I have perused the impugned order dated 20.11.2009 and other material on record. On a bare perusal of impugned order, it reveals that trial Court was of the view that application under Order 9 Rule 13 CPC has been filed after 11 months of passing of the ex-parte decree in C.S. No. 11-A/2007 and there was no application under section 5 of Limitation Act for condonation of delay. In similar circumstances, in the case of Suresh Kumar and others Vs. Firm Kurban Hussain Taiyab Ali and others (supra) this Court has laid down that a formal application for condonation of delay is not necessary, however, if the Court is of the opinion that in the absence of formal application, delay cannot be condoned, then it is always the duty of the Court to give an opportunity to the applicant to move the application under section 5 of the Limitation Act explaining the cause of delay and seeking the condonation of delay.
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Madhya Pradesh High Court
Pushpa Jain vs Naresh on 15 April, 2011
1. The appellants have preferred this appeal being aggrieved by order dated 20.11.2009 passed in unregistered/2009 by Additional District Judge, Pawai, District Panna (Fast Track) dismissing the application of the appellants filed under Order 9 Rule 13 of CPC for setting aside the ex-parte decree passed against them in Civil Suit No. 11-A/2007.
2. Brief facts necessary for disposal of this appeal are that respondent No. 1/plaintiff had filed Civil Suit No. 11- A/2007 against the appellants for partition and possession over the 1/4th part of disputed house. Rakesh Jain, (defendant No.2 in the aforesaid civil suit) died during the pendency of appeal and an application under Order 22 Rule 4 was filed by the plaintiff to bring the his LRs on record, which was allowed on 22.8.2007. Appellant No. 1 and others were added as defendants in place of Rakesh Jain. Nobody appeared in the Court on behalf of appellant No. 1 Pushpa Jain, therefore, Court proceeded ex-parte against her on 12.9.2007. On 8.10.2007, no body appeared on behalf of defendants No. 1 to 3 and trial Court proceeded ex-parte against them. After recording the ex- parte evidence, learned trial Court passed ex-parte decree on 29.11.2008.
3. It was further pleaded that appellant No. 1 got knowledge regarding aforesaid ex-parte decree on 18.9.2009 and thereafter, she moved an application under Order 9 Rule 13 of CPC for setting aside the ex-parte judgment and decree passed by learned trial Court on 1.10.2009, same was dismissed by the impugned order, hence this appeal.
4. Learned counsel for the appellant has submitted that the trial Court committed illegality in dismissing the application under Order 9 Rule 13 of CPC only on the basis that appellants failed to file application for condonation of delay under section 5 of the Limitation Act. He further submitted that if the Court was of the opinion that the application for setting aside the ex-parte decree was barred by limitation then an opportunity, for filing the application under section 5 of Limitation Act for condonation of delay, ought to have been given to the appellants. He placed reliance on the principles laid down by this Court in Suresh Kumar and others Vs. Firm Kurban Hussain Taiyab Ali and others - AIR 1996 MP
151.
5. Learned counsel for respondents has justified the findings recorded and supported the judgment passed by the trial Court.
6. I have perused the impugned order dated 20.11.2009 and other material on record. On a bare perusal of impugned order, it reveals that trial Court was of the view that application under Order 9 Rule 13 CPC has been filed after 11 months of passing of the ex-parte decree in C.S. No. 11-A/2007 and there was no application under section 5 of Limitation Act for condonation of delay. In similar circumstances, in the case of Suresh Kumar and others Vs. Firm Kurban Hussain Taiyab Ali and others (supra) this Court has laid down that a formal application for condonation of delay is not necessary, however, if the Court is of the opinion that in the absence of formal application, delay cannot be condoned, then it is always the duty of the Court to give an opportunity to the applicant to move the application under section 5 of the Limitation Act explaining the cause of delay and seeking the condonation of delay.
7. I have no ground to take a different view than taken in the case of Suresh Kumar and others (supra). The trial Court ought to have given the opportunity to the appellants/applicants to explain the delay caused in filing the application under Order 9 Rule 13, thus, the impugned order passed by the trial Court is not sustainable, same is liable to be set aside.
8. Resultantly, the appeal is allowed to the aforesaid extent. Impugned order is set aside. Matter is remitted back to the trial Court with direction that trial Court shall provide an opportunity to appellants/applicants to file application under section 5 of the Limitation Act and to explain the delay caused in filing the appeal. Parties are directed to appear before the trial Court on 22.6.2011. Office is directed to remit the record immediately along with the copy of this order. No order as to costs.
(G.S.Solanki) Judge PB
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