Bishni Devi vs Smt. Jaintuli Devi & others

MANOJ K. TIWARI, J. (ORAL)

Petitioner is aggrieved by order dated 24.09.2011 passed by learned Civil Judge (S.D.), Almora in Miscellaneous Civil Case No. 2 of 2011, whereby

her application under Section 5 of the Limitation Act for condoning the delay in filing the application for setting aside ex-parte decree has been

rejected.

It transpires that respondent No. 1 â€" Smt. Jaintuli Devi filed a suit seeking declaration that she is entitled to family pension of her huband i.e. Late

Sri Mohan Singh Bisht and also for deletion the name of Smt. Bishni Devi (petitioner herein) from his pension papers. The said suit was registered as

Civil Suit No.16 of 1999 and was decreed ex-parte against the petitioner vide judgment and order dated 16.03.2002. After delay of about nine years,

petitioner filed an application for setting aside ex-parte decree, under Order 9 Rule 13 of C.P.C. Along with said application, petitioner also filed an

application under Section 5 of the Limitation Act for condonation of delay in filing the application under Order 9 Rule 13 of C.P.C. Learned trial court

rejected petitioner’s delay condonation application, under Section 5 of the Limitation Act, vide order dated 24.09.2011, which has been challenged

in the present writ petition.

The explanation given by the petitioner for delay in filing the application under Order 9 Rule 13 of C.P.C. was that the counsel engaged by her for

defending the suit, namely, Sri Kirola, died, consequently, the suit was decided ex-parte against her. She further stated that her counsel asked her not

to come to court on each and every date and further that the suit is not likely to be decided in near future.

It is settled position in law that the Rules of procedure are handmaid of justice, which cannot be allowed to scuttle the course of justice. Endeavour

of the court should be to do complete and substantial justice between the parties. Hon’ble Supreme Court has repeatedly held that while

considering application under Section 5 of the Limitation Act, a liberal and justice oriented approach should be adopted. Due to death of her counsel,

petitioner was not aware about the ex-parte decree passed by learned trial court. After coming to know about the same, she filed the application for

setting aside the ex-parte decree along with delay condonation application.

Hon’ble Supreme Court in the case of K. Subbarayudu & others Vs The Special Deputy Collector (LAO) reported in (2017) 12 SCC 840 has

held as under:-

“The term “sufficient cause†is to receive liberal construction so as to advance substantial justice, when no negligence, inaction or want of

bona fides is attributable to the appellants, the Court should adopt a justice-oriented approach in condoning the delay. In State of Nagaland v. Lipok

AO and Others (2005) 3 SCC 752, it was held as under:-

“Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position

of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause

can be recorded in the peculiar circumstances of the case as sufficient.â€​â€​

In such view of the matter, writ petition is allowed. Impugned order dated 24.09.2011 passed by learned Civil Judge (S.D.), Almora is set aside.

Learned court below shall reconsider petitioner’s applications under Section 5 of the Limitation Act and Order 9 Rule 13 of C.P.C., in accordance

with law, within six weeks from the date of production of certified copy of this order.