The application under Order 9 Rule 13 CPC
itself had all the ingredients of the application
for condonation of delay in making that
application. Procedure is after all handmaid of
justice.” {Para 13}
12. From the above cases, it is clear that there was no need
to file a separate application for condonation of delay in
the present case as well. The High Court has erred in
taking a hyper technical view and concluding that there
was violation of mandatory provision of law. Endorsing
such a view would effectively mean ignoring the purpose
of judicial procedure. The procedure cannot stand in
the way of achieving just and fair outcome. In the
present case, the Appellant acted bona fide and
diligently. His conduct does not violate any rule of law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SLP (C.) NO.11259 OF 2022
DWARIKA PRASAD (D) THR. LRs. Vs PRITHVI RAJ SINGH.
Author: VIKRAM NATH, J.
Citation: 2024 INSC 1030.
Dated: DECEMBER 20, 2024.
1. Leave granted.
2. This appeal assails the final judgement and order
passed by Allahabad High Court in Writ Petition
No.18990/2024 on 24.05.2022 whereby the High Court
dismissed the Writ Petition and upheld the order of the
District Judge, Etah in Civil Revision No.53 of 2000. The
District Court, Etah (“Revisional Court”) had allowed
the Civil Revision filed by Respondent Prithvi Raj Singh
under section 115 of Civil Procedure Code (“CPC”)
against the order dated 29.04.2000 passed by
Additional Civil Judge (Junior Division) Kasganj (“Trial
Court”) in Civil Miscellaneous Case No.33/1994. The
Trial Court thereby had allowed the restoration
application under Order IX Rule 13 and section 151 of
CPC filed by the Appellant Dwarika Prasad. The High
Court has effectively dismissed the restoration
application, confirming the ex parte decree dated
11.04.1994 passed in favor of Respondent.
3. The facts leading to the present appeal are stated below:
3.1. Respondent-Plaintiff Prithviraj Singh instituted a
civil suit registered as O.S. No.81 of 1988 seeking
declaration of a sale deed as null and void on the
ground of fraud played by the Appellantdefendant. Plaintiff averred that his grandfather
Shri Guljari Lal was a bhumidhar with
transferable rights of agricultural plot No. 315
area 0.66 Hectare, situated at Itwarpur, ParganaSahawar, District Etah and also of agricultural
plot No.141 area 0.34 Hectare situated at Village
SLP (C.) NO.11259 OF 2022 Page 3 of 13
Bodha Nagria. In the name of providing treatment,
Appellant-defendant Dwarika Prasad took the
grandfather of plaintiff to Kasganj. On 16.01.1979
the appellant got a sale deed executed by his
grandfather by way of fraud in his favour.
3.2. The Court of First Additional Munsif, Kasganj,
Etah decreed the suit ex parte by order dated
11.04.1994 on account of non-appearance of
defendant and declared the sale deed in question
to be void and unenforceable.
3.3. The Appellant-defendant filed restoration
application under Order IX Rule 13 and Section
151 of CPC on 31.10.1994. He stated that he was
uneducated, naïve and old aged person unable to
understand Court proceedings; he had put full
faith in his previous counsel Shri Ramgopal Singh.
However, on 26.10.1994 the Respondent and his
brothers publicly said to the Appellant that they
have got the sale deed cancelled and have also got
the name of the Appellant removed. As suspicion
SLP (C.) NO.11259 OF 2022 Page 4 of 13
arose in the Appellant’s mind, he appointed Shri
Ashok Kumar Verma as his counsel who inspected
the file in the Revenue Court, Kasganj. The
Appellant was informed about the ex parte decree,
on 27.10.1994. The Counsel for the Appellant
found copy of the ex parte decree the next day on
28.10.1994. Accordingly, on 31.10.1994 the
Appellant filed the restoration application. The
Appellant stated in the application that his
previous counsel Shri Ramgopal Singh played
fraud over him as he conspired with Respondent.
4. The Trial Court allowed the restoration application and
set aside the ex parte decree by order dated 29.04.2000.
It found that the Appellant is illiterate and he has put
thumb impressions wherever his counsel asked him to
put. He was kept unaware of the legal proceedings by
the previous counsel. Only after the revenue court
rejected the proceedings initiated by the Appellant for
mutation, the new counsel was appointed. As the new
counsel came to know about the ex parte decree, the
restoration application has been filed. The Trial Court
SLP (C.) NO.11259 OF 2022 Page 5 of 13
thus held that the Appellant cannot suffer due to errors
of his counsel and it found it justifiable to provide full
opportunity of hearing to the Appellant.
5. Thereafter on 10.05.2000, the Respondent filed
Revision (Civil Revision No.51 of 2000) under section
115 of CPC against the order of the Trial Court dated
29.04.2000. Respondent claimed that the restoration
application is time barred and the Appellant had
knowledge of ex parte decree since beginning. The
Additional District Judge at Etah allowed the Revision,
holding that the Appellant did not move the application
under section 5 of the Limitation Act, which is a
mandatory requirement when the application under
Order IX Rule 13 of CPC is filed after a considerable
delay and such delay requires explanation. Thus, the
District Court, by order dated 17.02.2004, held that the
order of the Trial Court was in violation of mandatory
provisions of law.
6. Aggrieved, the Appellant filed Writ Petition being Civil
Miscellaneous Writ Petition No.18990 of 2004 against
SLP (C.) NO.11259 OF 2022 Page 6 of 13
the order of the District Judge dated 17.02.2004. The
Appellant pleaded that the District Court has taken a
hyper technical approach in dismissing the restoration.
Further, he had clearly submitted in the restoration
application that he came to know about the ex parte
decree on 28.10.1994 and without further delay he filed
restoration application on 31.10.1994. Thus, from the
date of knowledge, the limitation for filing the
application will start. There was no requirement of filing
a separate application for condonation of delay as the
restoration application itself was not time barred.
7. The High Court by the impugned order dated
24.05.2022, dismissed the Writ petition filed by the
Appellant. The High Court has held that the limitation
for filing application under Order IX Rule 13 CPC is 30
days and it starts running from the date of the decree.
As the ex parte decree was passed on 11.04.1994, the
limitation for filing the restoration application expired
on 11.05.1994. However, the application was filed by
the Appellant on 31.10.1994, which is about five
months after expiry of the limitation. Since the
SLP (C.) NO.11259 OF 2022 Page 7 of 13
application was filed beyond time, it must be
accompanied with an application under section 5 of the
Limitation Act praying for condonation of delay. As no
such application was filed by the Appellant, there was
no proper application under Order IX Rule 13 of CPC in
the eye of law. Thus, the High Court held that the Addl.
District Judge was correct in allowing the Revision.
8. The Appellants preferred the Special Leave to Appeal
before this Court against the order of the High Court.
This Court has issued notice and granted six weeks’
time to file the counter affidavit on 20.07.2022. The
Respondent has not filed the counter affidavit till date.
The counsel for Respondent had put in appearance, way
back in October 2022. He was not present on multiple
dates including the last date, when this matter was
heard on 09.12.2024.
9. We have heard learned counsel for the appellant and
perused the record. We are of the opinion that the High
Court has erred in upholding the order of the Additional
District Judge. The Trial Court had rightly allowed the
SLP (C.) NO.11259 OF 2022 Page 8 of 13
restoration application filed by the Appellant under
Order IX Rule 13 of CPC. It is well settled that Courts
should not shut out cases on mere technicalities but
rather afford opportunity to both sides and thrash out
the matter on merits. Further, we cannot let the party
suffer due to negligent or fault committed by their
counsel. This principle has been enunciated by this
court in the case of Rafiq v. Munshilal1
, quoted as
follows:
“3. The disturbing feature of the case is that
under our present adversary legal system where
the parties generally appear through their
advocates, the obligation of the parties is to select
his advocate, brief him, pay the fees demanded by
him and then trust the learned Advocate to do the
rest of the things. The party may be a villager or
may belong to a rural area and may have no
knowledge of the court's procedure. After
engaging a lawyer, the party may remain
supremely confident that the lawyer will look after
his interest. At the time of the hearing of the
appeal, the personal appearance of the party is
not only not required but hardly useful. Therefore,
the party having done everything in his power to
effectively participate in the proceedings can rest
assured that he has neither to go to the High
1
(1981) 2 SCC 788
SLP (C.) NO.11259 OF 2022 Page 9 of 13
Court to inquire as to what is happening in the
High Court with regard to his appeal nor is he to
act as a watchdog of the advocate that the latter
appears in the matter when it is listed. It is no
part of his job. Mr A.K. Sanghi stated that a
practice has grown up in the High Court of
Allahabad amongst the lawyers that they remain
absent when they do not like a particular Bench.
Maybe, we do not know, he is better informed in
this matter. Ignorance in this behalf is our bliss.
Even if we do not put our seal of imprimatur on
the alleged practice by dismissing this matter
which may discourage such a tendency, would it
not bring justice delivery system into disrepute.
What is the fault of the party who having done
everything in his power expected of him would
suffer because of the default of his advocate. If we
reject this appeal, as Mr A.K. Sanghi invited us to
do, the only one who would suffer would not be
the lawyer who did not appear but the party
whose interest he represented. The problem that
agitates us is whether it is proper that the party
should suffer for the inaction, deliberate
omission, or misdemeanour of his agent. The
answer obviously is in the negative. Maybe that
the learned Advocate absented himself
deliberately or intentionally. We have no material
for ascertaining that aspect of the matter. We say
nothing more on that aspect of the matter.
However, we cannot be a party to an innocent
party suffering injustice merely because his
chosen advocate defaulted. Therefore, we allow
SLP (C.) NO.11259 OF 2022 Page 10 of 13
this appeal, set aside the order of the High Court
both dismissing the appeal and refusing to recall
that order…..”
10. In the present case, the appellant has trusted his
counsel to manage the suit proceedings. However, he
was not made aware of the ex-parte decree by his
previous counsel. It is only after the appointment of the
new counsel, the appellant got to know about the exparte decree. Therefore, the Additional Sessions Judge
ought not to have exercised the revisional jurisdiction
in interfering with the order of the Trial Court where it
had exercised its discretion in setting aside the ex-parte
decree for justifiable reasons accepting the reasons
given by the defendant-appellant.
11. The Appellant has relied upon the following judgments
in support of his submissions. In Bhagmal and Ors Vs.
Kunwar Lal and Others2
this Court held as follows;
“12. It is to be seen here that the question of delay
was completely interlinked with the merits of
the matter. The appellant-defendants had
2 2010 (12) SCC 159.
SLP (C.) NO.11259 OF 2022 Page 11 of 13
clearly pleaded that they did not earlier come
to the court on account of the fact that they
did not know about the order passed by the
court proceeding ex parte and also the ex
parte decree which was passed. It was further
clearly pleaded that they came to know about
the decree when they were served with the
execution notice. This was nothing, but a
justification made by the appellantdefendants for making Order 9 Rule 13
application at the time when it was actually
made. This was also a valid explanation of the
delay. The question of filing Order 9 Rule 13
application was, in our opinion, rightly
considered by the appellate court on merits
and the appellate court was absolutely right in
coming to the conclusion that the appellantdefendants were fully justified in filing the
application under Order 9 Rule 13 CPC at the
time when they actually filed it and the delay
in filing the application was also fully
explained on account of the fact that they
never knew about the decree and the orders
starting the ex parte proceedings against
them. If this was so, the Court had actually
considered the reasons for the delay also.
Under such circumstances, the High Court
should not have taken the hypertechnical view
that no separate application was filed under
Section 5.
13. The application under Order 9 Rule 13 CPC
itself had all the ingredients of the application
for condonation of delay in making that
application. Procedure is after all handmaid of
justice.”
12. From the above cases, it is clear that there was no need
to file a separate application for condonation of delay in
the present case as well. The High Court has erred in
taking a hyper technical view and concluding that there
was violation of mandatory provision of law. Endorsing
such a view would effectively mean ignoring the purpose
of judicial procedure. The procedure cannot stand in
the way of achieving just and fair outcome. In the
present case, the Appellant acted bona fide and
diligently. His conduct does not violate any rule of law.
13. In view of the above discussion, we allow this appeal,
set aside the impugned order dated 24.05.2022 passed
by High Court, and allow the writ petition and restore
that of the Trial Court dated 29.04.2000. The Trial
Court to proceed with O.S. No.81 of 1988 in accordance
with law. As the suit is an old one, we further direct the
Trial Court to expedite hearing of the suit and make an
endeavour to decide the same within a year. It goes
without saying that parties to the suit shall extend all
cooperation in disposal of the suit.
14. There shall be no order(s) at to costs.
……………………………..J.
(VIKRAM NATH)
……………………………..J.
(PRASANNA B. VARALE)
NEW DELHI
DECEMBER 20, 2024
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