1 2025:CGHC:14675 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 158 of 2024 1 - Smt. Nilima Mahakalkar W/o Late Nand Kishore Mahakalkar, Aged About 58 Years R/o Mohba Bazar, Raipur, Tehsil And District-Raipur (C.G.) ------Defendant/Appellant versus 1 - Vikas Jain S/o Late Manak Lal Jain, R/o Gudiyari, Raipur, Tehsil And Dis- trict-Raipur (C.G.) ----(Plaintiff No.1) 2 - Ashok Gelare S/o Shri Mohan Gelare, R/o Sarona Basti, Tehsil And Dis- trict-Raipur (C.G.) -----(Plaintiff No.2) ... Respondents For appellant : Mr. Ravish Verma, Adv. and Mr. Shiv Kumar Shri- vastava, Adv. For Respondents : Mr. Sangeet Kumar Kushwaha and Mr. Sudhan- shu Upadhyay, Adv. (Hon’ble Mr. Naresh Kumar Chandravanshi, J) Order on Board 25/03/2025 1. This appeal has been preferred by the appellant/defendant chal- lenging the order (Annexure A-1) dated 05-09-2024 passed in Civil MJC No. 53/2022, whereby learned 3rd Upper District Judge, Raipur (CG) has dismissed the application under Section 5 of the Limitation Act filed by the defendant, consequently application under Order 9 Rule 13 read with Section 151 of the CPC has also Digitally signed by AVANISH KUMAR PATHAK Date: 2025.04.02 10:31:08 +0530 2 been dismissed. (hereinafter, parties shall be referred as per their status before the trial Court) 2. Facts of the case in nutshell are that, respondents/plaintiffs filed civil suit against the appellant/defendant seeking possession by way of specific performance of an agreement of sale dated 2-7- 2016, by which, the defendant has allegedly agreed to sell her land measuring 7765 square feet bearing Khasra No. 786/1 situated at village Jarvay @ Hirapur, P.H. No. 103, RNM, Raipur, Tahsil and District Raipur (CG) (henceforth referred to as ‘suit land’) to the plaintiffs, which was registered as Civil Suit No. 123A/2016. After service of notice to the defendant, she entered her appearance through her counsel in civil suit, subsequently, she/her advocate remained absent, therefore, ex-parte judgment and decree (Annexure A-2) was passed against defendant on 25-11-2017. It is pleading of the defendant that, after ex-parte judgment and decree, one notice board was affixed on the suit land on 28-7-2022, then only, defendant came to know about said ex-parte judgment and decree. Thereafter, she filed application seeking certified copy of relevant documents along with judgment and decree, on 1-8-2022, which was received by her on 5-8-2022. Thereafter, she filed application under Order 9 Rule 13 read with Section 151 of the CPC along with application under Section 5 of the Limitation Act, on 12-9-2022. Learned trial Court declined to condone the delay in filing application for setting aside ex-parte judgment and decree 3 and rejected the application under Section 5 of the Limitation Act and consequently, application under Order 9 Rule 13 read with Section 151 of the CPC was also dismissed vide impugned order. Hence, this appeal. 3. Learned counsel for the appellant/defendant would submit that, in aforesaid civil suit, notice was allegedly served twice upon her nephew Ashish Rai and niece Akanksha Mahakalkar respectively, but they are neither permanent resident of the house of defendant nor they are family members of the defendant. He further submits that, one Pranav Rai, Adv. had allegedly filed Vakalatnama on behalf of defendant, but she had neither engaged that counsel nor she had signed Vakalatnama in his favour to represent her in aforesaid civil suit. Even Vakalatnama filed by Adv. Pranav Rai was containing forged signature of defendant. Such forgery committed against the defendant itself shows that, she was not aware about pendency of the civil suit and she, for the first time, came to know about the impugned judgment and decree on 28-7-2022, thereafter, she filed application to obtain certified copy of the relevant documents, which she received on 5-8-2022 and thereafter application under Order 9 Rule 13 read with Section 151 of the CPC along with application under Section 5 of the Limitation Act was filed on 12-9-2022. Thus delay in filing the application under Order 9 Rule 13 read with Section 151 of the CPC is only 46 days and after deducting the limitation to file application for setting aside ex-parte judgment and decree i.e. 30 days and period spent in 4 getting certified copy i.e. 5 days, then the actual delay is only 11 days. Thus, it cannot be said that it was a delay occurred due to malafide or bad intention of the defendant, as such, learned trial Court ought to have allowed application under Section 5 of the Limitation Act, but the same has been rejected without considering aforesaid facts in its true perspective, hence, it is bad in law. Therefore, the appeal may be allowed and application under Section 5 of the Limitation Act filed by the defendant may also be allowed and the trial Court be directed to decide the Civil MJC/application filed by the defendant under Order 9 Rule 13 read with Section 151 of the CPC on its own merit. 4. Per contra, learned counsel for the respondents/plaintiffs would submit that, notice was served to the niece of the defendant, thereafter she herself engaged Advocate Pranav Rai, who entered his appearance on behalf of the defendant on 10-3-2017 and subsequently, he remained absent on 18-5-2017. Defendant herself also did not care to attend hearing of civil suit, therefore, ex-parte proceeding was conducted against her on 18-5-2017 and ex-parte judgment and decree was rendered by the trial Court on 25-11- 2017. Since, pendency of the civil suit and rendering judgment and decree against the defendant was well within her knowledge, despite that, she filed application for setting aside ex-parte judgment and decree on 12-9-2022 i.e. after inordinate delay of about 4 ½ years of passing of impugned ex-parte judgment and decree by learned trial Court. The order impugned does not suffer 5 from perversity or illegality, therefore, the appeal is liable to be dismissed. 5. I have heard learned counsel for the parties and perused the material available on record including the record of the trial Court. 6. Perusal of record of the trial Court shows that, notice issued to defendant was never served upon her in person, rather notice was reported to be served with endorsement that - "मा. महो. दि. 8.3.17 को मौके पर महोबाबाजार जाकर (अपदित ) ्ቚतितवाी का पता लगाया, साथ में वाी गवाह भी था ्ቚतितवाी के सा. सरीक लड़की आकां्ቌा महाकालकर 26 व्ቧ# हाजिजर दिमली जिजसने नोदि&स कॉपी लेना स्वीकार दिकया एक ्ቚतित नोदि&स कॉपी ्ቚतित. के सा. सरीक लड़की पर ता. बा मा. न्या. को वापस दिकया” 7. As per Order 5 Rule 12 of the CPC, “if practicable, service of summons be served on person to the defendant or his agent.” Order 5 Rule 15 of the CPC provides that, “if defendant is absent from his residence at the time when service of summon is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him”. Order 5 Rule 2 further contemplates that, “every summons shall be accompanied by a copy of the plaint”. 6 8. In the light of aforesaid provisions, if facts of instant case are seen, then, it is found that, process server has not made any statement in service report that, when he went to the given address, at that time, whether defendant was present in the house or not and under which circumstances, summon was served to alleged “LADKI’. It is not specifically mentioned that, alleged Akanksha Mahakalkar was daughter of defendant, as while making submission, learned counsel for defendant stated that she was her niece and was not permanently residing with her. Perusal of endorsement made on the notice also does not shows that copy of plaint was served along with service of alleged notice. Therefore, it cannot be held that, service of summons was done properly in accordance with law. 9. It is also apt to be noted here that, in back side of summons, signature of independent witnesses was not obtained, rather, only plaintiff’s/his witnesses signature was obtained. All these discrepancies in service report makes it suspicious that notice was duly served to the defendant. 10. As per impugned order, Vakalatnama was filed on behalf of defendant by an Advocate namely Pranav Kumar Rai, but that Vakalatnama does not contain any date. Even case number or description of Court where the case was pending, is also not mentioned in the notice. Defendant has pleaded that, she has never engaged said Advocate Pranav Kumar Rai to represent her in civil suit, rather she has never met him. As per order sheet, said Advocate Pranav Kumar Rai appeared in three hearings, thereafter 7 he remained absent without informing defendant, as provided under Order 3 Rule 4(2) of the CPC. All aforesaid facts support contention of learned counsel for defendant that, notice has not been duly served on the defendant in accordance with law and service report has been obtained by deceiving her. 11. When issue with regard to filing application belatedly with malafide or with ulterior motive is seen, then it is found that, since notice was not served in accordance with law upon the defendant and she has also not engaged said Advocate Pranav Kumar Rai, then, it is apparent that, filing of civil suit No. 123A/2016 by plaintiff against defendant was not in the knowledge of defendant, as also, rendering ex-parte judgment and decree was not in her knowledge and she came to know about said ex-parte judgment and decree, only when notice board was affixed on disputed land on 28-7-2022 claiming it to be decretal property of plaintiffs. Thereafter, defendant filed application for getting certified copy of relevant documents on 1-8-2022, which was received to her on 5-8-2022, thereafter she filed application under Order 9 Rule 13 read with Section 151 of the CPC, along with application under Section 5 of the Limitation Act, on 12-9-2022, thus she filed application for setting aside ex-parte judgment and decree after 47 days of her knowledge about ex- parte judgment and decree. After deducting 5 days spent in supply of certified copy and statutory period of 30 days, the actual delay in filing application for setting aside ex-parte judgment and decree is 12 days. Such short delay cannot be supposed to be malafide or 8 deliberate. 12. It is settled preposition of law that, rules of limitation are not meant to destroy legal right of a party until and unless, the same is with malafide intention or ulterior motive or deliberate. 13. The Supreme Court in N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] observed that the sufficient cause has to be construed liberally especially when the delay is not deliberate and mala fide. Paras 11 & 12 of the said decision are as under: “11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time newer causes would sprout up necessitation newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be 9 kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari {AIR 1969 SC 575) and State of West Bengal Vs. Administrator, Howrah Municipality (AIR 1972 SC 749).” 14. In B.S. Sheshagiri Setty and others Versus State of Karnataka and others reported in (2016) 2 SCC 123, their Lordships of the Supreme Court has held that when what is at stake, is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. It is apt to reproduce the following observations:- "28. If a statute does not prescribe the time limit for ex- ercise of revisional power, it must be exercised within a reasonable time frame. In the instant case, it is evident that constant litigation has been carried on by the appel- lants, and therefore they cannot be accused of suddenly waking up after 13 years to claim their land. Further, in the context of limitation, it has been held by this Court in a catena of cases that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is mis- carriage of justice caused to a public litigant. " 15. Having considered the facts of instant case in the light of law laid 10 down by Hon’ble Apex Court, since notice was not duly served to the defendant, she has also not engaged said counsel Pranav Kumar Rai and immediately after getting knowledge of ex-parte judgment and decree, defendant filed application under Order 9 Rule 13 read with Section 151 of the CPC along with application under Section 5 of the Limitation Act only with delay of 12 days. Therefore, having considered aforesaid facts, leaned trial Court ought to have allowed application under Section 5 of the Limitation Act condoning the delay in filing the application under Order 9 Rule 13 read with Section 151 of the CPC, but learned 3rd Upper District Judge, Raipur dismissed the application for condonation of delay, which is found to be perverse and illegal. Hence the order impugned (Annexure A-1) dated 5-9-2024 deserves to be set aside. 16. Consequently, this misc. appeal is allowed. The impugned order (Annexure A-1) dated 5-9-2024 passed by the 3rd Upper District Judge, Raipur in Civil MJC No. 53/2022 is set aside. Application under Section 5 of the Limitation Act filed by the appellant/ defendant for condoning the delay in filing the application under Order 9 Rule 13 read with Section 151 of the CPC is allowed and delay in filing aforesaid application is condoned. The 3rd Upper District Judge, Raipur is directed to restore the Civil MJC No. 53/2022 in its original number and decide the application filed by the appellant/defendant under Order 9 Rule 13 read with Section 151 of the CPC on its own merit in accordance with law. 17. It is further observed that, aforesaid Civil MJC be decided within 90 11 days from the date of submission of copy of this order. Counsel for both the parties are also directed to cooperate with the trial Court in expeditious disposal of the case. 18. Pending interlocutory application(s), if any, also stands disposed of. No order as to cost(s). Sd/- (Naresh Kumar Chandravanshi) JUDGE Pathak