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2011 Supreme(UK) 239
2011(1) U.D., 486
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Hon’ble B.S. Verma, J.
Dr. Pradip Kumar Ghosh – Appellants.
Versus
Barun Kumar Banerjee – Respondent.
A.O. No. 398 of 2008
Decided on : 22-04-2011
Mr. Siddharth Shah, Advocate for the appellants.
Mr. B.M. Pingal and Mr. Narendra Bali, Advocates for the respondents.
The discretionary power of the court to condone delay and the need for a liberal approach in such matters, as established in relevant case laws, influenced the court's decision.
Headnote:
Delay Condonation - Civil Procedure Code - U/O 9 Rule 13 - Allahabad Rent Cases, 1998 (2) page 664, Apangshu Mohan Lodh and others Vs. State of Tripura and others [(2004)1 Supreme Court Cases, page 119], V.K. Industries and others Vs. M.P. Electricity Board, Rampur, Jabalpur, (2002)3 Supreme Court Cases 159
Fact of the Case:
The appellant filed an application U/O 9 Rule 13 C.P.C. to set aside an exparte decree, which was rejected due to a 19-day delay in filing. The appellant's counsel argued for condonation of the delay, citing medical reasons for non-appearance and reliance on relevant case law.
Finding of the Court:
The court found that the delay was properly explained and should be condoned, following the principles established in relevant case laws. The court set aside the exparte decree and imposed certain conditions, including payment of costs and a deposit to protect the respondent's interest during the suit.
Issues: The main issue was the condonation of the delay in filing the application U/O 9 Rule 13 C.P.C. and the setting aside of the exparte decree.
Ratio Decidendi: The court relied on the discretionary power of the court to condone the delay and the need for a liberal approach, as established in relevant case laws, to reach its decision.
Final Decision: The appeal was allowed, the impugned order rejecting the application was set aside, the exparte decree was set aside, and the case was restored with certain conditions imposed on the appellant.
Hon’ble B.S. Verma, J.
1. This appeal has been preferred against the judgment and order dated 22-8-2008, passed by Civil Judge (Senior Division), Haridwar, in Misc. Case No. 67 of 2008, Dr. Pradeep Kumar Ghosh and another Vs. Barun Kumar Banerjee, whereby the application of the petitioner filed U/O 9 Rule 13 C.P.C. to set aside the expartee decree, was rejected.
2. The learned counsel for the appellant has vehemently urged that the delay in filing the application U/O 9 Rule 13 C.P.C. was 19 days, and the learned trial court should have condoned the delay.
3. Learned counsel for the appellant has also submitted that the respondent can be compensated by award of cost while condoning the delay in filing the application U/O 9 Rule 13 C.P.C. He has placed reliance on the judgment of the Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy (Allahabad Rent Cases, 1998 (2) page 664).
4. It is well settled that the power to condone the delay is the discrtionary power of the court and the courts should be liberal in condoning the delay. I am fortified in my view by the Apex Court judgment in the case of Apangshu Mohan Lodh and others Vs. State of Tripura and others [(2004)1 Supreme Court Cases, page 119]. The suit was filed for recovery of the money. The appeal has been filed on the ground that the counsel for the appellant could not appear before the trial court on 6-2-2008, the date fixed in the suit and the suit proceeded exparte and final order was passed on 31.3.2008.
5. The suit was being contested by the appellant through the attorney-holder. Due to the illness he could not appear before the court and the counsel for the appellant had not informed him about the date fixed in the case. The appellant has also filed the medical certificate along with the application for the period 20-3-2008 to 13-5-2008. Objection was filed by the respondent against the application. The trial court has held that the delay was not properly explained.
6. The learned counsel for the respondent has firstly urged that the medical certificate which was annexed along with the application only speaks about the treatment and no opinion was given by the doctor for bed rest, therefore, the appellant was negligent to pursue his case and the application could not be allowed. Secondly it is contended that it is a money decree, and if the court comes to the conclusion that the exparte order is liable to be set aside, in that event direction may be given to the appellant to deposit the decretal amount. In support of his contention learned counsel has cited the case of V.K. Industries and others Vs. M.P. Electricity Board, Rampur, Jabalpur, reported in (2002)3 Supreme Court Cases 159.
7. I have gone through the above cited case. In para-5 it has been observed-
“ Ordinarily, a money decree is not stayed unconditionally and the judgment-debtor would be put on terms. Even so, such conditions must be reasonable having regard to all relevant factors. Although ex part decree was passed against the appellants, once it is set aside on the ground of non-service of suit summons the money decree did not exist for execution. It is no doubt true that in restoring a case the court may impose conditions to deposit costs or the decretal amount or some portion thereof or to ask the defendant to give security but such conditions should be reasonable and not harsly excessive. In the impugned order the appellants are put on terms to deposit a sum of Rs. 2,00,000/- and to furnish a bank guarantee for the remaining suit claim within a period of two months. In our view these terms are onerous, harsh and unreasonable in the facts and circumstances of the case and that too even before the trial of the suit on merits.”
8. Considering this fact that the delay in filing the application is of only 19 days and is not intentional, therefore, in my view the delay has been properly explained. Further, in view of judgment rendered by Hon’ble Apex Court in
