The court ruled that an application under Order 9 Rule 7 of the CPC must be accompanied by a condonation of delay application if filed beyond the limitation period.

ORDER

This petition under Article 227 of the Constitution of India takes exception to the order passed by the learned Trial Court on 05.04.2021 whereby it allowed the application filed by the defendant/respondent under Order 9 Rule 7 readwith Section 151 of the Code of Civil Procedure (for short ‘Code’), despite it having been filed after four years that too without there being a separate application seeking condonation of delay.

2. Brief facts of the case are that Smt. Judhya Devi, predecessor-in-interest, of the plaintiffs-petitioners (hereinafter to be referred to as the petitioners) filed a suit for permanent prohibitory injunction restraining the defendant-respondent (hereinafter to be referred to as the respondent) from interfering, changing nature, raising construction, encroaching and digging the suit land comprised in Khata Khatauni No. 95min/114min, Khasra No. 130, measuring 1-7 bighas, situated at Village Jukhala, Tehsil Sadar, District Bilaspur (HP). The respondent had put in appearance and had also filed written statement. The petitioners had filed replication. Thereafter, issues were framed and the case was listed for recording evidence of the petitioners.

3. The suit was fixed for 08.06.2015 when the respondent failed to put in appearance either himself or through his counsel, therefore, he was proceeded ex parte. Statements of few witnesses of the petitioners were recorded on 09.03.2016 and rest of evidence of the petitioners was recorded on 08.09.2016. The case was thereafter listed for arguments but for a considerably long time, the suit was not decided by the learned trial Court despite the fact that the arguments were already heard.

4. The respondent thereafter filed an application dated 05.08.2019 under Order 9 Rule 7 read with Section 151 of the Code for setting aside ex parte order dated 08.06.2015 which was not accompanied by any application for condonation of delay in filing the said application beyond the period of limitation.

5. The learned trial Court vide order dated 05.04.2021 allowed the application and aggrieved thereby, the petitioners have filed the instant petition.

6. It is vehemently contended by Shri Bhupender Gupta, Senior Advocate, assisted by Shri Janesh Gupta, Advocate that the impugned order is not only bad in law but is absolutely perverse as against the settled proposition of law as no application for setting aside the ex parte order can be entertained after the expiry of the limitation period, unless the same is accompanied by a separate application for condonation of delay and that too there has to be a sufÏcient cause which prevented the party for not approaching the Court within the prescribed period of limitation.

7. On the other hand, Shri Parveen Thakur, learned counsel for the respondent would submit that the learned trial Court below has given cogent and convincing reasons for entertaining the application under Order 9 Rule 7 of the Code and thereafter allowed the application and, therefore, the impugned order warrants no interference.

8. I have heard the learned counsel for the parties and have gone through the records of the case.

9. What weighed with the learned Trial Court in allowing the application under Order 9 Rule 7 of the Code, even though, the same was apparently barred having been filed nearly four years after passing of the the ex parte order dated 08.06.2015, is contained in the following observations which read thus:-

“I have heard the contentions of both the parties and have gone through the record,which shows that after the case was listed for leading evidence on behalf of the plaintiff on 08.06.2015, th