# Neelesh Agarwal v. Ishaan Buildtech, Rampur Garden, Bareilly & Ors. 470 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 8 ILRA 469
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-09
- **Case number:** Matters Under Article 227 No. 5153 of 2019
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neelesh-agarwal-v-ishaan-buildtech-rampur-garden-bareilly-ors-470-indian-law-46054
- **Pages:** 26

## Headnote

A. Civil Law - Civil Procedure Code -
Limitation Act, 1963 - Ss. 5 and 14 -
Condonation of Delay - Liberal Approach
- Substantial Justice - There should be a
liberal,
pragmatic,
justice-oriented,
nonpedantic approach while dealing with
an application for condonation of delay,
for the courts are not supposed to legalise
injustice but are obliged to remove
injustice - The terms 'sufficient cause'
should be understood in their proper
spirit, philosophy - Substantial justice
being paramount and pivotal the technical
considerations should not be given undue
and uncalled for emphasis. (Para 45)
Petition dismissed (E-1)
Cases relied on :-

## Text

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8 All. Neelesh Agarwal Vs. Ishan Build Tech., Rampur Garden, Bareilly & Ors.
469
special leave granted to the appellant
ought to be revoked. Accordingly, special
leave is revoked and the appeal is
dismissed. The appellant will pay the
costs of the respondent."

46. More recently, in Ramjas
Foundation v. Union of India, (2010) 14
SCC 38 the case law on the subject was
discussed. It was held that if a litigant
does not come to the Court with clean
hands, he is not entitled to be heard and
indeed, such a person is not entitled to
any relief from any judicial forum. It was
said: (SCC p.51, para 21)

"21. The principle that a person
who does not come to the court with
clean hands is not entitled to be heard on
the merits of his grievance and, in any
case, such person is not entitled to any
relief is applicable not only to the
petitions filed under Articles 32, 226 and
136 of the Constitution but also to the
cases instituted in others courts and
judicial forums. The object underlying
the principle is that every court is not
only entitled but is duty-bound to protect
itself from unscrupulous litigants who do
not have any respect for truth and who
try to pollute the stream of justice by
resorting to falsehood or by making
misstatement or by suppressing facts
which have a bearing on adjudication of
the issue(s) arising in the case."

47. A mere reference to the
order dated 2-5-2003, en passant, in the
order dated 24-7-2006 does not serve the
requirement of disclosure. It is not for the
court to look into every word of the
pleadings, documents and annexures to
fish out a fact. It is for the litigant to
come upfront and clean with all material
facts and then, on the basis of the
submissions made by learned counsel,
leave it to the court to determine whether
or not a particular fact is relevant for
arriving at a decision. Unfortunately, the
petitioners have not done this and must
suffer the consequence thereof."

61. Moreover, the MDA sent a
letter dated 30th June 2006 to the State
Government seeking approval of levy of
Rs.400/- per square meter towards
development charges and the State
Government approved the same vide
letter dated 17th June 2006 (annexure
SCA-3 of counter affidavit). The same
has not been disclosed by the petitioner.

62. Thus, a litigant, who approaches
the Court is bound to state all the relevant
facts and produce all the documents
which are relevant to the litigation
without any reservation even if they are
against him. He cannot be allowed to
play "hide and seek" or to "pick and
choose" the facts he likes to disclose and
to suppress or not to disclose other facts.

63. In view of the foregoing
discussion and drawing support from the
judgment of the Supreme Court in the case
of 'State of U.P. and others vs. Malti
Kaul (supra), we do not fin any merit in
the petition. The same is, accordingly,
dismissed. No order as to costs.
----------
(2020)08ILR A469
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.06.2020

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Matters Under Article 227 No. 5153 of 2019

Neelesh Agarwal ...Petitioner
Versus
Ishaan
Buildtech,
Rampur
Garden,
Bareilly & Ors. ...Respondents
470 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Manish Goyal, Ravi Anand Agarwal,
Sri Shreya Gupta

Counsel for the Respondents:
Ghanshyam Das Mishra, Sri Ashutosh
Srivastava

A. Civil Law - Civil Procedure Code -
Limitation Act, 1963 - Ss. 5 and 14 -
Condonation of Delay - Liberal Approach
- Substantial Justice - There should be a
liberal,
pragmatic,
justice-oriented,
nonpedantic approach while dealing with
an application for condonation of delay,
for the courts are not supposed to legalise
injustice but are obliged to remove
injustice - The terms 'sufficient cause'
should be understood in their proper
spirit, philosophy - Substantial justice
being paramount and pivotal the technical
considerations should not be given undue
and uncalled for emphasis. (Para 45)
Petition dismissed (E-1)
Cases relied on :-
1. Baljeet Singh & ors. Vs St. of U.P. and
others (2019) 15 SCC 33
2. Balwant Singh Vs Jagdish Singh (2010) 8
SCC 685
3. Jebasundari & ors. Vs S. Tharmar (2018) 6
MLJ 523
4. Popat Bahiru Govardhane Vs Special Land
Acquisition Officer & ors. 2013(10) SCC 765
5. P.K. Ramachandran Vs St. of Kerala AIR
1998 SC 2276
6. M/s Auto Oil Company Vs Indian Oil
Corporation 2011 (5) ADJ 800
7. Rajendra Prasad Gupta Vs Prakash Chandra
Mishra & ors. AIR 2011 SC 1137
8. Syed Wasif Husain Rizvi Vs Hasan Raza
Khan & ors. 2016(2) ADJ 571
9. Vidhyadhar Vs Manikrao 1999(3) SCC 573
10. S. Kesari Hanuman Goud Vs Anjum Jehan
& ors. 2013(12) SCC 64
11. Sneh Gupta Vs Devi Sarup & ors. (2009) 6
SCC 194
12.
Perumon
Bhagvathy
Devaswom
Vs
Bhargavi Amma (2008) 8 SCC 321
13. Sunni Central Board Vs Sri Gopal Singh
Visharad 2010 ADJ (1) (SFB) LB
14. Bhagmal & ors. Vs Kunwar Lal and others
(2010) 12 SCC 159
15. Ram Prakash Agarwal & anr. Vs Gopi
Krishan (dead through Lrs) and others (2013)
11 SCC 296
16. N. Balkrishnan Vs M. Krishnamurthy
(1998) 7 SCC 123
17. Raisa Sultana Begam & ors. Vs Abdul
Qadir and others AIR 1966 All. 318
18. M.K. Prasad Vs P. Arumugam (2001) 6
SCC 176
19. Santi Prasad Gupta Vs D.D.C. Camp at
Meerut & ors. (1981) Supp SCC 73
20. Bhagmal Vs M.P. Cooperative Marketing &
Consumer Federation Ltd & ors. (2003) 11
SCC 727
21. Mohammad Shafeeq Vs Mirza Mohammad
Husain & ors. (2002) 9 SCC 460
22. Kanhiya & ors. v. Mohabata & ors. 1960
SCC OnLine P&H 39 : ILR (1960) 2 P&H 707 :
AIR 1960 P&H 494
23. Annammal & ors. v. Chellakutti 1962 SCC
OnLine Mad 156 : (1963) 76 LW 215 : (1963)
1 Mad LJ 154 : AIR 1963 Mad 300
24.
Esha
Bhattacharjee
v.
Managing
Committee of Raghunathpur Nafar Academy
& ors. (2013) 12 SCC 649

(Delivered by Hon'ble Jayant Banerji, J.)

1. This petition seeks setting aside
the order dated 26.04.2019 passed by the
Civil Judge (Senior Division), Bareilly in
Misc. Case No.59 of 2017. By that order,
the application Paper no.4C filed by the
defendant-respondents under Section 5 of
the Limitation Act for condoning the
delay in filing an application Paper No.5C
8 All. Neelesh Agarwal Vs. Ishan Build Tech., Rampur Garden, Bareilly & Ors.
471
under Order 9 Rule 13 of the Code of Civil
Procedure, 19081, was allowed on payment
of cost of Rs.30,000/-. By the same order a
subsequent date was fixed for disposal of the
application paper no.5C filed for setting aside
the ex-parte decree dated 22.12.2003 passed
in Original Suit No.158 of 2000.

2. It appears from the petition that the
petitioner filed Original Suit No.158 of
20002 for a decree of mandatory prohibitory
injunction in respect of Gata Nos.324 and
325 and Plot No.14A for restraining the 21
defendants from causing any interference in
the peaceful possession of the plaintiff over
Gata Nos.324 and 325 (southern half),
Udaipur Khas, Bareilly by forcibly entering
into an unlawful possession or from raising
any constructions over any part thereof,
unless the defendant no.1 seeks partition by
metes and bounds of his share therein.
Another relief appears to have been sought
in the suit, for declaration of the sale-deeds
from serial nos.8 to 15 under Schedule-A to
the plaint and the sale-deeds mentioned at
serial nos.4 to 10 under Schedule-B in
respect of Gata No.325, Udaipur Khas,
Bareilly, as void. The sale-deeds pertaining
to Plot No.14A in favour of the defendantrespondent nos.4 and 5 on 17.12.1999 was
mentioned at serial no.4 of Schedule-B to
the plaint.

3. On 17.04.2000, an ex-parte
interim order was granted by the court
below restraining the defendants from
raising any constructions over the suit
property.
The
defendant-respondent
nos.4 and 5, who were arrayed as
defendant nos.15 and 14 respectively in
the suit of 2000, filed an objection
against the temporary injunction.

4. On 19.09.2001, an application
being paper no.205-C, signed jointly by
the plaintiff-petitioner and the defendantrespondent no.5, was filed before the
court
below
stating
that
after
consideration of the record, the plaintiffpetitioner has found that the sale-deed in
favour of Manoj Gupta, the defendantrespondent
no.5,
was
lawful
and,
therefore,
he
is
entitled
to
raise
constructions over the property so
purchased by him. It was, accordingly,
prayed in that application that the adinterim injunction against the defendantrespondent no.5 (defendant-respondent
no.14 in the suit of 2000) be vacated and
recalled and the plaintiff-petitioner has
no objection to it. On 19.09.2001 itself,
the court below modified the interim
order dated 17.04.2000 as far as the
defendant-respondent
no.5
was
concerned. It is stated in the petition that
though at the stage of contest of the
application for temporary injunction, a
limited settlement took place to permit
the
defendant-respondent
no.5
to
continue with the constructions being
raised by him but thereafter no final
settlement took place between the parties
and no compromise in terms of Order 23
Rule 3 of the CPC was filed nor any
compromise was ever rendered by the
trial court. It is further stated that the
plaintiff-petitioner also never abandoned
his claim against any of the defendants. It
is stated that the defendant-respondents
were fully conscious of the said fact and
that they continued to appear in the suit
even after filing of the application 205-C.
It is stated that the defendant-respondent
no.5 got filed a vakalatnama of another
counsel on his behalf on 03.07.2002. The
suit was finally decreed vide judgment
and order dated 22.12.2003 injuncting all
the defendants permanently from raising
any constructions over the suit property
as well as interfering in the possession of
472 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaintiff-petitioner over the suit
property.

5. It is stated that thereafter, the
respondent nos.1, 2 and 3 alongwith the
defendant-respondent nos.4 and 5 filed a
Original Suit No.153 of 20163 seeking
permanent
injunction
against
the
plaintiff-petitioner (of suit of 2000) from
interfering in the constructions raised
subsequent to the passing of the order
dated 19.09.2001 in the suit of 2000. The
issue no.3 framed by the trail court in the
suit of 2016 was that 'whether in the facts
and circumstances, the plaint was liable
to be rejected under Order 7 Rule 11
CPC'. This issue was decided in favour of
the plaintiff-petitioner and the plaint was
rejected by means of the order dated
29.08.2017. This was challenged in First
Appeal No.667 of 2017 before this Court,
which was dismissed on 04.10.2017 with
the observation that the remedy against
the ex-parte decree passed in the suit of
2000 is by way of appeal/application. It
is stated that then the defendantrespondents moved an application under
Order 9 Rule 13 read with Section 151
CPC for setting aside the ex-parte decree
dated 22.12.2003 passed in the suit of
2000. This application was accompanied
with a delay condonation application
under Section 5 read with Section 14 of
the of the Limitation Act. Both these
applications
were
dated
28.10.2017
which came to be registered as Misc.
Case No.59 of 2017. By the order
impugned,
the
delay
condonation
application under Section 5 of the
Limitation Act has been allowed.

6. An amendment application was
filed in the present petition which was
allowed. It has been stated therein that
the power of attorney executed in favour
of the respondent no.3 on 02.09.2014 by
the defendant-respondent nos.4 and 5
stood exhausted inasmuch as the plot
no.14A came in the ownership of
respondent nos.1 and 2 through two
distinct sale-deeds and the respondent
no.3 happens to be one of the partners in
each of the firms, namely, the respondent
nos.1 and 2. The respondent nos.1, 2 and
3 were complete strangers to the suit
proceedings
and
application
under
Section 5 of the Limitation Act alongwith
the application under Order 9 Rule 13
CPC could not have been filed at their
behest. It is stated that the court below
has acted erroneously in excess of
jurisdiction by carving out a case not
pleaded by the parties while allowing the
delay condonation application under
Section 5 of the Limitation Act. It is
stated that the paper no.205-C filed
before the court below was not signed by
Sunita
Maheshwari,
the
defendantrespondent no.4, who was the joint
holder of plot no.14A alongwith Manoj
Kumar Gupta and there is no independent
authority given by Sunita Maheshwari in
favour of Manoj Kumar Gupta. It is also
stated that the modification of the interim
order
dated
17.04.2000
is
of
no
consequence as the recital in the paper
no.205-C is with respect to holding of
Manoj Kumar Gupta alone. Hence, there
is no concealment and modification of
the interim order or an order passed on
paper no.205-C is of no consequence as it
cannot have the consequence of altering
the rights in favour of the petitioner in
terms of the decree dated 22.12.2003.

It is stated that a Special Leave
Petition was filed by the respondent
nos.1, 2 and 3 before the Supreme Court
against the judgment and order dated
04.10.2017 passed by this Court in First
8 All. Neelesh Agarwal Vs. Ishan Build Tech., Rampur Garden, Bareilly & Ors.
473
Appeal No.667 of 2017 which is pending
before the Supreme Court. It is stated that
once the matter is engaging the attention
of the Supreme Court, the respondents
cannot be allowed to approbate and
reprobate and avail two remedies for the
same cause of action and the same is an
abuse of the process of the Court.

7. A counter affidavit has been filed
by the defendant-respondent no.3 in
which it has been stated that the plaintiff
and the defendant No.1 of the suit of
2000 had a common ancestor who was
recorded
bhumidhar
over
the
land
bearing Gata No. 324 and 325 which is
now within the municipal limits of
Bareilly. He was survived by Sahu Shanti
Kumar, Sahu Ram Kumar. Sahu Ram
Kumar was survived by Satya Prakash
and Om Prakash. Thereafter, Om Prakash
was survived by Neelesh Agarwal (the
plaintiff-petitioner) and names of Satya
Prakash and Neelesh Agarwal were
recorded as co-tenure holders in the
revenue records relating to said lands.
The suit of 2000 was filed by the plaintiff
on 17.4.2000 and by an exparte adinterim injunction order of the same date,
the defendants were restrained from
raising construction over the respective
plots and summons/notices were issued.
It is stated in paragraph no.6 of the
counter affidavit that the defendant nos.
8, 9 and 12 appeared in the suit of 2000
and
the
plaintiff
entered
into
a
compromise with them while admitting
the sale deeds executed by defendant
No.1 in their favour and moved a joint
application before the court below and
got the exparte interim order dated
17.4.2000 vacated against them and also
permitted them to raise construction over
the plot under those sale deeds which
application was allowed by the court
below. It is stated in paragraph no.7 of
the counter affidavit that thereafter, the
defendant Nos. 10 and 11 also appeared
in the suit of 2000 and
similar
compromise was entered into between
them and the plaintiff and pursuant
thereto, the exparte interim injunction
order dated 17.4.2000 was vacated
against them and they also were
permitted to raise constructions over the
plots under those sale deeds. Thereafter,
the defendant nos. 14 and 15 of the suit
of 2000 (respondent no. 5 and 4
respectively to this application) appeared
in the suit of 2000 and a compromise was
entered
into
between
the
plaintiff
Neelesh Agrawal and Manoj Gupta
(respondent No.5) and they filed a joint
application for compromise ( paper No.
205-C) admitting that plaintiff Neelesh
Agarwal was satisfied that the sale deed
executed by his uncle Satya Prakash in
favour of Manoj Gupta is lawful and
Manoj
Gupta
is
entitled
to
raise
constructions
over
the
property
purchased by him and prayed for
vacation of the injunction order dated
17.4.2000 against Manoj Gupta. The
court below by its order dated 19.9.2001
accepted
the
said
application
for
compromise and vacated the exparte ad
interim injunction order dated 17.4.2000
to the extent of defendant No. 14
(Respondent No. 5). It is further stated in
paragraph no.13 of the counter affidavit
that an Original Suit no.151 of 2014
(Rajan Kumar v. Neelesh Agarwal) was
filed in which an application for
compromise was filed admitting the
plaintiff therein is owner of plot no.14-B
vide sale-deed dated 17.12.1999 and the
suit was decided accordingly.

8. It is stated in the counter affidavit
that since the plaintiff of suit of 2000
474 INDIAN LAW REPORTS ALLAHABAD SERIES
admitted the sale deed executed in favour
of defendant-respondent and abandoned
his claim against them, as such the
defendant-respondents were advised by
their counsel that they were not required
to take part in further proceedings in suit
of 2000. It is stated that the defendant
No. 14 also got the order passed by the
court below on his application (paper No.
205C) confirmed through an advocate
Mrs. Abha Agarwal who filed her
vakalatnama in the suit of 2000 and after
perusing the order dated 19.9.2001 she
also advised the defendant No. 14 that
now there is no claim against him and he
is not required to take part in further
proceedings in suit as such, the defendant
No. 14 did not take part in further
proceedings in suit of 2000. It is stated
that thereafter, the plaintiff moved an
application for amendment in suit of
2000 to declare the sale deed executed by
his uncle Satya Prakash null and void but
the copy thereof was not supplied to the
counsel for the defendant Nos. 14 and 15
as such, that application was not within
the knowledge of defendant nos. 14 and
15. The amendment application was
allowed by the court below and the suit
was decreed exparte by the court below
by its judgment and decree dated
22.12.2003 without going through the
records regarding the admission of
Neelesh Agarwal (plaintiff) with regard
to sale deed executed in favour of several
persons including defendant Nos. 14 and
15.

9. It is stated that the defendant nos.
14 and 15 executed a power of attorney
on 2.9.2014 in respect of said plot in
favour of respondent No.3, Sunil Verma
who in turn executed sale deed dated
4.9.2014 and 10.10.2014 in favour of
Ishan Buildtech and P.N. Infratech
respectively and their names have been
recorded in the revenue records relating
to the said lands. Ishan Buildtech and
others filed the suit of 2016 which was
rejected under order 7 Rule 11 CPC. The
First Appeal filed against rejection of
plaint before this court was dismissed on
4.10.2017 with the direction that "if any
remedy is available is to file an
appeal/application against exparte decree
in suit No. 158 of 2000, the applicant is
free to avail the same".

Accordingly,
an
application
under Order 9 Rule 13 C.P.C was moved
by
the
respondent
alongwith
an
application under Section 5 of the
Limitation Act for setting aside the
exparte decree passed in the suit of 2000.

10. In the rejoinder affidavit filed
on behalf of the plaintiff-petitioner, it has
been denied that he had abandoned his
claim at any stage though at the state of
contest
of
temporary
injunction
application, the injunction order was
modified so as to permit the defendantrespondent No.5 to continue with the
construction being raised by him. It has
been stated that mutation in the revenue
records pertaining to the sale deed
executed in favour of Ishan Buildtech
and P.N. Infratech by respondent no.3
was challenged by the plaintiff-petitioner
before the Additional Commissioner
(Judicial) and the effect and operation of
the order passed by the Tehsildar was
stayed and the proceedings are still
pending
before
the
Additional
Commissioner. It has been stated that the
court below while condoning the delay of
more than 15 years, has failed to strike a
balance. There was also no assertion in
the entire delay condonation application
that the defendant-respondents had no
8 All. Neelesh Agarwal Vs. Ishan Build Tech., Rampur Garden, Bareilly & Ors.
475
knowledge of the decree rendering the
application defective for want of relevant
pleadings. The contents of paragraph nos.
6, 7 and 13 of the counter affidavit have
not been denied.

Submissions of the learned counsel

11. Shri Manish Goyal, learned
Senior Advocate appearing for the
petitioner has submitted, while referring
to the plaint of suit of 2000, that the
dispute
with
regard
to
defendantrespondent nos.4 and 5 pertains to Plot
No.14-A in respect of which the sale deed
was executed on 17.12.1999. It is stated
that the joint application being paper
no.205-C has not been filed by Sunita
Maheshwari but only between the plaintiffpetitioner and the defendant-respondent
no.5. However, the ex-parte judgment and
order dated 22.12.2003 operates against
both the defendant-respondent nos.4 and 5.
The decree has attained finality. It is
contended that after the order dated
19.09.2001 passed by the court below
modifying the injunction order dated
17.04.2000, a vakalatnama was filed by
one Smt. Abha Agarwal, on behalf of
Manoj Kumar Agarwal, the defendantrespondent no.5. It is stated that it cannot
be said that the defendant-respondents had
no knowledge of the ex-parte decree. It is
stated that on the date of institution of the
suit of 2016, the applicants had knowledge
of the ex-parte decree dated 22.12.2003. It
is further contended that the defendantrespondents misrepresented before the
court below that in the First Appeal, the
High Court had directed decision of the suit
of 2000 on its merits. Learned Senior
Advocate contended that the affidavit in
support of the application under Section 5
of the Limitation Act and the application
Order 9 Rule 13 CPC was filed by the
defendant-respondent
no.3
claiming
himself to be a power of attorney holder of
the defendant-respondent nos.4 and 5 and
the partner of the defendant-respondent
nos.1 and 2 and has testified the contents of
the affidavit as true on the basis of his
personal knowledge. It is stated that the
power of attorney was not filed alongwith
the two applications and the affidavit and,
therefore, it cannot be taken to be an
affidavit on behalf of the defendantrespondent nos.4 and 5 who were actually
the defendants in the suit of 2000. Learned
Senior Advocate has relied upon a decision
of the Full Bench of this Court in the case
of Syed Wasif Husain Rizvi Vs. Hasan
Raza Khan and others4 to contend that
the power of attorney holder did not have
the authority to file the application and the
affidavit because he did not satisfy the
conditions laid down by this Court in the
said decision. It is contended that on one
hand, in the Special Leave Petition before
the
Supreme
Court,
the
defendantrespondents
have
challenged
and
questioned the observations made by the
High Court in its judgment dated 4.10.2017
passed in the First Appeal directing the
petitioner to avail the remedies to move an
application for setting aside the ex-parte
decree dated 22.12.2003 and, on the other
hand, they have filed the applications under
Order 9 Rule 13 CPC and under Section 5
of the Limitation act on the basis of the
observations made in the judgment of the
High
Court
dated
4.10.2017.
It
is
contended that in the Special Leave
Petition, the Supreme Court by its order
dated 9.2.2018 had issued notices only to
the limited extent to explore the possibility
of settlement between the parties.

In support of his contention,
learned
counsel
for
the
plaintiffpetitioner
has
cited
the
following
judgements:-
476 INDIAN LAW REPORTS ALLAHABAD SERIES
1
Baljeet Singh &
Others Vs. State of
U.P. and others
(2019)
15
SCC 33
2
Balwant Singh Vs.
Jagdish Singh and
others
(2010) 8 SCC
685
3
Jebasundari
and
others
Vs.
S.
Tharmar
(2018) 6 MLJ
523
4
Popat
Bahiru
Govardhane
Vs.
Special
Land
Acquisition Officer
and others
2013(10) SCC
765
5
P.K.
Ramachandran Vs.
State of Kerala
AIR 1998 SC
2276
6
M/s
Auto
Oil
Company
Vs.
Indian
Oil
Corporation
2011 (5) ADJ
800
7
Rajendra
Prasad
Gupta Vs. Prakash
Chandra Mishra &
ors
AIR 2011 SC
1137
8
Syed Wasif Husain
Rizvi Vs. Hasan
Raza
Khan
and
others
2016(2) ADJ
571
9
Vidhyadhar
Vs.
Manikrao
1999(3) SCC
573
10 S. Kesari Hanuman
Goud Vs. Anjum
Jehan and others
2013(12) SCC
64
11 Sneh Gupta Vs.
Devi
Sarup
and
others
(2009) 6 SCC
194

12. On the other hand, Shri Shashi
Nandan, learned Senior Advocate for the
defendant-respondents
has
contended
that by means of the impugned order, the
delay condonation application filed under
Section 5 of the Limitation Act has been
allowed on payment of cost but the
application under Order 9 Rule 13 CPC
is yet to be considered. It is contended
that relief (b) in the suit of 2000 was
incorporated by way of amendment. The
validity of the sale deed executed in
favour of the defendant-respondent nos.4
and 5 is not in issue. He contended that
by means of the order dated 17.04.2000
granting temporary injunction, the court
below directed maintenance of status quo
with regard to the southern half part of
the disputed plot, Khasra No.325. It is
contended that on perusal of the joint
application
(paper
no.205-C)
dated
19.09.2001 filed both by the plaintiffpetitioner and the defendant-respondent
no.5 enclosed as Annexure-5 to the
petition, three things appear. Firstly, it is
an indication of a prior settlement.
Secondly, the plaintiff had abandoned his
claim with regard to the sale deed in
favour of the defendant no.14 (defendantrespondent no.5). Thirdly, the application
was moved by the parties and was given
effect to by the court below by means of
an order dated 19.09.2001 recalling the
order dated 17.04.2000 insofar as the
defendant-respondent no.5 is concerned.
It is, therefore, contended that it was the
duty of the plaintiff-petitioner to have
placed this document and the order
passed by the court thereon before the
court below prior to passing of the exparte
judgment
and
decree
dated
22.12.2003. Hence, the court below was
justified in holding that it was a case of
fraud on part of the plaintiff-petitioner
and that is a ground for condonation of
delay. It is stated that in the ex-parte
judgment and decree dated 22.12.2003,
8 All. Neelesh Agarwal Vs. Ishan Build Tech., Rampur Garden, Bareilly & Ors.
477
there is no decree for cancellation of the
sale deed. It is, therefore, contended that
the plaintiff-petitioner is not entitled to
resist the sale deed executed in favour of
the defendant-respondent no.5, which is
admitted to be valid. It is further
contended that in the suit of 2016, the
plaintiff nos.4 and 5 were partners.
Learned Senior Advocate contends that
the defendant-respondents had only to
show the admission of the plaintiffpetitioner made in the application, paper
no.205-C,
and
that
under
such
circumstances, non-attendance of the
defendant-respondent nos.4 and 5 in the
suit of 2000 after recall of the temporary
injunction order dated 17.04.2000 in their
favour, was quite justifiable and would
be sufficient cause for not filing the
application under Order 9 Rule 13 CPC
within time.

Learned
counsel
for
the
respondents
has
relied
upon
the
following judgements:-

1 Bhagmal and
others
Vs.
Kunwar Lal
and others
(2010) 12 SCC
159

2 Ram
Prakash
Agarwal
and
another
Vs.
Gopi
Krishan
(dead
through
Lrs) and others
(2013) 11 SCC
296
3 N. Balkrishnan
Vs.
M.
Krishnamurthy
(1998)
7
SCC
123
4 Raisa
Sultana
Begam
and
others
Vs.
Abdul
Qadir
AIR 1966 All.
318
and others
5M.K.
Prasad
Vs.
P.
Arumugam
2001(6) SCC 176
6Santi
Prasad
Gupta
Vs.
D.D.C. Camp at
Meerut
and
others
1981( Supp) SCC
73
7Bhagmal
Vs.
M.P.
Cooperative
Marketing
&
Consumer
Federation Ltd
and others
2003(11)
SCC
727
8Mohammad
Shafeeq
Vs.
Mirza
Mohammad
Husain
and
others
2002
(9)
SCC
460

13. In rejoinder, Shri Manish
Goyal, learned Senior Advocate for the
plaintiff-petitioner has contended that
there is no application for abandoning the
claim or withdrawal of suit against the
defendant-respondent no.4. He contended
that under the circumstances, the case
would not fall within the category of
abandonment of suit. It is stated that no
specific date has been mentioned in the
application under Section 5 of the
Limitation Act regarding the date on
which the defendant-respondents had
knowledge of the ex-parte decree dated
22.12.2003. It is contended that after the
order dated 19.09.2001 was passed by the
court below pursuant to the joint
application,
paper
no.205-C,
the
defendant-respondent nos.4 and 5 had
engaged
another
lawyer
in
the
478 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings and did not withdraw their
right to contest the proceedings. It is
contended that there is no case of fraud
as the defendant-respondent nos.4 and 5
have displayed positive conduct by
engaging
another
counsel
after
19.09.2001. With reference to the exparte
judgment
and
decree
dated
22.12.2003, it is contended that the entire
suit was decreed which included the sale
deed, that is, both the reliefs were
granted. It is contended that there is no
question of any admission being made by
the plaintiff-petitioner and the admission
made, if any, is saved by Section 52 of
the Transfer of Property Act.

Discussion & analysis

14. In the suit of 2000, the
application paper No. 4C was filed
alongwith another application (paper No.
5C) under Order 9 Rule 13 CPC
supported by an affidavit (paper No. 6C).
In the application paper No. 4C,
condonation of delay was sought on the
basis
of
the
averments
in
the
accompanying application Paper no.5C
and the affidavit.

15. In paper No. 5C, it was stated
that when the plaintiff sought to enforce
the exparte decree, the suit of 2016 was
filed which was dismissed under the
provisions of Order 7 Rule 11 CPC on
29.08.2017 of the ground of existence of
the exparte decree. It was stated that the
First Appeal of 2017 was filed in the
High Court which was disposed of with
observation that remedy of applicants is
by way of seeking setting aside the
exparte decree and not by a separate suit
and the High Court allowed the remedy
to the applicants for setting aside the
decree. It was stated that the applicants
had no occasion to doubt the bonafides of
the O.P. Earlier to the date of institution
of the suit of 2016, time consumed was
under bonafide legal advise. That due to
oversight, the applicants had moved the
application on 18.10.2017 in the court of
the Civil Judge (Sr. Division) Bareilly,
but on detecting the mistake the present
application was being filed and an
application has been moved in the court
of the Civil Judge (Sr. Division) for
withdrawal of the application mistakenly
filed.

16. In the affidavit paper No. 6C
the reasons for delay have been stated in
paragraph nos. 5 to 7 as follows:

"5)
That
pursuant
to
disturbance at the instance of O.P. and
upon his threat to execute the exparte
decree dt. 22.12.2003 passed in O.S. No.
158/2000- Neelesh Agarwal Vs. Satya
Prakash and others, the applicants filed
suit No. 153/2016- Ishaan Buildtech and
others Vs. Neelesh Agarwal in the court
of Cl. J(Sr. Dn) Bareilly, which was
unfortunately
dismissed
under
the
provisions of O. VII, rule 11 CPC and the
appeal preferred against order dt.
29.8.2017 passed in O.S. No. 153/2016,
their Lordship of Hon'ble High Court of
Judicature at Allahabad in Ist Appeal
No. 667/2017 observed that remedy of
the
applicants
lie
in
moving
the
restoration application in the case ( O.S.
No. 158/2000) and not by a separate suit
and with these observations the said Ist
appeal was disposed off, vide order dt.
04.10.2017. The certified copy of the said
order could be made available to the
deponent on 17.10.2017.

6) That applicants had no
occasion to doubt the bonafide of O.P
and immediately upon his threat to
enforce
the
exparte
decree,
the
8 All. Neelesh Agarwal Vs. Ishan Build Tech., Rampur Garden, Bareilly & Ors.
479
applicants had filed O.S. No. 153/2016-
Ishaan Buildtech & others Vs. Neelesh
Agarwal, bonafide believing that exparte
decree
had
been
obtained
by
concealment of matrial facts and by
suppression
of
order
passed
on
application 205/C. The time consumed
therein was most bonafide and under
legal advise.

7)
That
there
was
no
negligence or want of due diligence on
the part of the applicants and the delay in
not moving the restoration application
earlier
was
due
to
facts
and
circumstances as stated above and in the
accompanying restoration application
were most bonafide. For the ends of
justice delay deserves to be condoned
under the provisions of Sec. 5 read with
Sec. 14 Limitation Act and u/s 151
C.P.C.".

17.

The
court
below
while
considering the application 4C held that
under the circumstances, provisions of
Section 14 of the Limitation Act are not
attracted.
Then
the
court
below
considered the application on the basis of
section 5 of the Limitation Act. The joint
application filed in the suit of 2000
bearing paper No. 205C was considered.
The court below observed that the order
dated 19.9.2001 was passed on that
application on the ground that after going
through all the record, the plaintiff was
satisfied that the sale deed executed in
favour of defendant No.14 is correct and
that he can made his construction thereon
and, therefore, the interim injunction
order granted against him be recalled.
The
interim
injunction
granted
on
17.4.2000 was accordingly modified to
the extent that it will not affect the
defendant No. 14. The court below
observed that in the suit of 2000, though,
cancellation of sale deeds were also
sought, but the court only passed exparte
prohibitory injunction on 22.12.2003.
The court below held that on perusal of
the aforesaid order dated 19.9.2001 as
well as paper No. 205C, it is clear that
the plaintiff had admitted the right and
possession of applicant No.1( defendant
No. 14) in respect of plot No. 14A, but
while passing of exparte decree, the
plaintiff did not draw the attention of the
court to the order dated 19.9.2001. The
court below observed that though it is
expected of the court that it will peruse
the previous orders passed by it, but in
the present case, the exparte decree was
passed by his predecessor in office by
mistake and due to concealment of fact
by the plaintiff. The court below further
observed that the plaintiff had greater
responsibility after passing of the order
dated 19.9.2001 by the court that he
ought to have placed the correct facts
before the court and this demonstrated
that
the
plaintiff
had
deliberately
concealed the fact from the court and
fraudulently
got
the
decree
dated
22.12.2003 passed. The court below was
of the view that under the circumstances,
only on the ground of delay, the doors for
hearing of the case should not be closed
and that on the ground of delay no person
can be denied justice. The court below
observed that though the applicant nos. 1
and 2 (defendant nos. 14 and 15) were
required to be aware of their defense in
which they have defaulted, but that can
be compensated by damages. While
referring to the fact that all the
defendants were not parties, the court
below referred to the proviso to Order 9
Rule 13 CPC and held that the
application would be maintainable. As
far as question with regard to applicant
nos. 3 to 5 being strangers to the suit, the
480 INDIAN LAW REPORTS ALLAHABAD SERIES
court observed that the applicant nos. 1
and 2 were parties in the original suit and
as such the application is maintainable,
and the applicant nos. 3 to 5 have the
option that in case the exparte decree is
set aside, they can move an application
for being impleaded as party in the
original suit under the provisions of order
22 Rule 10 C.P.C. With regard to the
power of attorney executed in favour of
applicant no. 5 (defendant no. 3), the
court below was of the opinion that since
the applicant nos. 1 and 2 are parties in
the original suit and as such, the
application shall not be rendered not
maintainable
on
that
ground.
Accordingly, the application ( paper No.
4C) was allowed with cost of Rs.
30,000/. It was specified that for disposal
of application 5C, the case be put up on
8.5.2019. It was also specified that if by
the specified date, the cost is not
deposited, the order impugned would
lose its effect.

18. The only point required to be
considered by this Court at this stage is
whether the court below has correctly
decided that there was sufficient cause
for condoning the delay in filing the
application under Order 9 Rule 13 CPC.

19. A perusal of the plaint enclosed
reveals that the suit of 2000 was filed for
the following relief:

(a) that by a decree of
mandatory prohibitory injunction the
defendants be restrained from causing
any
interference
in
the
peaceful
possession of the plaintiff over Gata Nos.
324, 325 (southern half) Udaipur Khas,
Bareilly by forcibly entering into its
unlawful possession or from raising any
constructions over any part thereof in
any manner either by themselves or
through their agents, servants etc. unless
defendant no. 1 seeks partition by meets
and bound of this share therein;

(b) that by the adjudged &
declared that the sale deeds mentioned of
sl. no. 8 to 15 under schedule and sale
deeds mentioned at sl. no. 4 to 10 under
schedule B in respect of Gata No. 325
Ujdaipur Khas Bly are void, ineffective
& in operative & copy of the order of the
Hon'ble Court may be sent to the office of
SR Bareilly for proper noting in their
records.

(c) Costs of the suit be awarded
to the plaintiff against the defendants".

Schedule A and B to the plaint
are as follows:

"Details of sale-deeds executed
by defendant no.2 under POA dt.
11.11.94 for 2000 Sq.M. Plotted area
comes to 1384.97 Sq.M.

Schedule-A
Sl.
Plot No. Area
(Sq.M.
)
Date
of
exec
ution
Vendee
1
255.41
04.02.
95

Kiran Pal
Singh
2
Plot
no.11
141.5
5
16.1
0.95
Surendra
Khera
3
Plot
No.5
167.2
2
26.1
0.95
Shanti
Devi,
Jagdish
4
Plot
No.7
203.5
3
30.1
0.95
Radhey
Shyam
Gupta
5
Plot
No.23
120.0
0
30.1
0.95
Manty
Gupta
6
Plot
No.18
171.0
0
4.11.
95
Urmila
Agr,
8 All. Neelesh Agarwal Vs. Ishan Build Tech., Rampur Garden, Bareilly & Ors.
481
Renu
Agr.
7
Plot
No.13
181.6
9
4.12.
95
Krishna
Babu,
Usha
Agr.
8
Plot
No.12-B
177.6
3
4.12.
95
Sunil
Bhasin
9
Plot
No.S-B
84.45 6.5.9
6
Ajai
Gupta,
Pritam
10
Plot
No.23
120.0
0
29.3.
97
Vijai
Johri
11
Plot
No.3
272.5
6
1.5.9
7
Vivendri
Devi
12
Plot
No.22
165.0
0
17.7.
97
Asha
Rani
Khandiya
13
Plot
No.45
88.00 14.8.
97
Ajai
Johri
14
Plot
No.38,
30, 40,
Plot
No.11-B
93.79 24.8.
97
Jogindra
Kaur
15
Plot
No.46
82.50 24.8.
97
Vinod
Chand

2799.
33

As against permissible limit of
1384.57 Sq.M.

It is again worth to mention
here that both the power of attorney dt.
22.7.94 and 11.11.94 relate to Gata
Nos.324 and 325 while all the saledeed(s) so executed under both the
attorneys relate back to gata No. 325
alone which again vendees the extent of
authority of deftt. Nos. 2 and 4.

Similarly defendant no.2 and 4
have
collusively
jointly
executed
saledeeds of plotted area of 2344, 19 Sq.
M as against the permissible limit of
2077.46 sq.M. under POA of 3000 Sq. M.

SCHEDULE-B

Details of sale-deeds jointly
executed by defendant no.1, 2 and 4

Sl. Plot
No.
Area
(Sq.M.
)
Date
of
execut
ion
Vendee
1
12
279.0
0
19.11.
94
Sunil Bhasin
Daizy
2
6
232.8
4
19.11.
94
Dr.
Ajay
Gupta,
Pratima
3
4
293.3
8
19.11.
94
Manoj
Gupta,
Sushila
4
14-A 175.5
5
17.12.
99
Manoj
Gupta,
Sunita
5
14-B 92.60 17.12.
99
Rajendra
Kumar,
Ramesh
Kumar
6
34,
35-B
285.9
1
17.12.
99
Vinay
Pradhan
7
15
279.0
0
17.12.
99
Sharad
Kumar
8
16
216.0
0
17.12.
99
Nathoo Lal
Gangaur
9
35A,
36
285.9
1
17.12.
99
Kaushal
Pradhan
10 41
204.0
0
17.12.
99
Atul
Pradhan
482 INDIAN LAW REPORTS ALLAHABAD SERIES

23441
9.00

It is worth to mention here that
seven forged sale-deed mentioned at Sl.
No.4 to 10 above have been brought in
existence by calling the SR Bareilly at the
house defendant and by impersonation of
defendant no.4 as he is absconding sine
long.