Sunder Singh vs Shri Darshan Lal on 25 January, 2010
5- A perusal of the application u/Order IX rule 13 CPC would
show that the respondent has in detail mentioned the facts as to
how he came to know of the passing of the ex parte decree and
what were the causes for his absence and absence of his counsel.
The averments made in the application u/o.IX rule 13 CPC has
been made a part of the application u/section 5 of the Limitation Act,
moved by the respondent. The respondent had also briefly stated
the reasons as to how the respondent was ordered to be proceeded
ex parte and ex parte decree was passed. It is very well settled law
that it is not necessary to file a separate application for condonation
of delay under Section 5 of the Limitation Act (See Universal
Builders and Contractors Vs. Sheila Singh Uppal and others, 154
(2008) DLT 69); M.Narsimha Reddy and others vs. Begari Samuel,
::4 : (RCT-Appeal No.63/09)
2003 AIHC 2457 and Devinder Pal Sehgal and another Vs. M/s
Partap Steel Rolling Mills Pvt. Ltd. & others, JT 2001 (10) SC 463.
6- The averments made in the application u/order IX rule 13
CPC read with Section 144 and 151 CPC itself mentions the
reasons as to how the application was moved on 13/4/2009. The
formal application u/section 5 of the Limitation Act was also moved
by the respondent on the same facts. The question whether there
was sufficient cause for setting aside ex parte decree dated
20/11/2008 and whether there was sufficient cause for condonation
of delay are in fact inter-mixed which according to the learned Addl.
Rent Controller, could not be decided without affording the parties
an opportunity to lead evidence. Therefore, it cannot be said by any
stretch of imagination that learned Addl. Rent Controller ought to
have decided the application u/section 5 of the Limitation Act first, or
that an application u/Order IX rule 13 CPC could not be fixed for
evidence without first deciding the application u/section 5 of the
Limitation Act.