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DEVAN M. DESAI
Rathva Meenaben Pahadsinh – Appellant
Versus
Solanki Karansinh Gemalsinh – Respondent
JUDGMENT (ORAL)
The present petition is filed under Articles 226 and 227 of the Constitution of India, 1950 by the petitioners-original plaintiffs-appellants. The petitioners have prayed for following prayers:—
“A. This Hon’ble High Court may be pleased to admit and allow the present petition;
B. This Hon’ble High Court may be pleased to quash and set aside the order dated 30/06/2022 in Misc. Civil Appeal no. 05 of 2021, passed by the Learned Additional District Judge, Chhotaudepur at Bodeli (At Annexure-A), and consequentially be pleased to set aside the order dated 22/09/2021 in Civil Misc. Application no. 16 of 2019, passed by the Learned Principal Senior Civil Judge, Bodeli (At Annexure-D), by allowing the prayers sought therein to condone the delay in preferring the application for setting aside the order of dismissal dated 14/11/2017 in Regular Civil Suit no. 227 of 2016 (At Annexure-C), in the Interest of justice;
C. This Hon’ble High Court may be pleased to pass such and further orders as the nature and circumstances of the case may require, in the interest of justice.”
2. Heard learned advocate Mr. A.V Nair appearing for the petitioners and learned advocate Mr. Dhruv
Order passed under Rule 13 of Order 9 of CPC rejecting application for an order to set aside a decree passed ex parte, appeal would lie under Order XLIII Rule 1 (d) of CPC.
The court upheld the condonation of delay in filing an appeal, emphasizing a liberal approach in light of the COVID-19 pandemic and prior court directions.
The court emphasized the need for substantial justice, the wide discretionary powers under Article 227 of the Constitution of India, and the balance of convenience between the parties.
The court reaffirmed that substituted service under the Code of Civil Procedure does not constitute adequate service, necessitating substantiation of claims in applications for condonation of delay.
Courts can consider merits alongside delay in restoration petitions under CPC to promote justice over technicalities.
An application under Order IX Rule 13 CPC requires compelling reasons for absence; mere negligence does not justify setting aside an ex-parte decree.
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