IMPORTANT POINT
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.

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 K. Dave for the respondents.

3. Learned advocate for the petitioners-plaintiff submitted that the suit bearing Regular Civil Suit No. 227 of 2016, originally, was filed before learned Pavi, Jetpur Court, thereafter the Suit proceedings came to be transferred to Principal Senior Civil Judge, Vadodara and from there was transferred to learned Civil Judge, Baroda. In the year 2016, the suit proceedings were transferred from Civil Judge Baroda to learned Civil Judge at Bodeli. It is submitted that the petitioners did not remain present resultantly, on 14.11.2017, the Suit came to be dismissed under the provisions of Order IX Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). The petitioner No.1 got to know from the correspondence ensued with the Police Commissioner, Chhota Udepur on 08.08.2019, that the suit has been dismissed for default on 14.11.2017. Thereafter, an application being Civil Misc. Application No. 16 of 2019, came to be filed by the plaintiff under Order IX Rule 9 of the Code for setting aside the dismissal of the Suit. The said application came to be dismissed on 22.09.2021 against which the petitioners filed Civil Misc. Appeal No. 5 of 2021 with an application for condonation of delay. The application for condonation of delay came to be rejected by the learned trial Court and the said order came to be assailed by the petitioners before learned District Court with an application for condonation of delay. The learned District Court while deciding the application under Section 5 of the Limitation Act, 1963 observed that the Civil Misc. Appeal is not maintainable and the same came to be dismissed against which the present petitioners are before this Court.

4. Learned advocate for the petitioner further submitted that the challenge in the Misc. Civil Appeal was against the rejection of an application for condonation of delay for setting aside the order of dismissal of the suit for default. The order passed by the learned Trial Court is under Order IX Rule 9 of the Code. Learned advocate for the appellant has relied upon Order XLIII Rule 1(c) of the Code. It is submitted that an appeal shall lie from an order passed under Rule 9 of Order IX rejecting an application for an order to set aside the dismissal of the suit. It is submitted that while rejecting the application for condonation of delay by the learned Trial Court, the application under Order IX Rule 9 is dismissed and therefore, the challenge by way of a Civil Misc. Appeal is maintainable. The application under Section 5 of the Limitation Act is not a stand alone application as the main application was under Order IX Rule 9 of the Code. In support of his contention learned advocate for the petitioner has relied upon a decision in the case of (i) Jaswan