2025:UHC:8027 HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition Misc. Single No. 2043 of 2014 10 September, 2025 Chandrapal --Petitioner Versus Inderpal --Respondent ---------------------------------------------------------------------- Presence:- Mr. S.K. Shandilya, learned counsel for the petitioner. Mr. Pradeep Kumar Chauhan, learned counsel for the respondent. Hon’ble Pankaj Purohit, J. (Oral) By means of the present writ petition filed under Article 227 of the Constitution of India, petitioner has challenged the impugned judgment and order dated 06.12.2013 passed by learned Civil Judge (Sr. Div.), Haridwar, in Misc. Case No.57 of 2013 Chandrapal Vs. Inderpal, whereby, the application under Section 5 of the Limitation Act filed by the petitioner has been rejected and further prayed that the aforesaid application for condonation of delay may be allowed, as well as the judgment and order dated 08.08.2014 passed by the learned Second Additional District Judge, Haridwar in Civil Revision No.172 of 2013 Chandrapal Vs. Inderpal, whereby, the said revision was dismissed affirming the judgment and order dated 06.12.2013. 2. The brief facts of the case are that the petitioner and the respondent are real brothers; the respondent filed a Civil Suit in the Court of learned Civil Judge (Sr. Div.), Haridwar, bearing Original Suit No.48 of 2008 Inderpal Vs. Chandrapal, for partition of the property claiming half of the share of property constructed 6 room at the land measuring 15 Biswa, situated in Village Salempur Mahdood, Pargana, 1 2025:UHC:8027 Jwalapur, Tehsil and District Haridwar. Learned Trial Court had decreed the suit the ex-parte vide judgment and decree dated 02.02.2013. After having the aforesaid ex-parte decree, respondent moved an application on 22.07.2013 before the learned Trial Court for execution of the judgment and decree and the learned Trial Court issued summon and notice to the petitioner. After receiving the notice, petitioner filed an application under Order 9 Rule 13 and Section 151 CPC along with delay condonation application under Section 5 of the Limitation Act. In the said application, petitioner mentioned the reason of delay his illness and prayed to condone the delay in filing the application and to set aside the ex-parte decree dated 02.02.2013 and to restore the Original Suit to its original number. But the said application under Section 5 of the Limitation Act filed by the petitioner has been rejected vide judgment and order dated 06.12.2013. Thereafter, petitioner filed a Civil Revision No.172 of 2013 Chandrapal Vs. Inderpal, before the learned Second Additional District Judge, Haridwar, which was also dismissed. Thus, the petitioner is before this Court. 3. Learned counsel for the petitioner submits that the learned Trial Court did not apply its judicial mind and dismissed the petitioner’s application on the ground of absence of satisfactory reason in the delay condonation application. He further submits that the petitioner nowhere stated in his application that he received the information of ex-parte order dated 02.02.2013, he only received the information of execution after receiving the notice of execution, but the learned Trial Court without carefully perusal of the application dismissed the application. 2 2025:UHC:8027 4. It is contended by learned counsel for the petitioner that the reason for delay in filing the application under Order 9 Rule 13 and Section 151 CPC was properly explained in the application and the application under Section 5 of the Limitation Act, but the same was not considered by both the Courts below. It is further contended by him that the findings of the learned Trial Court in the impugned order is against the documents on record and itself shows that impugned orders have been passed in a routine manner without careful perusal of the records. 5. Learned counsel for the respondent on the basis of counter affidavit submits that the petitioner firstly appeared in the Suit on 15.04.2008 and remained absent thereafter, therefore, the order to proceed ex-parte was passed on 31.05.2008, and thereafter, with inordinate delay moved an application under Order 9 Rule 7 CPC for setting aside the order dated 31.05.2008 and thereafter again remained absent and filed an adjournment on 27.07.2009 and just because of absence of petitioner, learned Trial Court dismissed the application on 01.02.2010 Thereafter, once again on 21.09.2010, petitioner moved an application under Order 9 Rule 7 CPC on 21.09.2010 which was allowed on a cost of Rs.500/-, however, the petitioner neither paid the cost not appeared before the learned Trial Court, thus the order was passed to proceed ex-parte on 29.03.2012 and the suit was finally decided on 02.02.2013. Learned counsel for the respondent further submits that there is no illegality in the impugned orders passed by the learned Courts below. 6. After arguing a while, learned counsel for the petitioner made an innocuous prayer that the ends of 3 2025:UHC:8027 justice would be met if the application filed by the petitioner under Section 5 of the Limitation Act is allowed and the learned Trial Court is directed to hear the Misc. Case No.57 of 2013 Chandrapal Vs. Inderpal, on merits. 7. Having heard the learned counsel for the parties and after gone through the entire material available on record, this Court find substance in this submission made by learned counsel for the petitioner. The Court is also of the view to let the matter be decided between the parties on merits to settle the dispute. 8. Accordingly, the present writ petition is allowed. The application 4Ka filed under Section 5 of the Limitation Act is hereby allowed. Learned Trial Court is directed to hear the Misc. Case No.57 of 2013 Chandrapal Vs. Inderpal, on merits. 9. Pending application(s), if any, stands disposed of. (Pankaj Purohit, J.) 10.09.2025 PN 4