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Mahesh Chander Vs. Dershan Kaur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 547 of 1980
Judge
Reported in21(1982)DLT36; 1982RLR52
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 21; Limitation Act - Sections 5
AppellantMahesh Chander
RespondentDershan Kaur
Advocates: V.M. Issar and; D.L. Malhotra, Advs
Cases ReferredBanvarilal and Sons v. Union of India
Excerpt:
.....that after the dismissal of his objections on 6.7.79, he in good faith and as advised by his counsel filed a regular suit for declaration that he became owner by adverse possession and was not liable to be evicted in execution of the decree obtained by the respondent that on the objection of the respondent as to the pecuniary jurisdiction of the court the sub-judge returned the plaint for presentation to the proper court, that after return of the plaint he filed the same in the court of the district judge wherein the respondent raised the objection regarding the maintainability of the suit under o. 20.11.79 in this court, but the appeal was also dismissed on 12.12.79. he further alleges that he has been prosecuting with due diligence in good faith the said proceedings in the civil..........is included. it must thereforee, be held that section 5 of the limitation act is applicable to the appeal filed against an order on an application under o. 21 of the code. (7) the application for condensation of delay is supported by an affidavit of mahesh chander, petitioner. the reply on behalf of the respondent is however, not supported by any affidavit. it must thereforee, be held that the petitioner as advised by his counsel filed the civil suit for declaration and again after the dismissal of the suit, he filed the appeal under the advice of his counsel. but when his civil suit for declaration was held as not maintainable by this court in appeal against the order of the executing court before the adj on 13.12.79. the question for decision is : whether this mistaken advice was.....
Judgment:

Sultan Singh, J.

(1) Respondent field a suit for eviction of Anant Ram Khanna and Brothers from plot No. 59, Basti Ara Kashan Road, New Delhi, which was decreed by the Subordinate Judge, Delhi on 21.1.78. Mahesh Chander petitioner on 1.8.78 filed objections praying that the respondent be not allowed to execute the decree against him. His objections were dismissed on 6.7.79. The Court observed that no provision of law was cited by the objector in his objection petition, that O.21 R.99. and 101 was not applicable and that the objections fell under O.21 R.58 of the Code. The petitioner filed a suit for declaration on 7.7.79 for a decree that he was the owner of the plot in question and that the respondent was not entitled to dispossess him. The respondent in the written statement took an objection that the suit was not maintainable. Objection regarding pecuniary jurisdiction was also taken by the respondent. The Sub- Judge trying the suit returned the plaint for presentation to the proper Court. The plaint was refiled in the Court of the District Judge. The respondent in the written statement took the objection that the suit was not maintainable under O.21 R.101 of the Code. The Adj by his judgment and order of 20.11.79 held that the suit was not maintainable. The appellant filed the first appeal in this Court, and the same was dismissed in liming on 20.12.79 holding that the suit was not maintainable.

(2) The learned counsel for the respondent raises a preliminary objection that no revision is maintainable. Petitioner submits that it lies u/s 115, CPC. [This section is then reproduced].

(3) The High Court under this section is empowered to call for the record of any case which has been decided by any Court subordinate to it and in which no appeal lies thereto. The Explanationn added to this section clarifies that the word 'case decided' includes any order deciding an issue in the course of a suit or other proceeding. Thus when the Adj decided the application for condensation of delay, he decided the issue regarding condensation of delay in filing the appeal and thereforee revision lies. The learned counsel for the respondent however, argues that after the dismissal of application for condensation of delay, the appeal itself was dismissed and that the judgment of the ADJ. amounts to a decree on appeal and as such the appellant ought to have filed second appeal. The learned counsel for the petitioner however, submits that the revision lies u/s 115 of the Code against the order dismissing his application for condensation of delay, besides his right to file an appeal against the judgment and decree dismissing his appeal is barred by time. In Siri Krishan Bhardwaj v. Manohar Lal : AIR1977Delhi226 which was a case under Order 37 of the Code, it has been held that where leave to defend is refused and a decree has also been passed, a revision by the defendant challenging the order refusing leave would be maintainable u/s 115 of the Code. The D.B. has further observed that if the impugned order is reversed or modified the consequential order or decree will also have to be modified or directions will have to be given that the same is of no effect. In Major S.S. Khanna v. Brig. F.J. Dillon, : [1964]4SCR409 it has been held that the expression 'case decided' includes a part of a case, and that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in a suit. The order dismissing the application for condensation of delay is not appealable and thereforee revision u/s 115 of the Code lies.

(4) The next objection is that the petitioner has only filed the certified copy of the order of ADJ. dt. 31.5.80 & has not filed the certified copy of the order dt. 6.7.79 of the executing Court. He says that filing of the certified copy of the executing Court is necessary and relies upon Shafiq Ahmed v. Shah Jehan Begam, 1981 R.L.R. 363. In that case revision was filed against an order under Order 39 of the Code. The trial Court had dismissed the injunction application. The appeal was dismissed and in the revision, order of the trial Court and the order of the first appellate Court were in dispute and thereforee, in view of the provisions contained in Rule 7 Chapter 1-A Volume 5 of the Rules and Orders of the Punjab High Court as applicable to this Court, it was held that filing of the copy of the order of trial Court was essential and without the filing of that, the revision was not competent. In the present case, however, the position is entirely different. The revision has been filed against the order of the Adj dismissing the application for condensation of delay. The order of the trial Court is not relevant at all for the purposes of deciding this revision petition. It is thereforee, held that filing of the certified copy of the order of executing Court dt. 6.7.79 is not necessary and that the revision has been properly filed with the certified copy of the impugned order dt. 31.5.80. The next objection is that the memorandum of Revision is against the order dismissing the appeal. The memorandum state that application u/ss. 5 and 14 was dismissed and that appeal was also dismissed on the solitary ground of being time barred. The impugned order in fact incorporates two orders. The first order dismisses the application for condensation of delay and the second dismisses the appeal as barred by time. The revision is against the first order dismissing the application for condensation of delay. There is no merit in this objection.

(5) The next question for determination is : Whether there was sufficient cause for condensation of delay in filing the appeal before the first appellate Court The petitioner in his application has alleged that after the dismissal of his objections on 6.7.79, he in good faith and as advised by his counsel filed a regular suit for declaration that he became owner by adverse possession and was not liable to be evicted in execution of the decree obtained by the respondent that on the objection of the respondent as to the pecuniary jurisdiction of the Court the Sub-Judge returned the plaint for presentation to the proper Court, that after return of the plaint he filed the same in the Court of the District Judge wherein the respondent raised the objection regarding the maintainability of the suit under O. 21 R 101 of the Code, that the Adj after hearing the parties by his judgment 20.11.79 held that the suit was not maintainable. The petitioner further makes an averment that according to the advice of his counsel, he filed an appeal against the order of dt. 20.11.79 in this Court, but the appeal was also dismissed on 12.12.79. He further alleges that he has been prosecuting with due diligence in good faith the said proceedings in the civil suit, that there is sufficient cause for condensation of delay in filing the appeal. The respondent in reply submitted that sections 5 and 14 of the Limitation Act were not applicable. It was denied that the suit and the appeal were filed in good faith, that the objection regarding non maintainability of the suit under 21 R 101 was taken at the earliest before the trial Court, that ignorance of law on the part of the Advocate was no excuse, that there was no sufficient cause for condoning the delay. The Adj dismissed the application.

(6) Section 14 of the Limitation Act applies to a suit or an application. It does not apply to appeal. This section provides for exclusion of time spent bona fide in a Court having no jurisdiction. Section 14 of the Limitation Act is thereforee, not applicable. Section 5 of the Limitation Act reads as under : (......) This section applies to all appeals and all applications except an application under Order 21 of the CPC. The learned counsel for the respondent submits that section 5 is not applicable as the appeal before the Adj arises out of an order on the application under 0. 21 of the Code. It is correct that the application under O. 21 of the Code was filed before the executing Court but the bare reading of this section makes it clear that it applies to all appeals. Obviously the appeal against an order on the application under Order 21 of the Code is included. It must thereforee, be held that section 5 of the Limitation Act is applicable to the appeal filed against an order on an application under O. 21 of the Code.

(7) The application for condensation of delay is supported by an affidavit of Mahesh Chander, petitioner. The reply on behalf of the respondent is however, not supported by any affidavit. It must thereforee, be held that the petitioner as advised by his counsel filed the civil suit for declaration and again after the dismissal of the suit, he filed the appeal under the advice of his counsel. But when his civil suit for declaration was held as not maintainable by this Court in appeal against the order of the executing Court before the Adj on 13.12.79. The question for decision is : Whether this mistaken advice was honest and amounts to sufficient cause for condensation of delay.

(8) The order of the executing Court is dt. 6.7.79. Certified copy of this order was applied on 7.7.79 and the same was ready for delivery 18.7.79. The period of limitation for filing on the appeal is 30 days. After excluding the time spent in obtaining the certified copy the limitation for filing the appeal expired on 17.8.79. The appeal in fact was filed on 18.12.79. Thus the petitioner has to explain his diligence during the period from 17.8.79 to 13.12.79. It has been held in Ramlal v. Rewa Coalfields, : [1962]2SCR762 that the words 'sufficient cause' should receive liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. It was also held that in showing sufficient cause for condoning the delay, the party is called upon to explain the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. In Matu Din v. A. Narayanan : [1970]2SCR90 it has been observed, 'The law is settled that mistake of Counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such an laches on the part of the litigant or an attempt to save limitation in an underhand way.' In that case there was nothing to show that error of counsel was on account of any mala fide motive. The Court, thereforee, condoned the delay. The counsel for the appellant in that case before the Supreme Court was an Advocate of 34 years standing but the Court after taking into consideration the facts condoned the delay on the ground that there was no mala fide motive. In The State of West Bengal v. The Administrator, : [1972]2SCR874a it was held that persual of different remedy than appeal on wrong advice by counsel constitutes sufficient case within section 5 of the Limitation Act. It was also observed that if a party had acted in a particular manner on a wrong advice given by his Legal Advisor, he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause u/s 5. In Kunwar Rajendra v. Rajeshwar Ball , the delay was condoned on the ground that the appellant appealing within limitation acted on mistaken but honest advice of his counsel. The appeal was dismissed as the same was not maintainable in the Court of the District Judge. He thereafter filed an appeal in the Chief Court supported by an application u/s 5 of the Limitation Act and the delay was condoned on the ground that it was a mistake committed on the honest advice of a counsel.

(9) The learned counsel for the respondent refers to Rabindra Nath v. Sivakami, : AIR1972SC730 where it has been observed that proceedings contrary to a clearly expressed provision of law cannot be regarded as proceeding in good faith. There the question was for exclusion of time spent in prosecuting previous proceedings in good faith u/s 14 of the Limitation Act. I have already observed that section 14 of the Limitation Act is not applicable to the facts of the present case and thereforee, this judgment of the Supreme Court in my view is not applicable. The learned counsel next refers to Banvarilal and Sons v. Union of India, : AIR1973Delhi24 where the delay was not condoned on the mistaken advice of the counsel on the ground that a very able counsel of long standing gave opinion contrary to the latest and widely known pronouncement of law by Supreme Court and High Court. In the facts and circumstances of that case the Court had concluded that the mistake was not bona fide and thereforee, the delay was not condoned. The sole question for decision is : Whether the advice in the present case was honest and not mala fide The executing Court in its order has observed that the objections were under O.21 R.58 and that O.21 R.99 and 101 of the Code was not applicable. This was a wrong observation. O.21 R.58 applies to objections against attachment of movable property. O.21 R.99 and 101 applies to objections against wrongful dispossession by the decree-holder or the auction purchaser. The present objections are against dispossession from immovable property and are covered by O.21 R.97 read with R.99 and 101 of the Code. The contention of the petitioner is that he is not liable to be dispossessed in execution of the decree obtained by the respondent. The Civil Procedure Code was amended by Act 104 of 1976 wherein R.97 to 103 of O.21 of the Code were substituted. Under the unamended Code if a third party was threatened or dispossessed and his objections were dismissed by the executing Court, a right was conferred upon him to institute a suit for declaration as contemplated under the unamended R.103 of O.21 of the Code. The old R.103 of O.21 of the Code was (.........)

(10) Now after amendment rule 101 has been substituted with effect from 1.2.77 and it reads as under :

'All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.'

(11) Reading of this rule shows that there may be an ambiguity in the mind of the counsel whether a suit by a third party was maintainable. As already observed, the only remedy under the unamended Code was to file a separate suit. There was no provision of any appeal but under the amended R.103 of O.21 of the Code it has been provided that the order made on an application shall be treated as a decree for purposes of appeal. The counsel for the respondent in reply to the application for condensation of delay has pleaded that ignorance on the part of the appellant and his counsel Shri Anoop Chand Sharma and Shri V.M. Sharma was not a sufficient cause. I do not agree with this view. With no disrespect to any learned counsel, I am of the view that in spite of the change in law by substitution of the provisions of R.101 onwards of O.21 of the Code, many lawyers have been still under the impression that if such an application of a third party is decided by the Executing Court the remedy is not by way of appeal but by way of a separate suit. It was thus under this honest belief of the counsel for the petitioner that in spite of the objection by the respondent when the suit for declaration was dismissed by the trial Court, he filed an appeal in this Court and when this Court held that the suit was not maintainable by order dt. 12.12.79, the petitioner field the appeal at the earliest on 13.12.79. The advice of the counsel for the petitioner may be taken to be a wrong advice. But it appears that it was honest advice and not a mala fide one. No mala fidies have been alleged against the counsel. The petitioner-objector could not have taken decision whether to file a separate suit or an appeal. He depended on his lawyers. He acted bona fide on the advice of his lawyer and thereforee, filed the suit for declaration which was the remedy under the old law. In these circumstances, it cannot be said that the petitioner-objector did not act bona fide or that the advice of his legal Adviser was not bona fide. The trial Court as already stated, held that mistaken advice of counsel is rot a sufficient cause but this statement of law is not correct. Whether delay is to be condoned depends upon the facts of every case.

(12) In view of the facts of the present case I am satisfied that there was sufficient cause for not filing the appeal within time and that the petitioner is entitled to condensation of delay.


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