Madhya Pradesh High Court
Mandir Shri Ram Janki, Kasba Porsa vs Vidyaram (Dead) on 23 November, 2015
1
C.R.No. 44/2011
(Mandir Shree Ram Janki Vs. Vidhyaram (Dead) & others)
23.11.2015
Shri Vivek Jain, Advocate for applicant.
Shri D.D. Bansal, Advocate with Shri Abhishek
Bhadoriya, Advocate for the non-applicants.
With the consent of parties, the matter is heard
finally.
2. In this revision, preferred under Section 115 of the
Code of Civil Procedure, 1908, the petitioner has assailed
the validity of the order dated 14.02.2011, by which, the
Lower Appellate Court has condoned the delay in filing the
application under Order 9 Rule 13 of the Code of Civil
Procedure and has directed the trial Court to decide the
application preferred by the respondent under Order 9 Rule
13 of CPC on merits.
3. The facts giving rise to filing of this civil revision, briefly stated, are that the plaintiff filed a suit seeking the relief of declaration and cancellation of sale deed dated 04.12.1990 on or about 01.07.1992. The case was fixed for filing of written statement of defendant on 31.07.1999. Thereafter, the proceeding in the case was adjourned from time to time. Eventually, on 30.08.1999, the counsel for defendant pleaded no instructions, thereafter, the trial Court by an ex-
2 C.R.No. 44/2011parte judgment and decree dated 30.11.1999 decreed the suit filed by the plaintiff.
4. It is the case of the non-applicant that he acquired knowledge about the aforesaid ex-parte decree on 24.03.2009, when he was served with the summon of subsequent suit on 24.03.2009. Thereafter, the application under Order 9 Rule 13 of the Code of Civil Procedure alongwith an application for condonation of delay is filed on 16.04.2009. The trial Court rejected the application for condonation of delay vide order dated 04.12.2009 on the ground that the respondent has failed to make out any sufficient cause for condonation of delay in filing the application under Order 9 Rule 13 of the Code of Civil Procedure. The aforesaid order was reversed in the appeal by the Lower Appellate Court by impugned order dated 14.02.2011. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the applicant submitted that the respondent was grossly negligent in prosecuting the proceeding and the Lower Appellate Court grossly erred in holding that sufficient cause was made out for filing an application under Order 9 Rule 13 of the Code of Civil Procedure. In support of his submissions, learned counsel 3 C.R.No. 44/2011 for the petitioner has placed reliance on the decision of Supreme Court rendered in case of Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation & Another reported in 2010 (5) SCC 459 and in case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai reported in 2012 Vol 5 SCC 157.
6. On the other hand, learned counsel for the non- applicant, has supported the order and submitted that once, the discretion of condonation of delay was exercised by the trial Court, thereafter the Lower Appellate Court ought not to have interfered with the same and in any case, this Court in exercise of revisional jurisdiction should not interfere with the order of the Lower Appellate Court by which the delay in filing the application under Order 9 Rule 13 has been condoned. In support of submission made by the learned counsel for respondent, reference has been made to the decision of Supreme Court in case of N. Balakrishnan Vs. M. Krishnamurthy reported in 1998 (7) SCC 123 and in case of Smt. Chhutbai & Another Vs. Madanlal & Another reported in AIR 1989 MP 330. It is also submitted that the conduct of the plaintiff should also be seen. In this connection, reference has been made on a decision 4 C.R.No. 44/2011 rendered in case of M.K. Prasad Vs. Arumugam reported in AIR 2001 SCC 2497. It is submitted that in any case, before the decision on the application under Section 5 of the Limitation Act, the trial Court ought to have granted an opportunity to the respondent to adduce evidence.
7. I have considered the submissions made by the learned counsel for the parties and have perused the record.
8. In the case of Urmila Bai Vs. Narayan, 1980 (1) MPWN 183, a Bench of this Court has held that where the application under Section 5 of the Limitation Act is contested , there ought to be an inquiry as to whether, the non-applicant was prevented by sufficient cause for making an application under Order 9 Rule 13 of the Code of Civil Procedure. In the instant case, the trial Court without holding any inquiry rejected the application under Section 5 of the Limitation Act and held the application under Order 9 Rule 13 of the Code Of Civil Procedure as barred by limitation. The aforesaid order has been set-aside in appeal by the lower Appellate Court. Thus, the Lower Appellate Court has failed to appreciate that the application under Section 5 of the Limitation Act was rejected without holding any inquiry. The order passed by the Lower Appellate Court suffers from procedural irregularity as well as illegality. Therefore, the 5 C.R.No. 44/2011 same cannot be sustained in the eye of law. It is accordingly quashed. The trial Court is directed to hold an inquiry before deciding the application under Section 5 of the Limitation Act and thereafter shall proceed to deal with the application under Order 9 Rule 13 of the Code of Civil Procedure in accordance with law.
9. With the aforesaid directions, the civil revision stands disposed of.
Certified copy as per rules.
(Alok Aradhe)
sh/- Judge