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Allahabad High Court · body

2016 DIGILAW 3984 (ALL)

Rameshwari v. Dayalu

2016-12-09

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. -- Heard learned counsel for the petitioner and learned counsel appearing for the respondent nos.1 to 5. 2. The Original Suit was decreed ex-parte against the petitioner. Accordingly, the petitioner moved an application under Order 9 Rule 13 CPC for setting aside the same and gave explanation for the delay in filing it. The explanation for the delay was accepted by the order dated 25.08.2015 and a date was fixed for consideration of the application filed under Order 9 Rule 13 CPC on merits. 3. This order was challenged by the respondents by means of a Revision No.87 of 2015. The said revision has been allowed by the impugned order dated 01.10.2016 and after setting aside the order dated 25.08.2015, the matter has been remanded to the trial court for re-consideration. 4. I have perused both the orders dated 25.08.2015 and 01.10.2016. 5. The Trial Court has condoned the delay in filing the application under Order 9 Rule 13 CPC without assigning any reason and holding that the cause shown is sufficient. 6. The revisional court has set aside the said order on the ground that the petitioner has not moved any separate application for condonation of the delay and the explanation for the delay was only furnished in the application filed under Order 9 Rule 13 CPC. The Trial Court could not have divided the subject matter of a single application into two parts and that the application under Order 9 Rule 13 CPC ought to have been decided simultaneously. 7. The reasons given by both the courts below for passing the orders are unsustainable in law. 8. However, as the revisional court has sent the matter back to the Trial Court for re-consideration, I do not think that any case of interference is made out with either of the two orders passed by the courts below under Article 227 of the Constitution of India. 9. In view of the above, I am not inclined to exercise my discretion in the matter and the petition is dismissed with the direction to the trial court to proceed and decide the matter regarding condonation of delay in filing the application under Order 9 Rule 13 CPC as well as the application for setting aside the ex-parte decree in accordance with law without being influenced by any observation or finding given by the Revisional Court.