Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3946 (ALL)

Kamal-Ud-Din v. Sahab-Ud-Din @ Shamsuddin

2016-12-07

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. -- Heard Sri Rahul Mishra, learned counsel for the petitioner and Sri Manoj Kumar Pandey, for the respondent. 2. The petitioner has preferred this petition challenging the judgment and order dated 10.10.2016 passed by the Revisional Court. 3. It appears that Original Suit No.213 of 2007, Sahab-ud-in Vs. Kamal-ud-in, was decreed ex-parte on 23.05.2007. 4. The petitioner applied under Order 9 Rule 13 CPC for setting aside the aforesaid ex-parte decree along with an application under Section 5 of Limitation Act for condoning the delay in filing the above application. 5. The Court of first instance by the order dated 12.09.2016 condoned the delay in filing the application under Order 9 Rule 13 CPC and at the same time, ordered for setting aside the ex-parte decree and for the trial of the suit afresh. 6. This order was challenged by the respondent by filing Civil Revision No.92 of 2016. 7. The revision has been allowed by the impugned order solely on the ground that by a common order, the delay condonation application and the application for setting aside ex-parte decree cannot be allowed. 8. The submission of learned counsel for the petitioner is that reasoning adopted by the Revisional Court is totally unwarranted and that there is no bar in deciding delay condonation application and the application for setting aside ex-parte decree simultaneously. 9. Sri Pandey, learned counsel for the respondent, on the other hand, relying upon the decision of this Court in Jais Lal Vs. Deputy Director of Consolidation and another 2014(1) ADJ 248 contends that the delay condonation application and the application for setting aside ex-parte decree cannot be decided simultaneously and that there should be a gap of atleast 30 days between the two decisions. 10. The above decision holds that the delay condonation and the application/revision/appeal may be decided simultaneously but unless delay is condoned, the appeal/revision/application will not be competent and same cannot be decided. The said decision in the end further says that where delay is condoned the matter may be decided on merit but not prior to one month from the date of allowing application under Section 5 of the Limitation Act. 11. The said decision in the end further says that where delay is condoned the matter may be decided on merit but not prior to one month from the date of allowing application under Section 5 of the Limitation Act. 11. It may be pertinent to note that as soon as the delay in filing any application, appeal or revision is condoned, the application, appeal or revision becomes competent and the Court can proceed to decide the same on merits. 12. There is no law which prohibits simultaneous decision of both applications. The above decision Jais Lal (supra) has been considered by me in Kesera Devi Vs. District Judge 2016(6) ADJ 21 : 2016 (3) ARC 209 and it has been held that there is no bar in law to simultaneously consider the delay condonation application and the appeal/revision/any substantive application on merits. Therefore, the decision of delay condonation application and the appeal/revision or any application on merits by a common order is not illegal. 13. This apart, it is settled law that the Revisional Court should always be slow in interfering with the discretion of the trial Court in condoning of the delay and allowing the application for setting aside ex-parrte decree as has been laid down in the decision of this Court in 2011(29) LCD 2004 Jahuran Vs. Additional District Judge, Azamgarh and others. 14. In view of the aforesaid facts and circumstances, the order of the Revisional Court dated 10.10.2016 setting aside the order of the Trial Court dated 12.09.2016 is unsustainable in law as is accordingly set aside and the Revisional Court is directed to reconsider and re-decide the civil revision in accordance with law on its own merits. 15. The petition is allowed.