NAINSINGH AND ANR. vs BALBHADDAR AND ORS.

This is an application under Article 227 of the Constitution of India. The additional defendants, who are the legal representatives of the original

defendant, are the Petitioners. The suit is one for declaration, partition and for separate possession. The subject matter of the suit is stated to be a

parcel of land around 18.6 acres (7.527 hectares).

Upon receipt of summon by the father of the Appellants, he went to the Court and marked his presence in the proceedings paper. It appears that

thereafter, the defendants did not appeared and the ex-parte decree was passed. Alleging that the defendants came to know about the decree only on

01.10.1999, an application was filed invoking Order IX Rule 13 of CPC on 06.10.1999 i.e. within 30 days from the date of passing of the ex-parte

decree, as pleaded by the additional defendants. But, the first defendant having marked on the proceedings paper, he is deemed to have participated

and was aware of the suit, therefore, the trial Court took the view that the knowledge of date of the ex-parte decree is the date of decree itself and

not any later date as pleaded by the defendant. Technically that may be correct. But, the fact of the matter remains that the additional defendants had

filed the application after they lost their father. Substantial interest and valuable property is involved in the litigation.

The trial Court dismissed the application under Order IX Rule 13 of the CPC on the premise that no application under Section 5 of the Limitation

Act has been filed. If the application under Order IX Rule 13 of the CPC was belated, definitely application under Section 5 of the Limitation Act was

necessary. The appeal filed by the additional defendants was dismissed by the District Court. This is under challenge.

The application filed under Order IX Rule 13 of the CPC discloses the reasons why the defendants did not contest the suit. It discloses a bonafide

reason for the delay in applying to set aside the ex-parte decree. The reason so attributed is the delayed information regarding the passing of the

decree. Though technically, it is a situation which called for an application under Section 5 of the Limitation Act, on the whole, the learned Counsel for

the Petitioners is justified in referring the judgment passed by the Apex Court in State of M.P. & Another Vs. Pradeed Kumar & Another; 2000 SAR

(Civil) 869 and Bhagmal & Ors V. Kunwar Lal & Ors.; 2010 AIR SCW 4799, to argue for the position that a lenient view may be taken to secure the

ends of justice and to prevent miscarriage of justice because if the ex-parte decree were to be extend the appealing defendants are being deprived of

valuable right to property without an opportunity of trial.

The learned counsel appearing for the Respondents/Plaintiffs argued that the impugned orders have been passed since there is no application under

Section 5 of the Limitation Act and the appealing defendants cannot take shelter under Section 14 of the Limitation Act because of the participation of

their predecessor, the first defendant, by marking in the proceedings paper of the Court below.

Having examining the basic facts of the case and the contentions of the parties, in exercise of power under Article 227 of the Constitution of India,

it appears to be necessary that requisites order be passed to secure the ends of justice and thereby letting the parties to proceed with trial.

For the aforesaid reasons, this writ petition is ordered directing that the impugned judgment of the District Court and the order of the trial Court is

stand set aside and the application under Order IX Rule 13 is allowed, thereby setting aside the ex-parte decree, on the condition that the Appellants

pay the Plaintiffs an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) as costs payable within four weeks from today. If such amount is

deposited before the Court below as costs, the Respondents/Plaintiffs are permitted to withdraw said amount.