Dwarika Prasad (D) Thr. LRs. v. Prithvi Raj Singh

(Civil Appeal No. 14830 of 2024)

Case Law Cited Rafiq v. Manshilal [1981] 3 SCR 509 : [1981] 2 SCC 788; Bhagmal and Ors. v. Kunwar Lal and Others [2010] 8 SCR 1104 : [2010] 12 SCC 159 – relied on.

*Author

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List of Acts Code of Civil Procedure, 1908; Limitation Act, 1963.

List of Keywords Condonation of delay; Restoration of ex-parte decree.

Case Arising From CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14830 of 2024 From the Judgment and Order dated 24.05.2022 of the High Court of Judicature at Allahabad in WC No. 18990 of 2004

Appearances for Parties Nikhil Jain, Ms. Divya Jain, Gagan Kumar, Ms. Maheen Khan, Advs. for the Appellant. Krishna Ballabh Thakur, Adv. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Vikram Nath, J.

1Copy pinpoint1. Leave granted.

2Copy pinpoint2. This appeal assails the final judgement and order passed by Allahabad High Court in Writ Petition No.18990/2024 on 24.05.2022 whereby the High Court dismissed the Writ Petition and upheld the order of the District Judge, Etah in Civil Revision No.53 of 2000. The District Court, Etah (“Revisional Court”) had allowed the Civil Revision filed by Respondent Prithvi Raj Singh under section 115 of Civil Procedure Code (“CPC”) against the order dated 29.04.2000 passed by Additional Civil Judge (Junior Division) Kasganj (“Trial Court”) in Civil Miscellaneous Case No.33/1994. The Trial Court thereby had allowed the restoration application under Order IX Rule 13 and section 151 of CPC filed by the Appellant Dwarika Prasad. The High Court has effectively dismissed the restoration application, confirming the ex parte decree dated 11.04.1994 passed in favor of Respondent.

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3Copy pinpoint3. The facts leading to the present appeal are stated below: 3.1. Respondent-Plaintiff Prithviraj Singh instituted a civil suit registered as O.S. No.81 of 1988 seeking declaration of a sale deed as null and void on the ground of fraud played by the Appellant-defendant. Plaintiff averred that his grandfather Shri Guljari Lal was a bhumidhar with transferable rights of agricultural plot No. 315 area 0.66 Hectare, situated at Itwarpur, Pargana- Sahawar, District Etah and also of agricultural plot No.141 area 0.34 Hectare situated at Village Bodha Nagria. In the name of providing treatment, Appellant-defendant Dwarika Prasad took the grandfather of plaintiff to Kasganj. On 16.01.1979 the appellant got a sale deed executed by his grandfather by way of fraud in his favour. 3.2. The Court of First Additional Munsif, Kasganj, Etah decreed the suit ex parte by order dated 11.04.1994 on account of non-appearance of defendant and declared the sale deed in question to be void and unenforceable. 3.3. The Appellant-defendant filed restoration application under Order IX Rule 13 and Section 151 of CPC on 31.10.1994. He stated that he was uneducated, naïve and old aged person unable to understand Court proceedings; he had put full faith in his previous counsel Shri Ramgopal Singh. However, on 26.10.1994 the Respondent and his brothers publicly said to the Appellant that they have got the sale deed cancelled and have also got the name of the Appellant removed. As suspicion arose in the Appellant’s mind, he appointed Shri Ashok Kumar Verma as his counsel who inspected the file in the Revenue Court, Kasganj. The Appellant was informed about the ex parte decree, on 27.10.1994. The Counsel for the Appellant found copy of the ex parte decree the next day on 28.10.1994. Accordingly, on 31.10.1994 the Appellant filed the restoration application. The Appellant stated in the application that his previous counsel Shri Ramgopal Singh played fraud over him as he conspired with Respondent.

4Copy pinpoint4. The Trial Court allowed the restoration application and set aside the ex parte decree by order dated 29.04.2000. It found that the Appellant is illiterate and he has put thumb impressions wherever his counsel asked him to put. He was kept unaware of the legal proceedings by the previous counsel. Only after the revenue court

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rejected the proceedings initiated by the Appellant for mutation, the new counsel was appointed. As the new counsel came to know about the ex parte decree, the restoration application has been filed. The Trial Court thus held that the Appellant cannot suffer due to errors of his counsel and it found it justifiable to provide full opportunity of hearing to the Appellant.

5Copy pinpoint5. Thereafter on 10.05.2000, the Respondent filed Revision (Civil Revision No.51 of 2000) under section 115 of CPC against the order of the Trial Court dated 29.04.2000. Respondent claimed that the restoration application is time barred and the Appellant had knowledge of ex parte decree since beginning. The Additional District Judge at Etah allowed the Revision, holding that the Appellant did not move the application under section 5 of the Limitation Act, which is a mandatory requirement when the application under Order IX Rule 13 of CPC is filed after a considerable delay and such delay requires explanation. Thus, the District Court, by order dated 17.02.2004, held that the order of the Trial Court was in violation of mandatory provisions of law.

6Copy pinpoint6. Aggrieved, the Appellant filed Writ Petition being Civil Miscellaneous Writ Petition No.18990 of 2004 against the order of the District Judge dated 17.02.2004. The Appellant pleaded that the District Court has taken a hyper technical approach in dismissing the restoration. Further, he had clearly submitted in the restoration application that he came to know about the ex parte decree on 28.10.1994 and without further delay he filed restoration application on 31.10.1994. Thus, from the date of knowledge, the limitation for filing the application will start. There was no requirement of filing a separate application for condonation of delay as the restoration application itself was not time barred.

7Copy pinpoint7. The High Court by the impugned order dated 24.05.2022, dismissed the Writ petition filed by the Appellant. The High Court has held that the limitation for filing application under Order IX Rule 13 CPC is 30 days and it starts running from the date of the decree. As the ex parte decree was passed on 11.04.1994, the limitation for filing the restoration application expired on 11.05.1994. However, the application was filed by the Appellant on 31.10.1994, which is about five months after expiry of the limitation. Since the application was filed beyond time, it must be accompanied with an application under section 5 of the Limitation Act praying for condonation of delay. As no such application was filed by the Appellant, there was no proper application

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under Order IX Rule 13 of CPC in the eye of law. Thus, the High Court held that the Addl. District Judge was correct in allowing the Revision.

8Copy pinpoint8. The Appellants preferred the Special Leave to Appeal before this Court against the order of the High Court. This Court has issued notice and granted six weeks’ time to file the counter affidavit on 20.07.2022. The Respondent has not filed the counter affidavit till date. The counsel for Respondent had put in appearance, way back in October 2022. He was not present on multiple dates including the last date, when this matter was heard on 09.12.2024.

9Copy pinpoint9. We have heard learned counsel for the appellant and perused the record. We are of the opinion that the High Court has erred in upholding the order of the Additional District Judge. The Trial Court had rightly allowed the restoration application filed by the Appellant under Order IX Rule 13 of CPC. It is