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Uttarakhand High Court · body

2014 DIGILAW 520 (UTT)

Pradeep Kumar v. Raj Kumar Gupta

2014-11-13

ALOK SINGH

body2014
Judgment : 1. A suit for declaration filed by plaintiff / petitioner, herein, was decreed ex parte vide judgment and order dated 10.05.2011 passed by the Assistant Collector 1st Class / SDO, Nainital. Defendant / respondent no. 1, herein, moved an application under Order 9 Rule 13 CPC for setting aside the judgment and decree dated 10.05.2011, which was summarily dismissed by the trial court vide order dated 30.08.2011 saying application was time barred. 2. Feeling aggrieved, defendant / respondent no. 1, herein, preferred an appeal before the Divisional Commissioner, Kumaon being ZA Appeal No. 81 / 2010-11, which was allowed by learned Appellate Court vide order dated 06.03.2013. This time, feeling aggrieved plaintiff/ petitioner, herein, preferred second appeal before the Board of Revenue, which too was dismissed vide order dated 20.10.2014. 3. Feeling aggrieved, plaintiff / petitioner, herein, has invoked writ jurisdiction of this Court under Article 226/227 of the Constitution of India assailing the orders passed by the Appellate Courts. 4. Undisputedly, application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree was dismissed by the trial court in limine saying it was barred by time. 5. I have carefully perused the orders passed by both the Appellate Courts. None of the Appellate Courts has recorded any finding on the question as to why delay in moving the application for setting aside the ex parte judgment and decree should be condoned. Not only this, delay in moving the application under Order 9 Rule 13 was never condoned either by the first Appellate Court nor by the second Appellate Court and without condoning the delay, application moved under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree, was allowed. 6. In my considered opinion, first of all application seeking condonation of delay in moving the application under Order 9 Rule 13 CPC ought to have been disposed of. If application seeking condonation of delay in moving application under Order 9 Rule 13 CPC is allowed only then learned court can decide the application under Order 9 Rule 13 CPC. 7. In my considered opinion, first of all application seeking condonation of delay in moving the application under Order 9 Rule 13 CPC ought to have been disposed of. If application seeking condonation of delay in moving application under Order 9 Rule 13 CPC is allowed only then learned court can decide the application under Order 9 Rule 13 CPC. 7. However, in the present case, first appellate court, without condoning the delay has decided application under Order 9 Rule 13 CPC, at its own merit and order passed by first Appellate Court has been confirmed by second Appellate Court without looking into this aspect of the matter, therefore, orders passed by all the three courts are liable to be set aside. 8. Consequently, present writ petition is allowed. Orders dated 30.08.2011, 06.03.2013 and 20.10.2014 passed by all the courts are hereby set aside. Application under Order 9 Rule 13 CPC stands restored to its original number on the file of trial court. 9. Learned trial court, after giving sufficient opportunity to both the parties to move appropriate applications / objections and affidavits in support and against the plea of condonation of delay in moving the application under Order 9 Rule 13 CPC, shall first decide the application seeking condonation of delay and if delay is condoned, then only trial court shall decide the application under Order 9 Rule 13 CPC at its own merit, in accordance with law, after hearing both the parties.