JUDGMENT

Arun Monga, J. (Oral)

Challenge herein is to impugned order dated 17.05.2017 (Annexure P-1) whereby application filed by petitioner-plaintiffs under Section 5 of LIMITATION ACT for condonation of delay in filing first appeal against order 07.03.2015 (Annexure P-3) was dismissed being not maintainable. Further relief sought is to set aside impugned order dated 07.03.2015 (Annexure P-3) passed by learned Civil Judge (Junior Division), Rajpura whereby application (Annexure P-4) filed by respondent-defendant under Order IX Rule 13 of Code of Civil Procedure, 1908 (for short 'CPC') seeking to set aside ex parte order dated 28.09.2010 (Annexure P-14)as well as judgment/decree dated 11.11.2011 (Annexures P-15 and P-16) passed in Civil Suit No.99- T/21.12.2006/24.04.2009, was accepted and period of limitation for filing aforesaid application was also condoned.

2. None appears on behalf of petitioners. I have heard learned counsel appearing on behalf of respondent and perused the case file.

3. It is averred in the revision petition that application under Order IX Rule 13 of CPC filed by respondent-defendant is misuse of process of law since the same was based on concealment of certain material facts. Impugned order dated 07.03.2015 (Annexure P-3) has been passed without appreciating evidence on file. It is further asserted in the instant petition that petitioners had filed CR-3550-2015 against aforesaid order, which was dismissed as withdrawn vide order dated 10.09.2015 (Annexure P-22). Impugned order dated 17.05.2017(Annexure P-1) has been passed illegally while declining to condone the delay in filing appeal against order dated 07.03.2015 before learned First Appellate Court.

4. From the perusal of impugned order dated 07.03.2015 (Annexure P-3) passed by learned trial Court accepting the application under Order IX Rule 13 of CPC, it is borne out that not only specific issues were framed, but threadbare evidence was allowed to be adduced by rival sides and it is only after due appreciation of the same, aforesaid application was allowed. In other words, a separate elaborate trial was conducted before giving cogent findings qua following issues No.1 to 3 and 3A:

"1. Whether there are sufficient grounds for setting aside the ex parte judgment and decree dated 11.11.2011" OPA

2. Whether present application is not maintainable" OPR

3. Whether applicant has not come to the court of equity and has suppressed the true facts from the Court" OPR

3A. Whether the present petition is beyond the period of limitation? OPR

4. Relief."

5. After analyzing and evaluating the evidence, the learned trial court determined that the case was suddenly rescheduled from November 21, 2011 to November 11, 2011. However, the defendant and her counsel were not ever informed or served notice of the rescheduled date, which resulted in an ex parte judgment being passed. It was discovered through evidence that the defendant became aware of this only on December 27, 2011. Subsequently, an application was filed on January 10, 2012 to recall ex parte judgment and decree, which was within the time limit from the date of knowledge. The trial court thus correctly made the decision to set aside the ex parte judgment and decree, and there is no reason for this decision to be challenged.

6. Relevant extract of another impugned order dated 17.05.2017, dismissing the application for condonation of delay in filing appeal against order dated 07.03.2015 filed by plaintiff/petitioner herein, for ready reference, is reproduced herein below:

"7. The learned counsel for the applicants has argued that there are sufficient reasons to condone th