RAMJI PANDEY AND ORS. versus SWARAN KALI

Citation: [2010] 12 S.C.R. 864 · Decided: 25-10-2010 · Supreme Court of India · Bench: MUKUNDAKAM SHARMA · Disposal: Dismissed

Judgment (excerpt)

A 
8 
[2010] 12 S.C.R. 864 
RAMJI PANDEY AND ORS. 
V. 
SWARAN KALI 
(Civil Appeal No. 9335 of 201 0) 
OCTOBER 25, 201 0 
[DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE, 
JJ.] 
Limitation Act, 1963: s. 5 r. w. s. 14 - Delay in filing appeal 
C - Condonation of- Held: On facts, delay cannot be condoned 
since party seeking condonation was not only negligent but 
a/so had pursued the entire case without due diligence. 
The respondent filed a suit for declaration against the 
0 appellants. The appellants filed a written statement but 
thereafter failed to appear in the suit and, therefore, an 
ex parte decree was passed in favour of the respondent. 
The recall application filed by the appellants under Order 
IX Rule 13 C.P.C. for setting aside the ex-parte decree 
E was rejected by the trial court 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 
were not entitled to the relief of setting aside the ex parte 
decree. The appellants filed an appeal before the District 
Court which was allowed. In terms of the valuation of the 
F 
G 
H 
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. 
Since the said 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. 
During the pendency of the said writ petition , the 
pecuniary jurisdiction of the District Court was increased 
from Rs. 20,000/- to Rs. 5 lacs and, therefore, the High 
864 
RAMJI PANDEY AND ORS. v. SWARAN KALI 
865 
During the pendency of the said writ petition, the 
A 
pecuniary jurisdiction of the District Court was increased 
from Rs. 20,000/- to Rs. 5 lacs and, therefore, the High 
Court held that 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 
B 
Court. 
The appellants moved the application under Section 
5 read with Section 14 of the Limitation Act before the 
District Court. The respondent filed objection to the 
C 
application on the ground that the appellants did not act 
in good faith nor did they act with due care and attention 
and, therefore, delay should not be condoned. The 
District Court allowed the application. The respondent 
filed appeal before the High Court. On 28.2.2006, the High 
Court held that the objection of the respondent was well-
D 
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 and the appellants ignored 
the said objection and the District Court while allowing 
E 
the application filed by the appellants, also ignored the 
said fact which was specifically pleaded in the objection 
filed by the respondent. The instant appeal was filed 
challenging the order of the High Court. 
F 
Dismissing the appeal, the Court 
HELD: 1.1. The appellants were not only negligent 
but had been acting and pursuing the entire matter 
without due diligence as was apparent from the fact that 
they initially failed to pursue the suit in right earnest, G 
having failed to appear and contest the suit, due to which 
an ex-parte decree was 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 objection filed by the respondent. Despite 
H 
866 
SUPREME COURT REPORTS 
[2010] 12 S.C.R. 
A 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 
B 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-parte decree was 
c being dragged on one way or the other by filing 
application/appeal. [Para 14] [871-D-H; 872-AJ 
1.2. In the list of dates, the appellants themselves 
had stated that they had come to know about the 
passing of the impugned order dated 28.02.2006 by the 
D

Excerpt shown. Read the full judgment & AI analysis in Lexace.