Shanti Devi vs Haneef

Rakesh Tiwari, J.—Heard Sri B.D. Mandhyan, senior counsel assisted by Sri Satish Mandhayan, counsel for the petitioner, Sri D.K.Tripathi appearing for caveator respondent and perused the record.

S.C.C. Suit no. 47 of 1992 was filed by the landlord respondent in the court of Judge, Small Causes, Mathura for ejectment of the petitioner and for recovery of rent for three years @ Rs. 200/ per month. As the petitioner tenant did not appear for about seven years, the trial court passed an order dated 21.7.1999 directing to proceed ex parte. The petitioner filed an application (58 Ga) for recalling the order dated 21.7.1999, which was allowed vide order dated 18.1.2000 and thereafter he again remained absent. The suit in the circumstances was decreed ex parte by judgment and order dated 19.3.2008.

An application under Order 9 Rule 13, C.P.C. alongwith an application under section 5 of the Limitation Act was filed by the petitioner on 2.12.2009 for recalling the order dated 19.3.2008. The trial court found that the cause shown for condoning the delay was not sufficient and accordingly rejected the delay condonation application. As a consequence, the application under Order 9 Rule 13, C.P.C. was also rejected vide order dated 25.2.2010. Relevant extract of the order in this regard is thus:

Aggrieved by the order aforesad, the petitioner preferred civil revision no. 10 of 2010 against the order dated 25.2.2010 before the District Judge, Mathura. The revisional court after hearing the parties came to the conclusion that it is apparent from record that petitioner remained continuously absent since 25.11.2003 and did not attend the proceedings, with the result that suit was ex parte decreed on 19.3.2008 and that application under Order 9 Rule 13 alongwith delay condonation application was made after one year and eight months and that too on untenable grounds. The revisional court opined that in the facts and circumstances of the case, the trial court has not committed any error in rejecting the application for condonation of delay and the application under Order 9 Rule 13 and accordingly dismissed the revision with cost by judgment and order dated 13.8.2010.

Learned counsel for the petitioner has submitted that delay ought to have been condoned in the circumstances and the application for recall under Order 9, Rule 13, C.P.C. was liable to be allowed so that matter was decided on merits. No other point has been argued.

It is apparent from a perusal of Order 9 Rule 13 that the court is to be satisfied for setting aside decree exparte against the defendant that summons had not been duly served and that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.

Though a liberal view is required by the court for restoration of case under Order 9 Rule 13, yet the court must satisfy itself to the sufficiency of it. In the instant case the court below has found that explanation given in the application for recall "that the petitioner got the knowledge about the ex parte decree on 21.11.2009 and before that in December 2008 the death of the husband of the petitioner occurred and during his life time the husband Babu Lal was doing the pairvi of the case and thereafter, after his death there was no one to do the parivi in the case and the suit was transferred from one court to other on 22.3.2004, The notice ought to have been served upon the parties under Rule 89A of the General Rules (Civil) but no notice was served and the case was transferred without any notice, averments made were not sufficient" was not sufficient.

The Court arrived at a definite finding that application for recall suffered from unexplained latches. The proceedings had already been ordered to be held exparte when the case had been transferred to another court. The petitioner had been served with summons and his counsel was looking after the case. It is unbelievable that the petitioner as well as the counsel did not care to know on the subsequent date as to what orders had been passed before suit proceedings were to be held ex parte and that too for years together from 25.11.2003.

No perversity, illegality or infirmity could be shown in the findings recorded and conclusions drawn by the courts below in the orders impugned.

The writ petition has no force and is accordingly dismissed. No order as to costs.