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Bhoori Singh v. Babu Lal - MATTERS UNDER ARTICLE 227 No. - 794 of 2007 [2007] RD-AH 17012 (29 October 2007)

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Court No. 6

Civil Misc. Application No. 794 of 2007

Bhoori Singh (Deceased) & Ors.,


Babu Lal (Deceased) & Ors.,


Hon. Dilip Gupta, J.

This Application under Article 227 of the Constitution has been filed by the defendant of Original Suit No. 457 of 1992 that had been filed by Babu Lal for specific performance of the agreement dated 1st July, 1988.

A written statement was filed by the defendant and though the evidence of the plaintiff was recorded but the defendant repeatedly moved applications for adjournment on the ground of illness. The Trial Court ultimately rejected the last application for adjournment and by the order dated 10th July, 2001 fixed 11th July, 2001 for evidence of the defendant. The defendant, however, again did not appear on 11th July, 2001 as a result of which the Trial Court passed an order on that date that the case shall proceed under Order 17 Rule 2 of the Code of Civil Procedure (hereinafter referred to as ''CPC') and fixed 19th July, 2001 for arguments. The Trial Court ultimately by means of the judgment and decree dated 6th August, 2001 decreed the suit for specific performance and directed that the sale deed shall be executed within three months. The plaintiff then filed Execution Case No. 1 of 2002.

It is said that the petitioners then came to know about the judgment and decree dated 6th August, 2001 and, therefore, moved an application dated 2nd May, 2002 before the Trial Court under Order 9 Rule 13 CPC. This application was supported by the affidavit of Smt. Angoori Devi. The Trial Court rejected the application under Order 9 Rule, 13 CPC by the order dated 15th April, 2004 against which Miscellaneous Civil Appeal No. 51 of 2004 was filed which dismissed by the order dated 20th July, 2007. The Courts below have noticed that various applications were moved at the behest of the defendant Bhoori Singh for adjournment on the ground of illness and for this purpose the counsel must have been briefed by some person but this fact has not been disclosed. The Courts below have also noticed that the defendant was living along with his sons and his wife and if the Courts had been fixing dates and he was actually ill, then there appears to be no reason why Bhoori Singh would not have mentioned about the case to his sons and wife. The Courts have, therefore, disbelieved the version of the petitioners that they had no knowledge about the pendency of the suit and the Courts have also observed that along with the application under Order 9 Rule 13 of the CPC, an application under Section 5 of the Limitation Act was also not moved for explaining the delay. The reasons indicated by the Courts for rejecting the application under 9 Rule, 13 of the CPC are cogent reasons and it cannot be said that the conclusion drawn is against the record.

The Supreme Court has emphasised in Surya Dev Rai Vs. Ram Chander Rai & Ors., (2003) 6 SCC 675 that in exercise of the supervisory jurisdiction the Court can interfere with the order when there is a patent error and patent error is one which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. It has also been observed that where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

In such circumstances, when learned counsel for the petitioners has not been able to point out any patent error, no interference is called for.

The petition is, accordingly, dismissed.

Date: 29.10.2007



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