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ALLAHABAD HIGH COURT
Attau Rahman Masoodi, J.
Lachhi Ram —Petitioner
versus
Sant Ram Mawai & Ors. —Respondents
Writ - C No.54976 of 2014
Decided on 27.10.2014
For the Petitioner:Mr.Dhirendra Kumar Dwivedi & Mr.Manish Goyal, Advocates
For the Respondent:Mr.V.K.Agarwal, Advocate
IMPORTANT POINT
When the conduct of a party is unlike and innocent litigant, his case to be considered carefully and is not entitled to relief as a matter of right.
Headnote:Civil Procedure Code, 1908 Order 9 Rule 13 read with limitation Act 1963 Section 5 – Application for setting aside ex parte order – Condonation of delay in filing application – Contention of ailment of the defendant supported by medical certificate – Defendant giving appearing regularly in criminal proceedings – Since liberal approach is to be given for condonation of delay, the order of the Court rejecting the application required re-look – The matter remanded for fresh decision. (Para 4 to 9)
Facts of the Case
The suit was proceeded ex parte due to non appearance of the defendant. Application under Order 9 Rule 13 filed along with application under Section 5 Limitation Act for condoning delay in filing the application, alleging that he developed pain in the back bone and head to undergo medical treatment for six months. The trial Court allowed the application for condonation of delay on payment of cost of Rs. 500/-. In revision, the order of the trial court upheld. Against the said order writ petition was filed.
Findings of the Court
Though liberal approach is to be taken for considering application for condonation of delay but in the instant case conduct of the respondent was unlike and innocent person as he has been appearing in the criminal court regularly. Re-look into the order was necessary. The impugned order set aside and the case sent back for fresh decision.
Result: Case remanded.
Attau Rahman Masoodi, J.—Heard learned counsel for the petitioner and Shri Anshul Kumar Singhal learned counsel appearing for respondent no.1. A suit for specific performance filed by the petitioner was registered as Civil Suit No.259 of 2004. The respondents/defendants herein participated in the suit proceedings by filing written statements. Respondent no.1 filed separate written statement whereas respondents 2 to 6 filed a common written statement. As many as four issues were framed by the trial Court.
2. From the perusal of record, it appears that the absence of respondents in the suit proceedings was noticed and recorded with effect form 31.8.2010. On account of constant absence of defendants the suit proceedings were ordered to proceed ex-parte against them by order dated 28.3.2011. An ex-parte decree was passed on 20.5.2011 against all the respondents. An application under Order 9 Rule 13 CPC along with an application under Section 5 of the Limitation Act was filed by respondent no.1 alone praying for condonation of delay coupled with a prayer for setting aside ex-parte decree. In paragraph 4 of the application for condonation of delay, the premise set out for delay condonation is to the effect that respondent no.1 (Sant Ram Mawai) all of a sudden developed some pain in his back bone and resultantly had to undergo medical treatment for nearly six months as per medical advice. It is further pointed out that the said respondent could not perform pairvi of the suit proceedings however nothing is mentioned about other defendants i.e. respondents 2 to 6. The other defendants in the suit i.e. respondents 2 to 6 have not filed any such application for setting aside ex-parte decree.
3. The application filed by respondent no.1 (Sant Ram Mawai) was contested by the petitioner before the trial Court by filing objections. The petitioner in the objections filed before the trial Court has specifically stated that the respondent no.1 (Sant Ram Mawai) was not appearing before the trial Court since the month of August 2010 and in absence of any justification on the part of respondent not to appear, the suit proceeded ex-parte. Notwithstanding the objection filed by the petitioner, the trial Court allowed the application for condonation of delay on payment of a cost of Rs.500/- and the suit proceedings were restored in its entirety. The petitioner feeling aggrieved against the order passed by the trial Court on 22.7.2014, filed a revision before the revisional Court under Section 115 of the Code of Civil Procedure. The revisional Court having regard to the reasons recorded by the trial Court found that the trial Court had exercised the discretion which did not call for any interference, hence, the order passed by the trial Court was upheld. The revisional Court while justifying the order passed by the trial Court has also made a mention about the medical certificate sought to be placed reliance upon by the respondent no.1 (Sant Ram Mawai).
4. The petitioner feeling aggrieved against the orders passed by the trial Court as well as by the revisional Court has filed this writ petition bringing on record some relevant material. Two relevant considerations which go to the root of discretionary exercise of power by the trial Court as against allowing the delay condonation application filed along with the application under Order 9 Rule 13 CPC i.e. the medical certificate relied upon by the respondent no.1 (Sant Ram Mawai) which is said to be a forged document; and secondly regular appearances of Sant Ram Mawai in criminal proceedings which were simultaneously going on during the disputed point of time, were not filed before the trial Court. The medical certificate said to be forged was noticed by the revisional Court but was not filed before the trial Court, therefore, objections to the delay condonation application could not be filed by the petitioner in the trial Court on the basis of above material.
5. As far as the appearance of responde
