A court must condone delay under Section 5 of the Limitation Act before considering applications under Order IX Rule 9 CPC to ensure jurisdictional compliance.

ORDER

1. This revision petition is directed against the order dated 19.2.2019 passed by Additional District Judge No.1, Chittorgarh, whereby, the application filed by respondent under Order IX Rule 9 CPC was allowed.

2. The principal submission made by learned counsel for the petitioner is that the application Order IX Rule 9 CPC was barred by 65 days, for which, though an application under Section 5 of the Limitation Act was filed by the respondents, the trial court without deciding the application under Section 5 of the Limitation Act and condoning the delay, went on to decide the main application under Order IX Rule 9 CPC and, therefore, the passing of the order by the trial court without condoning the delay, is ex-facie without jurisdiction, the same deserves to be set aside and the application deserves to be dismissed.

3. Further submissions have been made that the application under Section 5 of the Limitation Act was filed alongwith application under Order IX Rule 9 CPC does not disclose any sufficient cause for the delay and, therefore, the application was liable to be dismissed.

4. Learned counsel for the respondents supported the order impugned. It was submitted that the respondents had filed the application under Section 5 of the Limitation Act alongwith application Order IX Rule 9 CPC, the trial court though did not expressly decide the application, the very fact that the application under Order IX Rule 9 CPC has been accepted, the same would by itself means that the delay has been condoned and, therefore, no interference is required.

5. Further submissions were made that sufficient cause was indicated in the application under Section 5 of the Limitation Act and, therefore, no case for interference in the revision petition is made out.

6. I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

7. From the perusal of the order dated 19.2.2019, it is apparent that the trial court has decided the application under Order IX Rule 9 CPC without deciding the application under Section 5 of the Limitation Act. It is not the case of the respondents that the said application was separately decided. The condonation of delay in filing the application, which is barred by limitation, is pre-requisite for the court to decide the same on merit and in those circumstances, the decision of the application under Order IX Rule 9 CPC without deciding the application under Section 5 of the Limitation Act, cannot be sustained.

8. The submissions made by learned counsel for the respondents that it would be assumed that the delay has been condoned by the court, cannot be countenanced as the passing of the order on the application and/or in any case, consideration of the facts as indicated therein, needs determination by the court, even if it is expressly not indicated in the application that delay in filing the application has been condoned.

9. A look at the application filed by the respondents indicates that certain reasons have been indicated for condonation of delay in filing the application, which have been responded to by the petitioner herein, which reply apparently is based on conjunctures.

10. In view of the above, the revision petition filed by the petitioner is allowed. The order dated 19.2.2019 passed by Addl. District Judge No.1, Chittorgarh, is set aside. The matter is remanded back to the trial court to decide the application filed by respondent under Section 5 of the Limitation Act and thereafter redetermine the application filed under Order IX Rule 9 CPC.

11. Looking to the fact that the suit was filed way back in the year 2014, the same was dismissed in default in the year 2016, restored in the year 2019 and proceedings remain stayed for over two years in the present revision petition, the trial court is directed to decide the applications with utmost expedition and in any case not later than 31st May, 2021. The parties shall appear before the trial court on 9.4.2021.