13 of CPC for setting aside the ex-parte decree, and in that eventuality, if the learned court has condoned the delay by allowing the application filed under Section 5 of the Limitation Act without issuing notice upon the plaintiff, the same cannot be said to suffer from error, hence, the instant petition lacks merit and as such, the same is fit to be dismissed.

8. This Court has heard the learned counsel for the parties, gone across the pleading made in the petition as also the finding/reasoning referred in the impugned order dated 16.07.2022.

9. This Court, on the basis of the argument advanced on behalf of the parties, has gathered that the petitioner has raised the issue as to whether while allowing the application filed under Section 5 of Limitation Act, a notice is required to be issued upon the other side, the plaintiff herein.

10. This Court, before answering the said issue, deems it fit and proper to refer the position of law so far as the issue of limitation is concerned.

11. The law is well settled that the issue of limitation is mixed question of law and fact. It is further settled that if the statutory command is to make an application within stipulated period and if not filed within the said statutory period, then it is the requirement of law to file petition coupled with the 5 application under Section 5 of the Limitation Act so as to show the sufficient cause for the purpose of condoning the delay. The sufficient cause is the crux of the issue basis upon which the concerned court is to take decision as to whether the reason which has been shown can be said to be sufficient cause or not. Reference with respect to the interpretation of the word ‘sufficient cause’ has been made by the Hon'ble Apex Court in Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd., (1962) 2 SCR 762, has held that merely because sufficient cause has been made out in the facts of the given case, there is no right to the appellant to have delay condoned. At paragraph-12, it has been held as hereunder:- “12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14. In the present case there is no difficulty in holding that the discretion should be exercised in favour of the appellant because apart from the general criticism made against the appellant's lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellant's application for condonation of delay only on the ground that it was appellant's duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a valid ground. Thus, it is evident that while considering the delay condonation application, the Court of Law is required to consider the sufficient cause for condonation of delay as also the approach of the litigant as to whether it is bona fide or not as because after expiry of the period 6 of limitation, a right is accrued in favour of the other side and as such, it is necessary to look into the bona fide motive of the litigant and at the same time, due to inaction and laches on its part. It also requires to refer herein that what is the meaning of ‘sufficient cause’. The consideration of meaning of ‘sufficient cause’ has been made in Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer, [(2013) 14 SCC 81], wherein, it has been held by the Hon’ble Apex Court at paragraphs 9 to 15 hereunder:- “9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336] , Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 : AIR 2011 SC 1150] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629] .)

10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”.

11. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201] .)

12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory 7 provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266: “605. Policy of the Limitation Acts.—The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” therefore, An unlimited limitation would lead to a sense of insecurity and limitation prevents disturbance or uncertainty, and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh [(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448]