Suit – Respondent No.1(since dead) filed suit against the appellants inter alia for permanent injunction against them over the suit land – Appellants did not appear in the suit and it was decreed vide ex-parte order dated 10.05.2012 – In appeal, the appellants filed application for condonation of delay on the ground that the appellants came to know of the judgment in the suit for the first time on 06.05.2013 through a police constable when they went to attend the hearing in another case before the Sub-Divisional Magistrate – Dismissed – High Court dismissed second appeal – On appeal, held: Statement of the appellants that they got knowledge about the judgment of the trial court in the suit for the first time on 06.05.2013 is incorrect – Certified copy of the order sheets dated 11.10.2011 and 14.10.2011 in the suit show that on 11.10.2011, parties were present in the trial court – Order sheet and other materials clearly show that the appellants had full knowledge about the proceedings of the suit – Both the First Appellate Court and the High Court recorded concurrent findings that the appellants filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay – No perversity or infirmity in the impugned order warranting interference.
Dismissing the appeal, the Court
HELD: 1.1 The statement of the appellants that they got knowledge about the judgment of the trial court dated 10.05.2012 in the Suit for the first time on 06.05.2013 is incorrect. Certified copy of the order sheet dated 11.10.2011 and 14.10.2011 in the suit shows that on 11.10.2011, parties were present in the trial court. 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. 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 said judgment dated 10.05.2012, the trial court has recorded that in spite of opportunities, the appellants-defendants did not appear. 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 suit. The High Court has rightly observed that the appellants have not come out with the correct facts. [Paras 15, 16] [968-G-H; 969-A-B, F-G]
1.2 On behalf of the respondents, it is stated that in the proceedings before the Sub-Divisional Magistrate, the appellants filed the application on 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 the suit even on 23.11.2012. While so, the appellants filed application with incorrect averments that they got knowledge about the judgment and decree only on 06.05.2013 when constable of the Police Station gave them the information. [Para 17] [970-E-G]
1.3 The order sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of the suit 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. There is no perversity or infirmity in the impugned order warranting interference. [Para 19] [971-C-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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