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2015 DAILYLAW 2221 (ALL)

Rajeev Kumar v. Additional District Judge

2015-08-03

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. The order impugned in this petition is an order dated 1 October 2014 whereby, the revision filed by the petitioner against the order of the trial Court dated 22 July 2013 allowing the application for condonation of delay in moving the application under Order 9, Rule 13 CPC, has been dismissed. 2. The petitioner has instituted Original Suit No. 139 of 2007. It was decreed ex parte on 7 February 2008. An application for setting aside the ex parte decree was filed by the defendant respondents on 1 August 2008. It seems that during the pendency of the said application, they also moved separate application on 30 March 2012 for condoning the delay in moving application under Order 9, Rule 13 CPC. By an order dated 22 July 2013, the trial Court allowed the application for condonation of delay on payment of a cost of Rs. 300/- to the plaintiff petitioner. The trial Court while allowing the application held that there was a delay of 4 months 23 days and in order to ensure compliance of the principles of natural justice, the delay is being condoned. 3. Aggrieved by the said order, the petitioner preferred Civil Revision No. 35 of 2013. Before the Revisional Court, it was contended that the trial Court while allowing the application under section 5 of the Limitation Act, wrongly held that there was a delay of only 4 months and 23 days in moving the delay condonation application whereas, in fact, the delay was of a much greater period, as the application was filed on 30 March 2012. The Revisional Court in the impugned judgment and order has noted that the recital in the order of the trial Court that there was delay of 4 months and 23 days in filing the restoration application, is incorrect but it was of the opinion that it would not materially affect the decision of the trial Court, which merely condones the delay in filing the application under Order 9, Rule 13 CPC. Admittedly, the application filed by the defendant respondents under Order 9, Rule 13 CPC is still pending, and is yet to be decided. 4. The only submission made by the learned counsel for the petitioner is that the defendants were duly served in the suit and the said fact was mentioned by the trial Court while decreeing the suit ex parte. 4. The only submission made by the learned counsel for the petitioner is that the defendants were duly served in the suit and the said fact was mentioned by the trial Court while decreeing the suit ex parte. It is submitted that the delay condonation application has been allowed without taking into consideration the said fact. Whether there was sufficient ground for non-appearance of the defendants on the date the suit was decreed ex parte, is yet to be decided by the trial Court, inasmuch as, the application under Order 9, Rule 13 CPC is still pending consideration. The trial Court has merely allowed the application for condonation of delay. The plaintiff petitioner has been adequately compensated by payment of cost. Further, it is noticeable that the revision preferred by the petitioner was dismissed on 1 October 2014 and since thereafter, the petitioner maintained complete silence and subjected the order to challenge after almost 10 months. 5. Looking to the entire facts of the case, this Court declines to interfere with the impugned judgment and order dated 1 October 2014, which merely dismisses the revision preferred by the petitioner against the order of the trial Court condoning the delay in filing application for setting aside the ex parte decree. 6. The petition lacks merit and is dismissed.