# Suresh Kumar & Ors v. A.D.J. Court No. 1 Lko & Ors

- **Citation:** Misc. Single No. 16005 of 2017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-07-21
- **Case number:** Misc. Single No. 16005 of 2017
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-kumar-ors-v-a-d-j-court-no-1-lko-ors-44331
- **Pages:** 6

## Headnote

Civil Law-Agreement to execute sale deed
in
favour
of
petitioner-suit
filed
by
Petitioner-notice issued-respondent did
not
appeared-sale
deed
executed
in
favour of Petitioner exparte-Application
filed for setting aside the ex parte
judgment and decree-along with delay
condone
application-delay
condonedsettled proposition-sufficient cause to be
liberally construed-discretion should not
be readily interfered-W.P. dismissed. (E-9)
Cases cited:

## Text

1512 INDIAN LAW REPORTS ALLAHABAD SERIES
vs Prakash P. Hinduja & Anr reported in
AIR 2003 SC 2692 wherein it was held as
under:-

"Under our constitutional scheme
the Parliament exercises sovereign power
to enact laws and no outside power or
authority can issue a direction to enact a
particular piece of legislation."

13. In "Suresh Seth vs Commissioner,
Indore Municipal reported in AIR 2006 SC
767" the Apex Court held as under:-

"The Court cannot issue any
direction to the Legislature to make any
particular kind of enactment. Under our
constitutional
scheme
Parliament
and
Legislative Assemblies exercise sovereign
power to enact laws and no outside power or
authority can issue a direction to enact a
particular piece of legislation."

14. In view of the above, law laid down
by the Apex Court it is clear that this Court
cannot issue any mandamus directing the State
legislature even indirectly to legislate that
power being exclusively conferred on the
legislators and no writ can be issued by this
Court. Apart from the above, the writ petition
contains disputed question of facts which
cannot
be
adjudicated
by
this
Court,
accordingly, the same fails and is dismissed.
----------

(2020)03-05ILR A1512
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.07.2017

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 16005 of 2017

Suresh Kumar & Ors. ...Petitioners
Versus
A.D.J. Court No. 1 Lko & Ors.
 ...Respondents

Counsel for the Petitioners:
Anurag Srivastava

Counsel for the Respondents:
-----

Civil Law-Agreement to execute sale deed
in
favour
of
petitioner-suit
filed
by
Petitioner-notice issued-respondent did
not
appeared-sale
deed
executed
in
favour of Petitioner exparte-Application
filed for setting aside the ex parte
judgment and decree-along with delay
condone
application-delay
condonedsettled proposition-sufficient cause to be
liberally construed-discretion should not
be readily interfered-W.P. dismissed. (E-9)
Cases cited:

1. Salil Dutta Vs. TM & MC Pvt. Ltd., (1993) 2
SCC 185

2. Bhavnagar University Vs. Palitana Sugar Mill
Pvt. Ltd., (2003) 2 SCC 111

3. Deputy Collector, Northern SubDivision
Panajii Vs. Comunidade of Bambolim, AIR 1996
SC 148

4. Ashok v. Rajendra 4 Bhausaheb Mulak,
(2012) 12 SCC 27

5. N. Balakrishnan Vs. M. Krishnamurthy, (1998)
7 SCC 123

6. Bhagmal Vs. M.P. Cooperative Marketing and
Consumer Federation Ltd., (2003) 11 SCC 727

7.
Sarpanch,
Lonand
Grampanchayat
Vs.
Ramgiri Gosavi, AIR 1968 SC 222

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. Heard Sri Anurag Srivastava,
learned counsel for the petitioners.
3-5 All. Suresh Kumar & Ors. Vs. A.D.J. Court No. 1 Lko & Ors.
1513

2. This petition under Article 227 of
the Constitution has been filed challenging
the order dated 15.11.2016 passed by the
Additional District Judge, Court No. 1,
Lucknow in Misc. Case No. 61 of 2010,
Smt. Kaushalya Devi v. Suresh Kumar and
others.
Through
this
order
dated
15.11.2016, the application for condonation
of delay in filing the first appeal has been
allowed and the delay in filing the said
appeal has been condoned. The appeal was
registered as RCA No. 18 of 2017 and an
order
dated
27.02.2017
was
passed,
whereby the said appeal has been admitted
and the petitioners have been directed to
file their objection. This order is also under
challenge.

3. Few material facts relevant to
appreciate the controversy at hand are as
follows. The petitioners and Ram Kumari,
respondent no. 4 herein, were the coowners of the suit property situated at
Gram Kakori, Pargana Kakori, Tehsil and
District Lucknow. It appears that on the
basis of an agreement to sell, alleged to
have been executed by respondent no. 4 in
their favour, the petitioners on 31.05.2006,
filed a Regular Suit No. 443 of 2006
against the respondent no.4 in the Court of
Civil Judge (Jr. Div.), Lucknow. Despite
notice the respondent no. 4 did not appear
in the said suit and the trial Court passed a
judgment and decree dated 11.12.2007
directing the respondent no. 4 to execute a
sale deed in favour of the petitioners in
pursuance of the agreement to sell dated
06.06.2005, within one month or else the
petitioners would have the right to get the
sale deed executed in their favour through
Court. After the expiry of the said period,
the petitioners moved an application for
execution before the Civil Judge which was
numbered as Misc. Case No. 9 of 2008.
Once more, the respondent no. 4 did not
appear before the Court, and ultimately, on
01.10.2008, a sale deed was executed in
favour of the petitioners with respect to half
portion of the land in question and the same
was registered before the Sub Registrar,
Lucknow.

4. On 04.04.2009 the respondent no. 3
filed an application under Order 9 Rule 13 CPC
along with an affidavit for setting aside the ex
parte judgment and decree dated 11.12.2007
passed in Regular Suit No. 443 of 2006, before
the Civil Judge (Jr. Div.), South, Lucknow. The
said case was registered as Misc. Case No. 11C/09, Kaushalya Devi v. Suresh Kumar and
others. Along with the said application, the
respondent no. 3 also filed an application under
Section 5 of the Limitation Act supported by an
affidavit praying for condonation of delay in
filing the said application. On receiving notice,
the petitioners appeared in the said case.

5. It was thereafter that the respondent no.
3 filed first appeal before the District Judge,
Lucknow under Section 96 of CPC against the
ex parte judgment and decree dated 11.12.2007
passed in Regular Suit No. 43 of 2006. Along
with the said appeal, the respondent no. 3 also
filed an application for condoning the delay
under Section 5 read with Section 14 of the
Indian Limitation Act supported by an affidavit.
The said matter was registered as Misc. Case
No. 61 of 2010. The petitioners filed objections
to the application for condonation of delay.

6. On 15.11.2016, the Additional District
Judge passed an order whereby the delay in
filing the appeal has been condoned and the
application for condonation of delay has been
allowed. The relevant portion of the order is
extracted below:-

"Learned counsel of applicant
submitted the argument as per averment
made in the application. Learned counsel
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
also submitted that when an exparte decree
is passed, aggrieved person has two
options; one to file an appeal and another to
file an application under Order 9 Rule 13
CPC. He can take re-course both the
proceedings simultaneously. The learned
counsel placed reliance on "Bhanu Kumar
Jain vs. Archana Kumar and Anr. (2005) 1
Supreme Court Cases page-787." The
learned counsel also submitted that a fraud
vitiates the proceedings and a decree
obtained by fraud can be challenged by any
person aggrieved. The learned counsel
cited Suraj Dev Vs. Board of Revenue AIR
1982, Allahabad page-23. He further
contended that if a counsel wrongly pursue
a remedy under wrong Act, it will be a
good ground to condone the delay in
pursuing
remedy
under
the
correct
provision. On this point learned counsel
placed reliance on "Dy. Collector Vs.
Comunidav.of
Dambolin"
AIR
1996
Supreme Court page-48.

Learned counsel for opposite
party, in addition to the averment made in
the objection, submitted that a third party,
who is aggrieved with a decree, is entitled
to file an application under Order 9 Rule 13
CPC. There is no sufficient ground to
condone the delay in filing this Misc. Civil
Appeal.

Applicant, who was not a party in
the original suit No.443/2006 Suresh
Kumar & Anr. vs. Ram Kumari, which has
been decreed exparte against the defendant,
has filed a civil appeal. As per report of the
Munsarim, there is a delay of 788 days, so
to Condone the delay the application U/S 5
Limitation Act has been moved and the
ground taken is that on the wrong advice of
the counsel applicant has preferred an
application under Order 9 Rule 13 CPC
instead of appeal, which is more accurate
remedy in this matter. At this stage what is
to be seen is that there is sufficient ground
to
condone
the
delay
or
not,
the
maintainability of the appeal and other
grounds as taken by the parties are to be
considered at the relevant stage. While
disposing the application U/S 5 Limitation
Act, it is established law that liberal view
should be adopted and hard and technical
approach should be avoided. It is also
settled principle of law that a party should
not suffer due to mistake of his counsel. So
considering
the
entire
facts
and
circumstances of the case, there appears to
be sufficient ground to condone the delay
and it will be just and proper to provide the
opportunity, so that the matter can be
decided on merits. To compensate the
opposite party, adequate costs may be
imposed.

Hence, application is liable to be
allowed on costs."

7. The learned counsel for the
petitioners has placed heavy reliance on a
judgment of the Apex Court in Salil Dutta
v. TM & MC Private Limited, (1993) 2
SCC 185 to contend that mistake of a
counsel cannot be accepted as sufficient
cause for condonation of delay.

8. It is a settled principle of law that
the ratio of any judgment should be
understood in the background of the facts
of that particular case, and a little
difference in facts makes a huge difference
in the precedential value of a judgment.
(See Bhavnagar University v. Palitana
Sugar Mill Pvt. Ltd., (2003) 2 SCC 111).

9. It is in this light that the judgment
cited by the petitioner is to be understood.
On a perusal of the judgment rendered in
Salil Dutta (supra), it is noticed that the
party seeking condonation of delay had
alleged that its counsel had advised it that it
need not appear at the stage of final
3-5 All. Suresh Kumar & Ors. Vs. A.D.J. Court No. 1 Lko & Ors.
1515
arguments in the suit. The Apex Court had
come to a conclusion that this stance was
built up on a fabricated story and that the
said party was acting with malafide intent
and was guilty of non-cooperation in court
proceedings.
These
facts
are
starkly
different from the facts of the case at hand.

10. In condoning the delay, the
impugned order relies upon the Apex Court
judgment in Deputy Collector, Northern
Sub-Division Panajii v. Comunidade of
Bambolim, AIR 1996 SC 148 which has
been further affirmed in Ashok v. Rajendra
Bhausaheb Mulak, (2012) 12 SCC 27
wherein the Apex Court has held as under:

"Whether or not an appeal was
maintainable against the impugned order
was and continues to be a highly debatable
issue as seen in the foregoing paragraphs.
The Petitioners appear to have been
advised that the orders could be challenged
only by way of SLPs. That advice cannot in
the circumstances of the case, be said to be
a reckless piece of advice nor can the
Petitioners be accused of lack of diligence
in the matter when the SLPs were
admittedly filed within the period of
limitation stipulated for the purpose. The
decision of this Court in Deputy Collector,
Northern
Sub-Division
Panaji
v.
Comunidade of Bambolim, (1995) 5 SCC
333, recognizes a bonafide mistake on the
part of the counsel in pursuing a remedy as
a good ground for condonation of delay in
approaching the right forum in the right
kind of proceedings." (emphasis
supplied)

11. In light of the judgments
discussed above, the conclusion of the
learned Court below cannot be said to be an
arbitrary or capricious exercise of the
discretion vested in it under Section 5 of
the Limitation Act.

12. It is also a settled proposition of
law that the term ''sufficient cause' should
be
liberally
construed
and
that
the
discretion exercised by a Court should not
be readily interfered with unless it is found
to have been exercised in an arbitrary,
capricious or perverse manner.

13. In N. Balakrishnan v. M.
Krishnamurthy, (1998) 7 SCC 123 the
Apex Court in paragraph nos. 9, 12 and 13
has held as under:

"9.
It
is
axiomatic
that
condonation of delay is a matter of
discretion of the court. Section 5 of the
Limitation Act does not say that such
discretion can be exercised only if the delay
is within a certain limit. Length of delay is
no matter, acceptability of the explanation
is the only criterion. Sometimes delay of
the shortest range may be uncondonable
due to a want of acceptable explanation
whereas in certain other cases, delay of a
very long range can be condoned as the
explanation thereof is satisfactory. Once
the court accepts the explanation as
sufficient, it is the result of positive exercise
of discretion and normally the superior
court should not disturb such finding, much
less in revisional jurisdiction, unless the
exercise of discretion was on wholly
untenable
grounds
or
arbitrary
or
perverse. But it is a different matter when
the first court refuses to condone the delay.
In such cases, the superior court would be
free to consider the cause shown for the
delay afresh and it is open to such superior
court to come to its own finding even
untrammelled by the conclusion of the
lower court.
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
* * *

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 v. Kuntal Kumari and
State of W.B. v. Administrator, Howrah
Municipality.

13. It must be remembered that in
every case of delay, there can be some
lapse on the part of the litigant concerned.
That alone is not enough to turn down his
plea and to shut the door against him. If the
explanation does not smack of mala fides
or it is not put forth as part of a dilatory
strategy, the court must show utmost
consideration to the suitor. But when there
is reasonable ground to think that the delay
was occasioned by the party deliberately to
gain time, then the court should lean
against acceptance of the explanation.
While condoning the delay, the court
should not forget the opposite party
altogether. It must be borne in mind that he
is a loser and he too would have incurred
quite large litigation expenses. It would be
a salutary guideline that when courts
condone the delay due to laches on the part
of the applicant, the court shall compensate
the
opposite
party
for
his
loss."
(emphasis supplied)

14. To the same effect is the decision
in Bhagmal v. M.P. Cooperative Marketing
and Consumer Federation Ltd., (2003) 11
SCC 727 wherein the Apex Court held as
under:-

"3. Normally the High Court
would be wary in interfering with an order
passed in the exercise of a discretion
conferred by law particularly when such
discretion was exercised to enable a party
to pursue his statutory remedy of appeal.
No doubt the discretion has to be exercised
judicially. There is again no doubt that the
delay in filing the appeal was apparently
very long. Nonetheless the High Court in
exercising writ jurisdiction should have
been slow to upset a benefit granted to a
party in having his statutory remedy to be
pursued by condoning the delay albeit its
length.

and then

5. Whether those events were not
sufficient for condoning the delay or not
was considered by the appellate authority
in exercise of its discretion and it showed
inclination to accept them for condoning
the delay. As the appellate authority had
done so in its discretion it is well within the
jurisdiction vested under law. In such a
situation it was not proper that the High
Court in exercise of its extra-ordinary
jurisdiction under Article 226 or 227 of the
Constitution upset such a finding granted
to the appellant which only enabled him to
have the statutory remedy of appeal
pursued further."
(emphasis supplied)

15.

In
Sarpanch,
Lonand
Grampanchayat v. Ramgiri Gosavi, AIR
1968 SC 222 the Apex Court while dealing
with the power of the High Courts under
Artile 227 of the Constitution, opined as
under:

"... the High Court is vested with
the power of judicial superintendence over
the tribunal under Article 227 of the
Constitution. This power is not greater than
the power under Article 226 and is limited
to seeing that the tribunal functions within
the limits of its authority, see Nagendra
3-5 All. Jaiveer Sharma Vs. Saba Ara
1517
Nath Bora v. Commissioner of Hills
Division and Appeals, Assam. The High
Court will not review the discretion of the
Authority judicially exercised, but it may
interfere if the exercise of the discretion is
capricious or perverse or ultra vires. In
Sitaram
Ramcharan,
etc.
v.
M.N.
Nagarshana this Court held that a finding
of fact by the authority under the similarly
worded second proviso to Section 15(2) of
the Payment of Wages Act 1936 could not
be challenged in a petition under Article
227. The High Court may refuse to
interfere under Article 227 unless there is
grave
miscarriage
of
justice.
(emphasis supplied)

16. This Court is unable to find any
valid ground for interfering with the
discretion exercised by the lower Court in
condoning the delay in filing the appeal,
and this petition challenging the orders
dated 15.11.2016 passed in Misc. Case No.
61 of 2010 and order dated 27.02.2017
passed in RCA No. 18 of 2017 is
accordingly dismissed in limine. All other
questions
or
issues
on
merits
and
maintainability remain open to be raised in
the appeal.
----------
(2020)03-05ILR A1517
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2020

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

S.C.C. Revision No. 130 of 2019

Jaiveer Sharma ...Revisionist
Versus
Saba Ara ...Respondent

Counsel for the Revisionist:
Sri Rahul Sahai
Counsel for the Respondent:
Sri Rajesh Kumar Mishra, Sri Mohd. Arif

A. Civil Law-Eviction of Tenant - Recovery
of arrears - Evidentiary value of agreement,
though
unregistered
and
inadmissible
in
evidence - Held, said agreement can still be
read for collateral purpose for providing the
nature and character of the possession of the
person occupying the premises thereunder - A
person, who holds over the premises in question
under an unregistered agreement and continues
in possession, has to pay monthly rent holding
over as a 'tenant' from month-to-month. (Para 8
and 9)
SCC Revision dismissed (E-1)
(Delivered by Hon'ble Piyush Agrawal, J.)

1. Heard Shri Rahul Sahai, learned
counsel for the revisionist - defendant and
Mohd. Arif, learned counsel for respondent
- plaintiff.

2. The present SCC revision is
directed against the judgement & order
dated 30.10.2019 passed by the Additional
District Judge, Court No. 13/SCC Judge,
Agra in SCC Case No. 01 of 2018;
whereby, the the SCC suit filed by the
respondent - plaintiff - landlord for
recovery of arrears of rent and eviction of
the petitioner - defendant - tenant from the
property in dispute has been allowed.

3. It has been averred that the the
respondent - plaintiff - landlord instituted
an SCC Suit for payment of arrears of rent,
ejectment and mesne profit. The respondent
- plaintiff was running a hotel in the name
of "Mumtaz Bila". On account of her going
to Kuwait, she let out the hotel in question
to
the
revisionists
-
defendant
on
01.03.2016 determining the rate of rent for
the first year at Rs. 5 lacs per annum;
whereafter, the same was to be paid at the