MOHD. SAHID AND OTHERS versus RAZIYA KHANAM (D) THR. LRS. AND ANOTHER

Citation: [2018] 12 S.C.R. 963 · Decided: 10-10-2018 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Leave Granted & Dismissed
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Judgment (excerpt)

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MOHD. SAHID AND OTHERS
v.
RAZIYA KHANAM (D) THR. LRS. AND ANOTHER
(Civil Appeal No.10379 of 2018)
OCTOBER 10, 2018
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
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
 [2018] 12 S.C.R. 963
  963
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964
SUPREME COURT REPORTS
[2018] 12 S.C.R.
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]
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10379
of 2018.
From the Judgment and Order dated 15.10.2015 of the High Court
of Judicature at Allahabad in Second Appeal No. 819 of 2015
Yatindra Singh, Sr. Adv.,  D. V. Singh,
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