Dhanna Lal vs Smt. Ram Pyari

Ms. Bela M. Trivedi, J.—The present appeal has been filed by the appellants-applicants-defendants under Order 43, Rule 1 CPC challenging the order dated 21.02.2015 passed by learned Additional District Judge No.2, Ajmer (hereinafter referred as "trial court") in Civil Misc. Case No.105/2014 filed in the Civil Suit No.49/2012 (95/2012), whereby the trial court has rejected the application of the applicants-appellants, filed under Order 9, Rule 13 of CPC on the ground of being barred by law of Limitation.

In the instant case, it appears that the appellants had earlier filed S.B. Civil First Appeal being No.118/2013, challenging the judgment and decree dated 18.07.2012 passed by learned trial court ex-parte, whereby the sale deed dated 08.09.2011 executed in favour of the appellants defendants was set aside. The said first appeal was permitted to be withdrawn with liberty to the appellants-applicants to file an application under Order 9, Rule 13 of CPC, vide order dated 10.10.2014. The appellants-applicants thereafter filed application under Order 9, Rule 13 CPC for setting aside the ex-parte decree in the suit, which has been dismissed by the trial court vide impugned order dated 21.02.2015 on the ground that being barred by limitation of law.

It is sought to be submitted by the learned counsel for the appellants-applicants that the impugned order dated 21.02.2015 passed by the trial court is erroneous, inasmuch as the trial court has wrongly placed reliance on the decision of the Supreme Court which had no application to the facts of the present case. He also submitted that the trial court has failed to appreciate that the application was filed by the appellants as per the liberty granted by this court in the first appeal, and therefore the time consumed in the first appeal was required to be deducted from the total number of days of delay. According to him, the appellants who were the defendants in the suit were not duly served in the suit and hence the delay had occurred in challenging the ex parte decree passed in the suit.

However, the learned counsel Mr. Amit Jindal, for the respondent has submitted that appellants-applicants have failed to point out as to on which date they came to know about the ex-parte decree passed in the suit. According to him even otherwise on merits the appellants have no case, and therefore this court should not interfere with the impugned order passed by the trial court.

Having regard to the submissions made by learned counsels for the parties and to the documents on record, more particularly the impugned order passed by the trial court, it appears that the trial court has dismissed the application filed by the appellant-applicants under Order 9, Rule 13 CPC on the ground that there was delay of one year and seven months in filing the said application. However, the trial court has failed to consider that according to the appellants-applicants, they came to know about the ex. parte decree dated 18.07.2012 on 07.02.2013, and thereafter they had filed S.B. Civil First Appeal No.118/2013 on 26.05.2013. The said first appeal was permitted to be withdrawn vide the order dated 10.10.2014 with liberty to file application under Order 9, Rule 13 CPC before the trial court. The appellants thereafter had filed the application under Order 9, Rule 13 CPC on 05.12.2014. Thus, though there is some delay occurred in filing the application under Order 9, Rule 13 CPC, the appellants-applicants have tried to explain the said delay.

It is true that the appellants have not mentioned in the application as to when they came to know about the ex-parte decree passed in the suit, however, it will be a matter of evidence that may be led by the applicants in the application under Order 9, Rule 13 CPC, as to whether the applicants were duly served in the suit or not and as to when they came to know about the ex-parte decree. Hence, having regard to the facts and circumstances of the case, this court is of the opinion that the learned trial court was required to condone the delay in the interest of justice and decide the application under Order 9, Rule 13 CPC on merits.

In view of the above, the impugned order dated 21.02.2015 is set aside. The delay occurred in filing the application under Order 9, Rule 13 CPC filed by the appellants-applicants before the trial court is condoned in the interest of justice. The trial court is directed to decide the application under Order 9, Rule 13 CPC on merits as expeditiously as possible and preferably within six months from the date of receipt of this order. The appeal stands allowed accordingly. Let both the parties remain present before the trial court on 04.11.2015.