REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  10379     OF 2018 (Arising out of SLP(C) No. 8586 of 2016)

MOHD. SAHID AND OTHERS       ….Appellants

VERSUS

RAZIYA KHANAM (D) THR. LRs  AND ANOTHER                 ….Respondents

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the order dated 15.10.2015 passed

by  the  High  Court  of  Judicature  at  Allahabad in  Second  Appeal

No.819 of 2015 in and by which the High Court affirmed the order of

the  First  Appellate  Court  dismissing  the  application  filed  under

Section 5 of the Limitation Act and declining to condone the delay of

349 days in filing the appeal.

3. Respondent No.1-Raziya (since dead) filed a Civil Suit No.591

of  1979  against  the  appellants  No.1  to  3  for  cancellation  of  sale

deeds dated 17.02.1979 and 17.05.1979 in favour of the appellants

and for relief of permanent injunction against them over the suit land.

Respondent No.1-Raziya (since dead) contended that appellants No.

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1 to 3 forged documents and executed a bainama of the suit property

in their favour on 17.02.1979.  Some part of the suit property was

also sold to appellant No.4-Mahesh by sale deed dated 17.05.1979.

The respondents resisted the suit contending that respondent No.2-

Hadisunnissa executed a Hibanama in favour of respondent No.1-

Raziya Khanam (since dead) on 27.02.1979 of  her properties and

building situated in the village Nadva Khas and Revri Dihi and other

villages on 27.02.1979 in the consolidation office.   

4. The said Suit  No.591 of  1979 was decreed on 16.04.1981

against appellants No.1 to 3 with the observation that they had been

properly served and had appeared and sought time for filing written

statement; but despite ample time being given, they had not filed

written statement.

5. In appeal by appellants, the First Appellate Court noted that

appellant No.3-Mohd. Asid was a minor at the time when the original

suit  was  filed  and  the  proceeding  for  appointment  of  his  legal

guardian has not  been completed in accordance with law and in

such circumstances, it could not have been possible to have proper

service  upon  appellant  No.3-Mohd.  Asid.   After  considering  the

submissions of appellants No.1 to 3, the First Appellate Court  vide

order dated 29.11.1985 allowed the appeal and remitted the matter

back to the trial court with a direction to rehear both the parties and

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decide  the  case  on  merits  with  costs  of  Rs.50/-  payable  by  the

appellants and filing written statement on or before 03.01.1986.

6. Respondent  No.1-Raziya Khanam (since  dead)  filed  a  Writ

Petition(C)  No.19550 of  1985 before  the  High  Court  against  the

order  of  the  First  Appellate  Court  in  which  interim  order  dated

20.02.1985 was passed by the High Court.  The said writ petition

remained pending for nearly fifteen years.  In the said writ petition,

the appellants  herein  were neither  served nor  they entered their

appearance.  The High Court noted that the First Appellate Court

recorded a finding that the appellants were not served with notice

and rightly set aside the decree dated 16.04.1981 and remanded

the  matter  back  to  the  trial  court.   The  said  writ  petition  was

dismissed  on  20.02.2001  and  order  of  interim  stay  dated

20.02.1985 was vacated.

7. The order sheet of the trial court dated 30.05.2011 indicates

the order dated 20.02.2001 passed in Writ Petition (C) No.19550 of

1985 was produced before the trial court.  The fact that the order in

the  said  writ  petition  was  placed  before  the  High  Court  on

30.05.2011 is  clear  from the order  sheet  of  the trial  court  dated

04.03.2011  which  reads  that  “Proceeding  of  suit  is  stayed  by

Hon’ble  Allahabad  High  Court  Record  may  be  produced  on

30.05.2011 for further orders.”   Before the trial  in Suit  No.591 of

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1979  was  taken  up,  substitution  applications  No.113K2,  114G2,

115G2, 116G2 and 117G1 were taken up and orders were passed

on various dates.

8. Though  the  appellants  claimed  that  they  were  not  present

before the trial court in Suit No.591 of 1979, the order sheet dated

14.10.2011 passed by the trial court in Suit No.591 of 1979 notes

the presence of  both the parties in the trial  court  on 14.10.2011

when the submissions of the parties regarding preliminary issues

were considered and subsequent date i.e. 18.10.2011 was fixed for

cross-examination of PW-1 which according to the respondents, the

appellants had knowledge about the same.   

9. Subsequently, the appellants-defendants did not appear in the

suit  and the suit  was decreed  ex-parte on 10.05.2012.  The first

appellant-Mohd. Sahid preferred Civil Appeal No.131 of 2013 with

application for condonation of delay of 349 days under Section 5 of

the Limitation Act.  In the said application for condonation of delay,

the appellants averred that they came to know about the judgment

of the trial court dated 10.05.2012 for the first time on 06.05.2013

when they went to attend the hearing in another case before the

Sub-Divisional Magistrate and at that time, a constable from Police

Station  Ghosi  informed  him  about  the  said  judgment  dated

10.05.2012.   According  to  the  appellants,  after  receipt  of  such

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information,  they  contacted  their  counsel  over  telephone  for

inspection  of  case  file  and  after  inspection  on  10.05.2013,  they

applied for copy of the same which was received on 18.05.2013 and

the appeal was filed on 22.05.2013 which caused delay of 349 days

in filing the appeal.

10. The application for condonation of delay was dismissed by the

First  Appellate Court  vide order dated 05.08.2015 on the ground

that  the  appellants  had  knowledge  about  the  judgment  dated

10.05.2012 passed by the trial court in Suit No.591 of 1979 and that

the appellants  were not  vigilant,  rather  they had been negligent.

Pointing out  that  the appellants made incorrect  averments in  the

application and that no sufficient and reasonable cause has been

shown by  the  appellants  for  the  delay,  the  First  Appellate  Court

dismissed the application.   In  appeal  before the High Court,  the

High  Court  noted  that  the  reasons  stated  in  the  application  for

condonation of delay are self-contradictory.  The High Court referred

to the order sheet of the trial court dated 14.10.2011 which notes

the presence of both the parties in the trial court on 14.10.2011 and

the respondents-plaintiffs evidence in the form of affidavit and that

the matter was fixed on 18.10.2011 for cross-examination of PW-1

which clearly shows that the appellants had full  knowledge about

the  proceedings  in  the  Suit  No.591 of  1979 and also  about  the

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dismissal of the Writ Petition (C) No.19550 of 1985.  The High Court

dismissed the Second Appeal No.819 of 2015 observing that the

order of the First Appellate Court does not suffer from any factual

error or illegality and that no substantial question of law arises in the

Second Appeal.   

11. We have heard Mr.  Yatindra Singh,  learned senior  counsel

appearing on behalf of the appellants and Mr. U.K. Unniyal, learned

senior  counsel  appearing on behalf  of  the respondents at  length

and perused the impugned order and materials placed on record.

12. In  the  application  No.4-C  for  condonation  of  delay,  the

appellant No.1-Sahid has stated that he got knowledge about the

decree and order dated 10.05.2012 passed in Suit No.591 of 1979

when the applicant  had gone in  pairvi  on 06.05.2013 before  the

Sub-Divisional  Magistrate  and  a  constable  of  the  Police  Station,

Tehsil Ghosi gave information about the order. The appellant further

averred that on 06.05.2013, he had left to Lucknow from Ghosi and

on 09.05.2013 he contacted his counsel and thereafter applied for

certified copy which was received on 18.05.2013 and the appeal

was filed on 22.05.2013 which caused the delay of 349 days in filing

the appeal.

13. After  referring  to  the averments  in  the application  4-C,  the

High Court noted that the appellant-defendant was in Lucknow from

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03.05.2013 to  09.05.2013 and therefore,  it  was quite  improbable

that the constable of the Police Station, Ghosi, District Mau could

have informed the appellant about the judgment of the trial court in

Tehsil  Ghosi  on  06.05.2013 and the said  contradictory  averment

was not explained by the appellants during arguments.

14. In his application 4-C filed under Section 5 of the Limitation

Act,  the  appellant  has  not  stated  that  he  was  in  Lucknow from

03.05.2013  to  09.05.2013.   Hence,  the  observation  of  the  High

Court in para (6) does not reflect the averments in the affidavit of

appellant Sahid.  It was in this context, notice was issued by this

Court  vide order dated 11.04.2016 on the ground that “the factual

position depicted in paragraphs (6) and (7) of the impugned order is

false and incorrect.”   The observation of  the High Court  that  the

appellant-defendant was in Lucknow from 03.05.2013 to 09.05.2013

though  may  not  reflect  the  averments  in  the  application  for

condonation of delay, in our view, does not affect the correctness of

the impugned order.

15. The  statement  of  the  appellants  that  they  got  knowledge

about the judgment of the trial court in Suit No.591 of 1979 dated

10.05.2012 for the first time on 06.05.2013 is incorrect.  As pointed

out  by  the  First  Appellate  court  as  well  as  by  the  High  Court,

certified copy of the order sheet dated 11.10.2011 and 14.10.2011

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in  Suit  No.591 of  1979 shows that  on  11.10.2011,  parties  were

present in the trial court and the attention of the court was drawn by

the  respondents-plaintiffs  regarding  the  order  passed  in  Writ

Petition(C)  No.19550 of  1985 (20.02.2001).   On 11.10.2011,  the

trial court heard the parties for deciding the issues No.2 and 3 and

the order sheet indicates the presence of the parties as seen from

the following:-

“Order dated 11.10.2011

…………

Disposal of Issue Nos.2 and 3

Today the parties made the prayer for deciding the issues No.2 and 3 after hearing the same.  On the prayer of the parties, both parties are heard on the issues No.2 and 3 with respect to valuation and court fee paid and the record is perused.

In this case the issue No.2 was framed – “Whether valuation of this suit is shown lesser?” and the issue No.3 was framed – “Whether the court fee paid by plaintiff is deficient?”

No such fact was put up by the parties so that it could appear that valuation of the suit was not fixed correctly and the court fee paid was deficient.  So in view of the aforesaid facts and circumstances the issues No.2 and 3 are decided in negative.  The record be put up for recording of the evidence by the plaintiff on 14.10.2011.”  

Thereafter, the case was put up for recording of evidence by the

respondent-plaintiff  on 14.10.2011.  As per the order sheet dated

14.10.2011, the case was called out and the parties were present

and the case was again adjourned to 18.10.2011.  On 18.10.2011,

the affidavit of the respondent-plaintiff  was filed and thereafter, in

spite  of  several  opportunities,  the  appellants-defendants  did  not

appear and the suit was decreed  ex-parte on 10.05.2012.  In the

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said judgment dated 10.05.2012, the trial court has recorded that in

spite of opportunities, the appellants-defendants did not appear as

seen from the following:-

“In the present case, the defendants have filed their objection at 17  A1  but  they  had  remained  absent  at  the  time  of  adducing evidence.  Therefore, on 09.11.2011, their opportunity of adducing evidence was closed and they were declared ex-parte and ex-parte proceeding continued.

………..

In  support  of  their  pleadings,  the  plaintiffs  had  examined  PW-1 Seraj  Ahmmed,  PW-2  Firoz  Alam  and  PW-3  Salauddin  as witnesses.   The evidences  on  affidavit  of  these witnesses have been placed on records as the Document No.120A2, 128A2 and 129A2.   The  defendants  did  not  remain  present  for  the  cross- examination of the aforementioned witnesses………”  

16. After  referring  to  the  order  sheets  dated  11.10.2011  and

18.10.2011  and  the  subsequent  hearings  in  the  Suit  No.591  of

1979, the First  Appellate Court  as well  as the High Court  rightly

recorded concurrent findings that the appellants had full knowledge

about the proceedings of the original Suit No.591 of 1979 and also

about  the  vacation  of  stay  order  passed  in  Writ  Petition(C)

No.19550 of 1985.  The High Court has rightly observed that the

appellants-defendants have not come out with the correct facts.

17. The  averments  in  the  application  that  the  appellants  got

knowledge  about  the  judgment  in  Suit  No.591  of  1979  dated

10.05.2012 only on 06.05.2013 through a constable is incorrect.  On

behalf of the respondents, it is stated that in the proceedings before

the Sub-Divisional Magistrate, the appellants filed the application on

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23.11.2012 (Objection Paper No.23C2) wherein the judgment dated

10.05.2012 of the civil court was mentioned and it was even averred

that the said judgment was passed wrongly.  It is thus clear that the

appellants had knowledge about the judgment and decree in Suit

No.591 of  1979 even on  23.11.2012.   While  so,  the  appellants-

defendants have filed application with incorrect averments that they

got knowledge about the judgment and decree only on 06.05.2013

at Tehsil Ghosi when constable of the Police Station gave them the

information.  The High Court rightly rejected the contention of the

appellants  that  they  came  to  know  about  the  judgment  dated

10.05.2012 in Suit No.591 of 1979 only on 06.05.2013 through a

constable of the Police Station in Tehsil Ghosi, District Mau when he

had gone there to Pairvi in another case.

18. It is also pertinent to note that in Suit No.591 of the year 1979,

the appellants have not filed the written statement in spite of ample

opportunities  given  and  earlier  the  suit  was  decreed  ex-parte

against  them on 16.04.1981.   The appellants  filed  appeal  in  CA

No.395 of 1981 and it was dismissed for default and the same was

restored on 14.11.1983.  By order dated 29.11.1985, CA No.395 of

1981 was allowed and the  ex-parte decree dated 16.04.1981 was

set aside and the matter was remanded back for decision on merits

afresh with condition of depositing cost of Rs.50/-.  Of course, Writ

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Petition(C) No.19550 of 1985 was filed challenging the same; the

suit being of the year 1979 and earlier being set  ex-parte and the

matter having been remitted at the instance of the appellants, the

appellants ought to have been vigilant in pursuing the matter.   

19. The order sheet and other materials placed on record clearly

show that the appellants had full knowledge about the proceedings

of the Original Suit No.591 of 1979 and also about the disposal of

the Writ Petition(C) No.19550 of 1985 and the appellants have filed

application for condonation of delay with incorrect facts.  Both the

First  Appellate  Court  and  the  High  Court  recorded  concurrent

findings  that  the  appellants  have  filed  the  application  for

condonation  of  delay  with  incorrect  facts  and  were  negligent  in

pursuing the matter and rightly refused to condone the delay.  We

do  not  find  any  perversity  or  infirmity  in  the  impugned  order

warranting interference and the appeal is liable to be dismissed.

20. In the result, the appeal is dismissed.  No costs.

…………….……………J.  [R. BANUMATHI]

…………….……………J.      [INDIRA BANERJEE]

New Delhi; October 10, 2018

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