A bench of Justices Vikram Nath and Prasanna B Varale also said the procedure cannot stand in the way of achieving just and fair outcome.

 

Court allowed an appeal filed by legal representatives of one Dwarika Prasad (deceased) against the orders by the District Judge, Etah, and the Allahabad High Court.

 

The District Judge had allowed the civil revision filed by respondent Prithvi Raj Singh under section 115 of the Civil Procedure Code against the order of April 29, 2000, passed by Additional Civil Judge (Junior Division) Kasganj in a civil miscellaneous case. The trial court had allowed the restoration application under Order IX Rule 13 and section 151 of CPC filed by the appellant Dwarika Prasad.

 

The High Court had effectively dismissed the restoration application, confirming the ex parte decree of April 11, 1994, passed in favor of the respondent.

 

As per the facts of the matter, respondent- plaintiff Prithviraj Singh instituted a civil suit seeking declaration of a sale deed as null and void on the ground of fraud played by the appellant defendant.

 

The suit was decreed ex parte in 1994 on account of non-appearance of defendant and the sale deed in question was declared as void and unenforceable.

 

The appellant-defendant filed a restoration application, stating that he was an uneducated, naïve and old-aged person unable to understand court proceedings; he had put full faith in his previous counsel. However, after the respondent and his brothers publicly said to the appellant that they had got the sale deed cancelled and had also got the name of the appellant removed, he appointed another counsel who inspected the file and informed about the ex parte decree.

 

The trial court allowed the restoration application and set aside the ex parte decree. It found that the appellant was illiterate and he had put thumb impressions wherever his counsel asked him to put. He was kept unaware of the legal proceedings by the previous counsel.

 

The Additional District Judge at Etah, however, 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 held that the order of the trial court was in violation of mandatory provisions of law.

 

A writ petition filed by the appellant was dismissed by the High Court, which 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 April 11, 1994, the limitation for filing the restoration application expired on May 11, 1994. However, the application was filed by the appellant on October 31, 1994, which was 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, the High Court said. As no such application was filed by the appellant, there was no proper application under Order IX Rule 13 of CPC in the eye of law. Thus, the High Court held that the Additional District Judge was correct in allowing the revision.

 

After hearing the counsel and perusing the record, the Supreme Court said, "We are of the opinion that the High Court has erred in upholding the order of the Additional District Judge. The trial court has rightly allowed the restoration application filed by the appellant under Order IX Rule 13 of CPC. It is well settled that courts should not shut out cases on mere technicalities but rather afford opportunity to both sides and thrash out the matter on merits. Further, we cannot let the party suffer due to negligent or fault committed by their counsel".

 

The court noted in the present case, the appellant had trusted his counsel to manage the suit proceedings. However, he was not made aware of the ex-parte decree by his previous counsel.

 

It is only after the appointment of the new counsel that the appellant got to know about the ex parte decree. Therefore, the Additional Sessions Judge ought not to have exercised the revisional jurisdiction in interfering with the order of the trial court where it had exercised its discretion in setting aside the ex-parte decree for justifiable reasons accepting the reasons given by the defendant-appellant, the bench felt.

 

The court also held there was no need to file a separate application for condonation of delay in the present case.

 

"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 bench said.

 

The court set aside the High Court's order of May 24, 2022, and restored the trial court order of April 29, 2000. The bench directed the trial court to proceed in accordance with law.

 

"As the suit is an old one, we further direct the trial court to expedite hearing of the suit and make an endeavour to decide the same within a year," the bench said.