REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.        OF 2010 [ Arising out of SLP (C) No. 30266 of 2008 ]

RAMJI PANDEY & ORS.             ……. Appellants

Versus

SWARAN KALI              ......Respondent   

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The question that falls for determination in this appeal is  

whether  to  uphold  the  impugned  judgment  and  order  

passed by the  High Court  of  Allahabad or  to restore  the

order dated 24.02.1992 passed by the  Additional  District  

Judge,  Allahabad.  By  the  impugned  judgment  and  order  

dated 28.02.2006 the Allahabad High Court has set aside  

and  quashed  the  order  dated  24.02.1992  passed  by  the  

Additional District Judge, Allahabad in Misc. Case no. 494  

of 1991.  

3. The respondent herein filed suit no. 508 of 1983 before the  

Additional Civil Judge, Allahabad against the appellants for  

the relief of declaration that she was also one of the owners  

and  co-sharers  in  the  property  constituting  a  house  

numbering  172,  Lookerganj,  Allahabad  and  her  name  

should also be shown as one of the purchasers of the said  

house  in  dispute  in  the  sale  deed  alleged  to  have  been  

executed in their favour by its earlier owner. The aforesaid  

suit  was  earlier  contested  by  the  appellants  herein  but  

subsequently they failed to appear and consequently an ex  

parte decree was passed in the said suit in favour of the  

respondent on 10.05.1988 by the Additional Civil Judge.

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4. Thereafter,  the appellants herein filed a recall  application  

under Order IX Rule 13 Code of Civil Procedure [for short  

“C.P.C.”]  for  setting  aside  the  ex  parte decree.  The  said  

application however after consideration was rejected by the  

Additional  Civil  Judge,  Allahabad  vide  order  dated  

04.05.1989.  Aggrieved  by  the  said  order,  the  present  

appellants  filed  Miscellaneous  Appeal  no.  154  of  1989  

before the Additional District Judge, Allahabad which was  

allowed with the direction that the regular suit no. 508 of  

1983  be  proceeded  in  accordance  with  law.  The  said  

judgment was passed by the District Court on 04.01.1991.  

5. At the time when the original suit was filed, the value of the  

suit  was  more  than  Rs.  20,000/-  and,  therefore,  the  

pecuniary jurisdiction to file the said appeal lay in the High  

Court and not in the District Court. Therefore, aggrieved by  

the  order  dated 04.01.1991 passed by the District  Court  

allowing  the  appeal,  the  respondent  filed  a  writ  petition  

which  was  registered  as  Writ  Petition  No.  9638 of  1991.  

However, during the interregnum period and while the said  

petition  was  pending,  the  pecuniary  jurisdiction  of  the  

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District Court was increased from Rs. 20,000/- to Rs. 5 lacs  

and, therefore, appropriately at the time of passing of the  

order, the jurisdiction was with the District Court. The High  

Court, therefore, passed an order that it would be open to  

the  defendant  to  move  an  application  for  condonation  of  

delay before the District Judge.

6. In  terms  of  the  aforesaid  order  of  the  High  Court,  the  

appellants  moved  an  application  before  the  Additional  

District Judge, Allahabad under Section 5 read with Section  

14 of the Limitation Act [for short “the Act”] and an appeal  

was registered as appeal no. 494 of 1991. The respondent  

herein  filed  an  objection  to  the  application  filed  by  the  

appellants  under  Section  5  read  with  Section  14  of  the  

Limitation  Act  contending  inter  alia that  the  appellants  

herein did not act in good faith nor had they acted with due  

care and attention so as to enable them to get the benefit of  

Section 14 of  the  Limitation  Act  and,  therefore,  the  time  

spent by them in pursuing the matter in the wrong forum  

should not and cannot be condoned.

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7. The plea taken by the appellants in the application under  

Section 5 read with Section 14 of the Act was that they had  

been wrongly advised by the senior counsel that pecuniary  

jurisdiction of the High Court was that of the District Court  

and, therefore, the defendants abided by the advice given to  

them by the senior counsel and pursued the matter in that  

forum until the same was decided.  

8. On the  other  hand,  the  respondent  had argued  that  the  

appellants had knowledge of the suit which had been filed  

but  failed  to  appear  in  the  said  suit  and  also  failed  to  

contest the suit and, therefore, the same was decreed. The  

application  filed  for  setting  aside  the  decree  was  also  

rejected  by  the  Additional  Civil  Judge,  Allahabad  on  

04.05.1989.  Against  the  said  order,  appellants  filed  

Miscellaneous  Case no.  154 of  1989 in  the  wrong forum  

which,  in  fact,  was  also  pointed  out  by  the  respondent  

herein in the objection filed on 01.07.1989. It was pointed  

out  clearly  in  the  said  objection at  para  5  that  the  said  

District Court has no pecuniary jurisdiction to entertain the  

appeal arising out of the original suit no. 508 of 1983 being  

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valued at Rs. 46,000/- and that the appeal was required to  

be filed before the High Court.  

9. Despite the aforesaid objections taken by the respondent,  

the Additional District Judge allowed the said application by  

the order dated 24.02.1992. In the order dated 28.02.2006  

the High Court held that the order passed by the Additional  

District Judge was incorrect and unjustified as this was not  

a case for grant of indulgence under Section 14 of the Act as  

it could not have been said that the appellants herein acted  

in good faith or with due diligence in order to get the benefit  

of  Section  14  of  the  Act.  Since  the  aforesaid  order  is  

challenged  in  the  present  appeal  and  since  notice  was  

issued pursuant to which the respondent has also entered  

appearance, we heard the learned counsel appearing for the  

parties at length.

10.The counsel appearing for the parties made their respective  

submissions and in support of their contentions they also  

relied  upon  and  referred  to  some  of  the  documents  on  

records.  

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11.The suit was filed by the respondent herein in the Court of  

Additional Civil Judge, Allahabad for a declaration that she  

was a co-sharer in the suit property to the extent of one half  

share in the same wherein she also sought for a direction  

that  her  name  be  entered  in  the  agreement  dated  

01.07.1983 and sale deed dated 16.01.1984. Although, the  

appellants herein filed a written statement,  they failed to  

appear  in  the  suit  thereafter  and,  therefore,  an  ex  parte  

decree  was  passed  in  favour  of  the  respondent  vide  

judgment  and  order  dated  10.05.1988.  The  recall  

application filed by the appellants under Order IX Rule 13  

C.P.C. for setting aside the ex-parte decree was rejected by  

the  Additional  Civil  Judge  on the  ground that  there  was  

negligence  and  lack  of  due  diligence  on  the  part  of  the  

appellants in pursuing the matter and, therefore, they are  

not entitled to the relief of setting aside the ex parte decree.  

In terms of the valuation of the suit,  an appeal from the  

said order should have been preferred before the High Court  

wherein the pecuniary jurisdiction to file the said appeal lay  

at the relevant time. Ignoring the said specific provision, an  

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appeal  was  preferred  before  the  District  Court.  The  

aforesaid appeal filed was allowed and it was directed that  

the  regular  suit  no.  508  of  1983  be  proceeded  with  in  

accordance with law which was tried and decided. Since the  

aforesaid  order  was  without  jurisdiction  as  the  District  

Court  did  not  have  pecuniary  jurisdiction  a  writ  petition  

was filed in the High Court by the respondent which was  

entertained.  Since  during  the  pendency  of  the  said  writ  

petition in the High Court the pecuniary jurisdiction of the  

District  Court  was  increased from Rs.  20,000/-  to  Rs.  5  

lacs,  therefore,  the  High  Court  held  that  now an  appeal  

would lie before the District Court and, therefore, the same  

could be filed with an application for condonation of delay  

before the District Judge.

12.The appellants moved the said application under Section 5  

read with Section 14 of the Limitation Act. At the time of  

hearing  of  the  said  appeal,  it  was  pointed  out  in  the  

objection  filed  by  the  respondent  against  the  application  

under Section 5 read with Section 14 of the Act at a very  

early stage that such an appeal is not maintainable before  

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the  District  Court  as  it  lacked  pecuniary  jurisdiction  to  

entertain the said appeal and, therefore, it would have been  

appropriate for the appellants to withdraw the appeal and  

file  appropriate  proceedings  before  the  High  Court.  The  

same having not been done and having obtained an order in  

their  favour  which  ex  facie was  illegal  and  without  

jurisdiction  the  appellants  are  not  entitled  to  take  the  

benefit of Section 5 read with Section 14 of the Limitation  

Act.  

13.The  High  Court  considered  the  entire  facts  and  

circumstances of the case and then held that the aforesaid  

objection of the respondent is well-founded, particularly in  

view  of  the  fact  that  at  the  very  initial  stage  itself  the  

respondent  had  taken  a  clear  objection  that  the  District  

Court did not have jurisdiction to try and decide the appeal.  

Not only did the appellants ignore the said objection, but  

the  Court  while  allowing  the  application  filed  by  the  

appellants, also ignored the said fact which was specifically  

pleaded in the objection filed by the respondent.

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14.The aforesaid conclusions which have been arrived at by the  

High  Court  are  relevant  facts.  Considering  the  entire  

records, we find that the appellants are not only negligent  

but  have  been  acting  and  pursuing  the  entire  matter  

without due diligence as would be apparent from the fact  

that they initially failed to pursue the suit in right earnest,  

having failed to appear and contest the suit, due to which  

an  ex-parte decree  had  to  be  passed  by  the  court.  Even  

thereafter, they failed to file the appeal in the proper forum,  

which was brought to their notice right at the initial stage  

by the respondent’s filing of an objection. Despite the said  

fact, they did not take any step to withdraw the same and  

continued with the proceedings which was void ab initio and  

without  jurisdiction  and  also  obtained  an  order  in  their  

favour.  Even before  the High Court,  where the impugned  

order was passed the appellants did not appear on the date  

of arguments or even on the previous dates. Absence of due  

diligence in pursuing the matter is writ large on the face of  

the records. Suit of 1983 was decreed ex-parte in the year  

1988 and thereafter the proceeding for setting aside the ex-

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parte decree is being dragged on one way or the other by  

filing application / appeal  and is dragging the matter  till  

date.

15.In the list of dates the appellants themselves have stated  

that  they  had  come  to  know  about  the  passing  of  the  

impugned order dated 28.02.2006 by the High Court only  

on 30.08.2007 and they filed a regular application only on  

12.09.2007 and by order dated 05.10.2007 the said regular  

application was rejected on the ground of laches because  

the  counsel  of  the  respondent  was  not  served.  Even  

thereafter, the appellants again filed a regular application  

for  service upon the respondent by registered post which  

was also rejected by order dated 02.09.2008 by the High  

Court.

16.In  view  of  the  facts  delineated  herein,  we  are  of  the  

considered  opinion  that  the  conduct  of  the  appellants  

throughout lack due diligence and they have been pursuing  

the entire matter negligently.  

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17.Therefore, we find no reason to interfere with the detailed  

and speaking order passed by the High Court. The appeal  

has no merit and is dismissed with no order as to costs.

...........………………………J. [Dr. Mukundakam Sharma]

…...............………………..J.       [ Anil R. Dave ]

New Delhi, October 25, 2010.

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