Courts can consider merits alongside delay in restoration petitions under CPC to promote justice over technicalities.

ORAL ORDER

This petition by the respondent No.1 in Misc.No.1142/2023 is directed against the impugned order dated 01.03.2025 passed by the VIII Additional City Civil and Sessions Judge, Bengaluru, whereby the memo filed by the petitioner for a direction to the trial Court to conduct enquiry on the delay application before proceeding to conduct enquiry on the merits of the miscellaneous petition was rejected by the trial Court.

2. Heard learned counsel for the petitioner and learned counsel for the respondent No.1 and perused the material on record.

3. A perusal of the material law on record will indicate that the petitioner and respondent No.3 herein instituted a suit in O.S.No.528/2017 against the respondent Nos.1 and 2 for declaration, injunction and possession in relation to the suit schedule immovable property. In the said suit, the respondent Nos.1 and 2 - defendants were placed ex-parte and the suit culminated in a judgment and decree dated 01.02.2020 decreeing the suit in favour of the plaintiffs against the defendants and the plaintiffs took possession of the suit schedule property from the defendants in execution proceedings in which also the defendants were placed ex-parte. Subsequently, the respondent Nos.1 and 2 were the defendants in the aforesaid O.S.No.528/2017 instituted the instant Miscellaneous No.1142/2023 under Order IX Rule 13 CPC to set aside the ex-parte judgment and decree. In the said miscellaneous proceedings, the respondent Nos.1 and 2 filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the miscellaneous petition. The said miscellaneous petition as well as the application for condonation of delay have been opposed by the plaintiffs, who are the respondents in the miscellaneous petition.

4. During the pendency of the said miscellaneous petition, the petitioner filed a memo to the effect that since there was delay in filing the miscellaneous petition, enquiry has to be conducted on the application for condonation of delay before proceeding to consider the main miscellaneous petition on merits. The said memo filed by the petitioners having been opposed by the respondent Nos.1 and 2, the trial court proceeded to pass the impugned order disposing of the memo by coming to the conclusion that the application for condonation of delay as well as the main miscellaneous petition would be heard together by holding as under:

ORDER ON MEMO

The respondent No.1 has filed a memo dated 14.11.2024 and sought to recall the order for considering the main evidence without leading evidence on delay application filed by the petitioners. The petitioners have filed objections to the memo contending that the affidavit pertaining to the evidence deals with the reason for delay and also on the merits of the case and therefore, only to protract the proceedings, the present memo is filed which is liable to be dismissed.

2. Heard the arguments.

3. The point that arise for consideration is:-

Whether in the present case, the Court can adjudicate both the question of delay in filing the application as well as the main petition filed under Order IX , Rule 13 of the Code of Civil Procedure , 1908 together?

4. The answer to the above point is in the affirmative for the following:-

REASONS

5. The main petition is filed by the petitioners under Order IX , Rule 13 of the Code of Civil Procedure , 1908 for restoration of the ex-parte judgment and decree. The ex- parte judgment came to be passed on 1.2.2020. The main petition is filed for restoration on 25.9.2023. While filing the main petition, interlocutory application No.I is filed for condonation of three years and seven months of delay. After appearance of the respondents, the petitioners have now given the evidence on main petition as well as the ground of d