IMPORTANT POINT
The rejection of applications for condonation of delay in filing petitions under Order 9 Rule 13 of CPC leads to the dismissal of the main petitions, making them appealable under Order XLIII Rule 1(d) of CPC.

JUDGMENT :

PRASENJIT BISWAS, J.

1. These revision applications are directed against orders dated 09.12.2011 passed by the learned Civil Judge, Junior Division, Additional Court, Berhampore passed in Miscellaneous Cases No. 38 of 2010, 39 of 2010 and 40 of 2010 by which applications under Section 5 of the Limitation Act are rejected. Consequently, upon the rejection of the said applications praying for condonation of delay the petition filed under Order 9 Rule 13 of CPC with prayers for setting aside the ex-parte orders were also rejected.

2. The opposite parties filed Miscellaneous Cases being No. 24 of 1999, 23 of 1999 and 25 of 1999 under Sections 8 and 9 of the West Bengal Land Reforms Act with prayers for getting orders of preemption in respect of “Ka” Schedule property mentioned in the applications. Those cases were decreed ex-parte against the present petitioner. Thereafter, applications were taken out on behalf of this petitioner under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said ex-parte orders passed against them. As the said applications filed under Order 9 Rule 13 of CPC were filed beyond the statutory period of limitation applications under Section 5 of the Limitation Act for condonation of delay were also filed. The learned Trial Court after giving opportunity of hearing to the both sides found no plausible reasons and dismissed the same.

3. Learned Counsel on behalf of the petitioner submitted before this Court interalia that the learned Trial Court misread and misunderstood the case made out in the application for condonation of delay and was wrong in holding that there is no sufficient cause for condonation of the delay. It is further submitted by the learned Counsel that there is sufficient reason to allow the application for condonation of delay and the Court must adopt a liberal approach but in not doing so the Trial Court made error of law in rejecting the application for condonation of delay.

4. Learned Counsel appearing on behalf of the opposite parties (herein) at the very outset raised the point that whether the order of rejecting an application for condonation of delay amounts to the rejection of the main proceeding as well. It is submitted by the learned Counsel that the aforesaid point has been settled by the Hon’ble Division Bench of this Court in Md. Ali Sardar and Others vs. Hossain Ali Monda, AIR 2012 Calcutta 171 after taking into consideration the decision rendered by the Hon’ble Apex Court in case of Shyam Sunder Sarma vs. Pannalal Jaiswal and Others, AIR 2005 SC 226. So, it is submitted by the learned Counsel that in view of observations of the Division Bench of this Court referred above that in case of dismissing the application under Section 5 of the Limitation Act filed with the petition under Order 9 Rule 13 of CPC is an appealable order and the revisional proceeding under any provision of law does not lie in view of ratio laid down in case of Md. Ali Sardar And Ors.

5. For the sake of immediate reference, Order XLIII Rule 1(d) of CPC is extracted as under: “Order XLIII Rule 1. Appeal from orders:

“An appeal shall lie from the following orders under the provisions of section 104, namely:

(a) xxx xxx xxx

(c) xxx xxx xxx

(d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex-parte.”

6. I have considered the submission advanced by both the parties. Perused the impugned order as well as the decisions cited on behalf of the opposite parties.

7. It is profitable to quote the observations of this Hon’ble Court in case of Md. Ali Sardar (supra) which entails at paragraph no. 19:

“While thinking this issue in case of reverse situation namely when application for condonation of delay is allowed obviously it cannot be an appealable one as no decision is rendered either way on decree either in case of appeal or in case of proceeding under Order IX Rule 13 as doctrine of deemed finality does not apply. It