Not Necessary To File Separate Application For Delay Condonation Along With Application To Set Aside Ex-Parte Decree : Supreme Court
The Supreme Court ruled that a separate application seeking condonation of delay is not necessary to be filed along with an application seeking to set aside an ex-parte decree under Order IX Rule 13 of the Civil Procedure Code, if the application sufficiently explains the delay.
The bench comprising Justice Vikram Nath and Justice Prasanna B. Varale was hearing an appeal challenging the Allahabad High Court's decision, which upheld the First Appellate Court's ruling that overturned the trial court's order allowing the restoration application filed by the Appellant-Defendant for restoration of the ex-parte decree passed against him. The First Appellate Court overturned the trial court's decision citing that a separate application as per Section 5 of the Limitation Act was not filed along with the Order IX Rule 13 application.
The case concerns the restoration of a civil suit where an ex parte decree was passed, declaring a sale deed null and void on grounds of fraud.
The restoration application was filed after 5 (five) months of the ex-parte decree passing. The appellant-defendant claimed that he was an uneducated and elderly person who relied entirely on his previous counsel, who failed to inform him about the proceedings.
The Respondent-Plaintiff argued that since the application was filed beyond the stipulated time limit of 30 days, it would not be maintainable in the absence of a delay condonation application.
The question that appeared for the Court's consideration was whether a separate application for condonation of delay under Section 5 of the Limitation Act was mandatory.
Answering in negative, the judgment authored by Justice Nath observed that Order IX Rule 13 of CPC allows the restoration of the ex-parte decree beyond the stipulated period if sufficient cause is shown.
The Court noted that the restoration application sufficiently explained the delay in preferring the restoration application i.e., the Appellant was not made aware of the ex-parte decree by his previous counsel.
Observing that the restoration application contains all the ingredients of delay condonation application as held in Bhagmal and Ors Vs. Kunwar Lal and Others (2010), thus the court held that no separate application for condoning the delay that occurred in filing the restoration application was required under the Limitation Act.
“The question of filing Order 9 Rule 13 application was, in our opinion, rightly considered by the appellate court on merits and the appellate court was absolutely right in coming to the conclusion that the appellant defendants were fully justified in filing the application under Order 9 Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hypertechnical view that no separate application was filed under Section 5 (Limitation Act).”, the court said in Bhagmal.
“The application under Order 9 Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice.”, the court added.
"From the above cases, it is clear that there was no need to file a separate application for condonation of delay in the present case as well. The High Court has erred in taking a hyper technical view and concluding that there was violation of mandatory provision of law. Endorsing such a view would effectively mean ignoring the purpose of judicial procedure. The procedure cannot stand in the way of achieving just and fair outcome. In the present case, the Appellant acted bona fide and diligently. His conduct does not violate any rule of law.", the court held.
Accordingly, the appeal was allowed.
Mr. Nikhil Jain, AOR appeared for the Appellant
Case Title: DWARIKA PRASAD (D) THR. LRs. VERSUS PRITHVI RAJ SINGH
Citation : 2024 LiveLaw (SC) 1037