JUDGMENT : Order on Civil Misc. Delay Condonation Application No.268647 of 2012. 1. The delay condonation application has been filed to condone the delay in filing the Substitution Application No.268649 of 2012 to substitute the legal heirs of respondent no.3 Sariful Hasan, who died on 06.03.2009 and legal heirs of respondent no.4, Nazmul Hasan, who died on 06.06.2010. 2. A joint affidavit in support of aforesaid two applications has been file by one Abul Hasan. The aforesaid substitution application has been filed on 10.09.2012. The reason for delay has been stated in paragraph 5 to 8 of the affidavit which are being extracted hereinbelow:- “5. That subsequent to the death of the aforesaid respondents although substitution application, for bringing their heirs on record, was filed on behalf of the petitioner in case no. 54/2008 (Shamsul Hasan Versus Saliya Khatoon) which is pending before the Civil Judge (Jr. Div.) Khaga District Fatehpur but due to inadvertent mistake this substitution application, immediately after death of the deceased/respondents, could not be filed in the present writ petition. 6. That recently on 20.4.2012 an abatement application with regard to the deceased respondent no.3 and 4 was received in the office of the learned counsel for the petitioners whereby the deponent received information for taking necessary steps and for filing of reply to the same. 7. That immediately thereafter the deponent rush to Allahabad, informed the aforesaid necessary facts to his learned counsel immediately where after without any further delay, the present substitution application is being filed. 8. That the delay occurred in filing the present substitution application is neither intentionally nor knowingly as such same may be condoned and present substitution application may be allowed setting aside the abatement if any.” 3. The respondent no.2 filed counter affidavit to the aforesaid delay condonation application contending inter alia that petitioner in paragraph 5 of the affidavit has not stated the date of filing the substitution application in Case No.54 of 2008 (Shamsul Hasan Vs. Saliya Khatoon) pending before Civil Judge (Junior Division), Khaga, District Fatehpur. It is further stated that the deceased and petitioners belonged to one family and were neighbours, and petitioners had full knowledge about the death of respondent nos.3 & 4. Thus, the delay in filing the substitution application was deliberate and intentional. Saliya Khatoon) pending before Civil Judge (Junior Division), Khaga, District Fatehpur. It is further stated that the deceased and petitioners belonged to one family and were neighbours, and petitioners had full knowledge about the death of respondent nos.3 & 4. Thus, the delay in filing the substitution application was deliberate and intentional. It is further stated that the abatement application filed by respondent no.2 was served in the office of counsel for petitioner on 20.04.2012, and petitioners filed substitution application on 09.09.2012 after 114 days from the date of receiving the abatement application without stating the cause for delay of 114 days in filing the substitution application. On the basis of aforesaid pleadings, respondent no.2 has prayed for dismissal of the delay condonation application. 4. I have considered the rival submissions of the parties and perused the record. 5. The respondent no.3 had died on 06.03.2009 and respondent no.4 had died on 06.06.2010, therefore, there was delay of about more than three years from the date of death of respondent no.3 and more than two years from the date of death of respondent no.4 in filing the substitution application. The paragraph 5 of the affidavit filed in support of the delay condonation application, extracted above, clearly reveals that petitioners had knowledge about the death of respondent nos.3 & 4 and they had filed the substitution application to bring the legal heirs of respondent nos.3 & 4 on record in Case No.54 of 2008 (Shamsul Hasan Vs. Saliya Khatoon), but no reason has been given by the petitioners in the affidavit which prevented the petitioners from filing the substitution application in the present case. 6. Further, it is also admitted on record that petitioners had received abatement application filed by respondent no.2 on 20.04.2012, yet petitioners did file substitution application, and no explanation has been tendered by the petitioners in the affidavit for 114 days delay in filing the substitution application after receiving the abatement application. 7. 6. Further, it is also admitted on record that petitioners had received abatement application filed by respondent no.2 on 20.04.2012, yet petitioners did file substitution application, and no explanation has been tendered by the petitioners in the affidavit for 114 days delay in filing the substitution application after receiving the abatement application. 7. In view of this fact, the Court is of the opinion that there is inordinate delay of more than three years from the date of death of respondent no.3 and more than two years from the date of death of respondent no..4 in filing the substitution application, and no cogent and sufficient explanation has been tendered by the petitioners which prevented them from filing the substitution application in time, therefore, delay in filing the substitution application was not bona-fide. 8. At this juncture, it would be apt to refer the judgment of Apex Court in the case of Balwant Singh (dead) Vs. Jagdish Singh and others, AIR 2010 SC 3043 wherein Apex Court has refused to condone the delay of 778 days in filing the substitution application by heirs of appellant who died on 28.11.2007. Paragraph 13 of the judgment is extracted hereinbelow:- “13. As held by this Court in the case of Mithailal Dalsangar Singh (supra), the abatement results in the denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be construed liberally. We may state that even if the term `sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [ (2000) 9 SCC 94 ], this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and others v. Rewa Coalfields Ltd., [ AIR 1962 SC 361 ] this Court took the view: "7. In construing Section 5 is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269. It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;... 9. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;... 9. Thus, for the reasons given above and in the light of judgment of Apex Court in the case of Balwant Singh (dead) (supra), the delay condonation application lacks merit and is accordingly, dismissed. Consequently, substitution application is also dismissed and abatement application No.128911 of 2012 filed by the respondent no.2 is allowed and writ petition is abated against the respondent nos.3 and 4. Order on Writ Petition. 1. The petitioners by means of the present writ petition have assailed the order dated 14.08.2006 passed by the Additional Commissioner (Second), Allahabad Division, Allahabad in Revision No.333 of 2005 (Smt. Saiyda Saleha Khatoon Vs. Manzar Hasan and Others) and order dated 20.12.2008 passed by Additional Commissioner (Second), Allahabad Division, Allahabad on Review Application of petitioners in Revision No.333 of 2005. 2. The facts of the present case in nutshell are that respondent no.2 Smt. Saiyda Saleha Khatoon instituted Case No.10 of 1998-99 under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950 in the court of Sub-Divisional Magistrate, Khaga, Fatehpur (hereinafter referred to as ‘S.D.M, Fatehpur’) praying for decree of partition of Gata No.66 having an area of 0.767 hectare, Gata No.826 having an area of 0.065 hectare and Gata No.850 having an area of 0.720 hectare situated in Araji Mauja Bahera Sadat, Pargana Hathgaam, Tehsil Khaga, District Fatehpur. 3. The aforesaid suit has been instituted by respondent no.2 contending inter alia that she is the owner of half of the aforesaid gatas and respondent nos.3 to 5 and 7 (defendants in the suit) are the owner of remaining half of the aforesaid gatas. It appears that the suit proceeded exparte against the petitioners as well as respondent nos.3 to 5 and 7. The suit was decreed ex-parte by judgment and order dated 23.06.1999 passed by S.D.M., Khaga, Fatehpur. Thereafter, a preliminary decree was prepared on 28.05.1999. Pursuant to the aforesaid decree, quras were also prepared on 23.06.1999. 4. The petitioners allege that they came to know about the exparte decree only when quras were sought to be executed on spot on 23.06.1999. The suit was decreed ex-parte by judgment and order dated 23.06.1999 passed by S.D.M., Khaga, Fatehpur. Thereafter, a preliminary decree was prepared on 28.05.1999. Pursuant to the aforesaid decree, quras were also prepared on 23.06.1999. 4. The petitioners allege that they came to know about the exparte decree only when quras were sought to be executed on spot on 23.06.1999. The petitioners, thereafter, filed an application under Order 9 Rule 13 of C.P.C. on 28.1.2003 registered as Misc. Case No.10 of 199899 before the S.D.M, Fatehpur for setting aside the exparte judgment dated 23.06.1999, preliminary decree dated 28.05.1999 and order dated 23.06.1999 directing for preparation of quras. 5. In the aforesaid application, petitioners alleged that they came to know about the exparte decree from Lekhpal when he sought to execute the quras prepared pursuant to the exparte decree. It is further stated that mother of applicant was suffering from cancer and was undergoing treatment at Sanjay Gandhi Postgraduate Institute of Medical Sciences where she died and after funeral and observing other rituals, petitioners got the record of the case inspected and came to know on 22.01.2003 about the exparte decree. It is further stated that there was no service of summons upon the petitioners and by plying fraud, respondent no.2 has obtained exparte decree. It is further stated that there was no service of summons upon the petitioners and by plying fraud, respondent no.2 has obtained exparte decree. The necessary averments has been made in paragraph 3, 4 & 5 of the application which are being extracted hereinbelow:- nQk 3%& ;g fd izkFkhZ vcqy glu dks vHkh gky esa gh fnlEcj ds vfUre lIrkg esa tfj;s gYdk ys[kiky ds ek/;e ls tkudkjh gqbZ fd okn ls lEcfU/kr fookfnr Hkwfe dk ljdkjh caVokjk lkysgk [kkrwu us djk;k gS ftldh ekSds ij cWVokjk vkns'k ds gh rgr dCtk n[ky djk dj mudh esM+ ca/kokuh gS] rqjUr gh izkFkhZ vcqy glu us vius vU; HkkbZ ,oa eUtj glu dks bldh lwpuk nhA eUtj glu izkFkhZ dh ekW dSUlj ls ml oDr ihfM+r Fkh ftudk bykt og iksLV xsztq,V lat; xkW/kh laLFkku y[kum ls djk jgs Fks] fdUrq nqHkkZX;o'k mudk bUrdky Hkh gks x;k vkSj tc og viuh ekWdk pkyhlokW oxSjg djkus ds i'pkr~ mUgsa tc FkksM+k fnekxh lqewy feyk rc odhy lkgc ds ek/;e ls i=koyh cWVokjk dh eqvkbuk djk;k rc mUgsa loZ izFke fnukad 22-01-03 dks tkudkjh gq;h fd mDr lkysgk [kkrwu okfnuh us 'kjhQqy o tQ:y ds lkFk ,oa "kM;a= ds rgr viuk mDr cWVokjk fcuk ge izkFkhZx.k ds tkudkjh ds cxSj fof/kor~ lEeu rkehyk ds gh xyr rjhdksa ds ek/;e ls fcuk fdlh gd o vf/kdkj ds fookfnr Hkwfe esa viuk gd iSnk djus dh fu;r ls djk ikus esa QkSjh rkSj ij lQy gks x;kA nQk 4%& ;g fd izkFkhZ eUtj glu flfoy dksVZ Qrsgiqj esa tuojh 1978 bZ0 esa ukSdjh Tokbu djds viuk Lo;a dk jsgkbZ'k eksgYyk pkS/kjkuk edku uEcj 67 kgj o ftyk&Qrsgiqj esa jgrk pyk vk jgk gSA izkFkhZ dks dHkh Hkh mDr irs ij lEeu ugha Hkstk x;k vkSj lfoZl irs ij Hkh okfnuh }kjk dksbZ lEeu Hkstus dk dksbZ Hkh iz;kl tkucw> dj ugha fd;k x;k ;|fi fd okfnuh }kjk vius izkFkZuki= fnukad 17-12-1998 bZ0 esa bl rF; dk mYys[k fd;k x;k fd eUtj glu iq= de:y glu 'kgj Qrsgiqj esa ukSdjh djrs gSaA bl izdkj eUtj glu dh Qrsgiqj ds irs ij dksbZ Hkh lEeu U;k;ky; }kjk fuxZr ugha gqvk vkSj u gh mu ij dkuwuu lEeu dk dksbZ Hkh rkehyk i;kZIr gh ekuk tk ldrk gSA nQk 5%& ;g fd eUtj glu izkFkhZ ds vykokW izkFkhZx.k 'ke'kqy glu] gluSu glu] ,tkt glu o vcqy glu ij Hkh lEeu dk O;fDrxr dksbZ rkehyk ugha gS] fdUrq mu ij xyr rjhdksa ls b.MkslZes.V djk fn;k x;k gS] tcfd mu ij gLo eU'kk dkuwu vksn'k 5 fu;e 17 tkCtk nhokuh dk Hkh vuqikyu rkehyk ugha ekuk tk ldrk gSA** 6. The aforesaid application was contested by respondent no.2 by filing objection contending inter alia that restoration application filed by petitioners is highly time barred as it has been filed after four years from the date of the judgment in the partition suit. It is also contended that claim of Badrul Hasan, Kamrul Hasan and Faqrul Hasan, fathers of defendants in respect of property in dispute on the basis of some sale deed alleged to have been executed in the year 1923 was turned down by the consolidation officer by judgment dated 13.04.1976. 7. It is further averred that respondent no.2 filed a mutation case under Section 34 of L.R. Act which was opposed by judgment debtors and they lost the case upto the court of Additional Commissioner and name of respondent no.2 has been mutated in the revenue records. In the said application, respondent no.2 also gave reference to several other litigations which had been contested between the parties. In respect of service of notice, respondent no.2 gave details in paragraph 7 of the objection as to how the service of summons were effected upon the petitioner as well as other defendants in the suit. Paragraph 7 of the objection is being extracted hereinbelow:- “7 That so far the question of so-called technical service of summon and notice is concerned, this court made every effort to procure the attendance of all the J.Ds and the deponent complied all the orders of this court in this regard. For example:- “(I). The applicants Hasnain Hasan and Aijaz Hasan Nos. 3 and 4 are the real brothers and pairokar of the applicant nos.2 and 5 were personally served by process-server of this court on 14.12.1998 and their brothers summons was served by affixation. (II). That later the Gram Sabha and the opposite parties Nos.2 and 3 and 4, the J.Ds were also personally served who are no other an the real uncle's son of Manzar Hasan the Chief Mischief monger and this court having been satisfied that Manzar Hasan wielding his influence is deliberately avoiding service of summons. However, this court passed orders for summoning them by publication which was published on 13.12.1998. (III). That none of the J.Ds appeared in the court and as such the 1/2 (Half) share purchased by the Saleha Khatoon was held and ordered to be separated. However, this court passed orders for summoning them by publication which was published on 13.12.1998. (III). That none of the J.Ds appeared in the court and as such the 1/2 (Half) share purchased by the Saleha Khatoon was held and ordered to be separated. The court provided full opportunity to the defendants and passed the decree and final decree, delivered the possession. The J.Ds were taking false and lame excuses. Moreover, the share of the Vendor and that of Saleha Khatoon is not disputed now and cannot be asserted under law as the same is not only barred by principles of Resjudicata but also Role of Estoppel and the section 49 of U.P. Consolidation of Holdings Act. (IV). That the J.Ds have suffered no loss or injury or prejudice by the preliminary/final decree as nothing has been written in this regard and as such the application under Order 9 Rule 13 is totally untenable which will mean the turning round the whole judicial process and creating confusion and dispute on spot regarding possession. (V). That the application and affidavit of some of the Judgment Debtors are totally false and is time barred and also has no merit and is liable to be dismissed.” 8. The S.D.M, Fatehpur allowed the application under Order 9 Rule 13 of C.P.C. by order dated 05.07.2005. The order dated 05.07.2005 reads as:- i{kksa dks lqukA i=koyh ns[kkA U;k;fgr esa ,di{kh; vkns'k fn 13-01-99] 25-05-99] o 23-06-99 eq0 300@& ¼rhu lkS :i;k½ gtkZuk dh vnk;xh ij fujLr fd;k tkrk gSA g0v0 ,l0Mh0,e0 05-07-05 300@&rhu lkS :i;k izkIr fd;kA g0v0 18-07-05 9. Against the order dated 05.07.2005, respondent no.2 preferred Revision No.333 of 2005 before Commissioner, Allahabad which was later on transferred to the court of Additional Commissioner-II Allahabad Division, Allahabad (hereinafter referred to as ‘Additional Commissioner’). The revision was allowed by the Additional Commissioner by order dated 14.08.2006 by recording a finding that S.D.M., Fatehpur should have given notice of recall application to respondent no.2 (revision-applicant). It further recorded that the court below did not return any finding in respect of delay in filing the application under Order 9 Rule 13 of C.P.C. and without any order having been passed condoning the delay in filing the application under Order 9 Rule 13 of C.P.C., the ex-parte judgment and decree could not have been set aside by the S.D.M, Fatehpur. 10. 10. The petitioner, thereafter, preferred a review application against the order dated 14.08.2006 contending therein that finding of Additional Commissioner that revision-applicant (respondent no.2 in writ petition) was not heard before passing the order on the recall application was wrong and against the record inasmuch as the counsel for revision-applicant had accepted the cost of Rs.300/-. It is further stated in the review application that no order for condoning the delay in filing the recall application is needed, and revision court has erred in setting aside the order passed by the S.D.M., Fatehpur dated 05.07.2005. The aforesaid review application was dismissed by the Additional Commissioner by order dated 20.12.2008 as the Additional Commissioner found no merit in the review application. 11. Challenging the aforesaid order, learned counsel for the petitioner has contended that the revision court has erred in setting aside the ex-parte judgment and decree inasmuch as respondent no.2 is bound by the act of acceptance of cost by his counsel which amounted to acquiescing to the order of S.D.M., Fatehpur. Thus, he submits that once the cost has been accepted by counsel of the respondent no.2, the revision court has committed jurisdictional error in allowing the revision and setting aside the order dated 05.07.2005 passed by the S.D.M., Fatehpur. 12. Per contra, learned counsel for respondents has contended that detail objections were filed by the respondent no.2 before the S.D.M., Fatehpur against the application under Order 9 Rule 13 of C.P.C. wherein respondent no.2 has averred that there was inordinate delay in filing the recall application and further, facts in detail have been stated in the said objection regarding the service of summons upon the petitioners as well as other defendants, but the S.D.M., Fatehpur while passing the order dated 05.07.2005 has failed to record any finding on the said objection. He further contends that unless the delay in filing the application under Order 9 Rule 13 of C.P.C. was condoned, the S.D.M, Fatehpur had no jurisdiction to decide the application under Order 9 Rule 13 of C.P.C. He further submits that no application under Section 5 of Limitation Act had been filed praying for condonation of delay in filing the application under Order 9 Rule 13 of C.P.C. and thus, in the absence of any such application praying for condonation of delay and any order passed by the S.D.M., Fatehpur condoning the delay in filing the recall application, the order of S.D.M., Fatehpur dated 05.07.2005 is per se illegal and without jurisdiction. Thus, the submission is that revision court has not committed any jurisdictional error which calls for interference by this Court in exercise of power under Article 226 of Constitution of India. 13. I have considered the rival submissions of the parties and perused the record. 14. In the case in hand, the ex-parte judgment and decree was passed on 23.06.1999. The preliminary decree was prepared on 28.05.1999 and quras pursuant to the preliminary decree were prepared on 23.06.1999. The application under Order 9 Rule 13 of C.P.C. was filed by the petitioners on 28.01.2003 which was four years after the exparte judgment dated 23.06.1999. The record reveals that no application under Section 5 of The Limitation Act, 1963 was filed by the petitioners praying for condonation of delay in filing application to set aside ex-parte judgment and decree. Even in application under Order 9 Rule 13 of C.P.C., the petitioners have not made any averment explaining the delay in filing the application. Paragraph 3 to 5 of the application under Order 9 Rule 13 of C.P.C., extracted above, clearly reveals that vague averment has been made regarding the knowledge of the exparte judgment . 15. The respondent no.2 raised a specific objection regarding the maintainability of application under 9 Rule 13 of C.P.C. being barred by time in paragraph 7 (v) of the objection extracted above. The S.D.M. while allowing the application under Order 9 Rule 13 of C.P.C. did not deal with the objection of respondent no.2 regarding the maintainability of the application under Order 9 Rule 13 of C.P.C being barred by time. The S.D.M. while allowing the application under Order 9 Rule 13 of C.P.C. did not deal with the objection of respondent no.2 regarding the maintainability of the application under Order 9 Rule 13 of C.P.C being barred by time. Further, in paragraph 7 (i) to (v) of the objection, extracted above, petitioners have also made specific averment regarding the service of notice upon the petitioners. The S.D.M., Fatehpur did not consider the aforesaid objections and passed a cryptic order allowing the application under Order 9 Rule 13 of C.P.C with cost of Rs.300/-. 16. The petitioners raised specific objection in revision that application under Order 9 Rule 13 of C.P.C was barred by time and not maintainable and further, summons were duly served upon the petitioners and burden was upon the petitioners to prove that summons were not served upon them which the petitioners had utterly failed to do as they did not lead any evidence to substantiate the averment made in application under Order 9 Rule 13 of C.P.C that summons were not served upon them. 17. The revision court after hearing parties recorded specific finding that in absence of any delay condonation application or any order passed by the S.D.M., Fatehpur condoning the delay in filing the application under Order 9 Rule 13 of C.P.C, the S.D.M., Fatehpur had no jurisdiction to decide application under Order 9 Rule 13 of C.P.C. The revision court also noticed the fact that no notice fixing the date of hearing on application under Order 9 Rule 13 of C.P.C was served upon respondent no.2, and therefore, the order of S.D.M, Fatehpur dated 05.07.2005 is not sustainable as the same was without hearing the respondent no.2. The Additional Commissioner while deciding the review application found that there was no error committed by the revision court in deciding the revision and, consequently, Additional Commissioner found no merit in the review application and rejected the same by order dated 20.10.2008. 18. Now, the question that arises for consideration in the present case is as to whether S.D.M, Fatehpur had jurisdiction to proceed with the application under Order 9 Rule 13 of C.P.C filed after the period of limitation without condoning the delay in filing the application. 19. Article 123 of schedule of the Limitation Act, 1963 provides for limitation in filing an application to set aside a decree passed exparte or heard exparte. 19. Article 123 of schedule of the Limitation Act, 1963 provides for limitation in filing an application to set aside a decree passed exparte or heard exparte. Article 123 is extracted hereinbelow:- “THIRD DIVISION-APPLICATIONS Description of application Period of Limitation Time from which period begins to run. 123. To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte. Thirty days The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. Explanation-For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.” 20. Thus, Article 123 provides 30 days time for filing application to set aside the ex-parte decree from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. 21. It would be apt to refer the judgment of Apex Court in the case of Ramesh Chand Sharma Vs. Udham Singh Kamal and Others 1999 (8) SCC 304 where Apex Court had set aside the judgment of Central Administrative Tribunal whereby the Central Administrative Tribunal had allowed the original application without condoning the delay in filing the original application which was admittedly filed after the period of limitation. Paragraph 6 & 7 of the judgment is extracted hereinbelow:- “6. Learned Counsel for the first respondent urged that after his representation was rejected by the Himachal Pradesh Government on 2nd July, 1991. he had made another representation pointing out the factual position and, therefore, the period of limitation needs to be counted not from 2nd July, 1991 but from the date of rejection of his second representation (no date mentioned). He also urged that the vacancy arose because one Shri Sita Ram Dholeta who was holding the post and working as Translator-cum-Legal Assistant went on deputation in March, 1990 by keeping a Hen on the said post. This respondent was under a bonafide belief that until the lien comes to an end, there may not be a clear vacancy and, therefore, as and when such vacancy arises, his claim would be considered. It is in these circumstances, he did not file O.A. at an early date. If there be any delay, the same may be condoned. This respondent was under a bonafide belief that until the lien comes to an end, there may not be a clear vacancy and, therefore, as and when such vacancy arises, his claim would be considered. It is in these circumstances, he did not file O.A. at an early date. If there be any delay, the same may be condoned. 7. On perusal of the materials on record and after hearing counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21(3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the O.A. filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunals Act, 1985. The law in this behalf is now settled, (see Secretary to Government of India and Others v. Shivam Mahadu Gaikwad, [1995] Supp. 3 SCC 231)” 22. The S.D.M, Fatehpur while allowing the application under Order 9 Rule 13 of C.P.C has failed to appreciate that the application of the petitioners under Order 9 Rule 13 of C.P.C. was not maintainable in absence of delay condonation application. Further, even in application under Order 9 Rule 13 of C.P.C, the petitioners have not averred any fact explaining the delay in filing the application under Order 9 Rule 13 of C.P.C nor they had disclosed the date of knowledge of the ex-parte judgment . 23. The respondent no.2 has raised the issue of maintainability of application under Order 9 Rule 13 of C.P.C being barred by time and further, summons were duly served upon the petitioners. The aforesaid objections raised by the respondent no.2 were not dealt by S.D.M., Fatehpur in allowing the application under Order 9 Rule 13 of C.P.C. Thus, this Court finds that S.D.M, Fatehpur has committed jurisdictional error in allowing application under Order 9 Rule 13 of C.P.C. without there being any proper application for condonation of delay which has been rightly corrected by the revision court in exercise of its revisional power. Thus, the order of the revision court is based on settled principles of law and there is no illegality or infirmity in the said order. 24. As regards the objection of the petitioners that once the cost of Rs.300/-is accepted by counsel for respondent no.2, it is not open to respondent no.2 to challenge the said order. In this regard, it would be worth to refer two judgment s of Apex Court namely, Himalayan Cooperative Group Housing Society Vs. Balwan Singh 2015 (7) SCC 373 and Director of Elementary Education Odisha & Others Vs. Pramod Kumar Sahoo 2019 (10) SCC 674 relied upon by the learned counsel for the respondents which deals with the clients and lawyers relationship. 25. Paragraph 23 of the judgment of Apex Court in the case of Himalayan Cooperative Group Housing Society (supra) is being extracted hereinbelow:- “23. Apart from the above, in our view lawyers are perceived to be their client’s agents. The law of agency may not strictly apply to the client – lawyer’s relationship as lawyers or agents, lawyers have certain authority and certain duties. Because lawyers are also fiduciaries, their duties will sometimes more demanding than those imposed on other agents. The authority-agency status affords the lawyers to act for the client on the subject matter of the retainer. One of the most basic principles of the lawyer-client relationships is that lawyers owe fiduciary duties to their clients. As part of those duties, lawyers assume all the traditional duties that agents owe their principals and, thus, have to respect the client’s autonomy to make decisions at a minimum, as to the objectives of the representation. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client’s instructions rather than substitute their judgment for that of the client. The law is now well settled that a lawyer must be specifically authorised to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise/ settlement. To put it alternatively that a lawyer by virtue of retention, has the authority to choose the means for achieving the client’s legal goal, while the client has the right to decide on what the goal will be. To put it alternatively that a lawyer by virtue of retention, has the authority to choose the means for achieving the client’s legal goal, while the client has the right to decide on what the goal will be. If the decision in question falls within those that clearly belong to the client, the lawyers conduct in failing to consult the client or in making the decision for the client, is more likely to constitute ineffective assistance of counsel” 26. Paragraphs 8 and 11 of the judgment of Apex Court in the case of Director of Elementary Education Odisha (supra) relevant in the present case are extracted hereinbelow:- “8. Learned counsel for the appellant submitted that the separate pay scales are provided for Untrained Matric Teachers (Rs.975-25-1, 150-E.B.-30-1,660) and for Trained Matric Teachers (Rs.1,080-30- 1,440-EB-30-1,800). Merely because the respondent is intermediate, that is higher qualification than the Matric, does not make him a Trained Teacher. Therefore, the concession given by the State counsel is erroneous concession in law and, does not bind the appellant. Reference was made to Himalayan Coop. Group Housing Society v. Balwan Singh & Ors.2 wherein, this Court held as under: “32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions….” (Emphasis supplied) 9.... 10.... 11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. 10.... 11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant”. 27. In the aforesaid cases, the Apex Court has held that if the act of advocate is not in furtherance to accomplish the purpose for which he has been engaged by his client or against the statutory provisions or rules, such an act of advocate would not be binding upon the client. In the present case, acceptance of cost by the advocate of the respondent no.2 is not an act in furtherance to accomplish the purpose for which he was engaged and also in violation of statutory provision as the application under Order 9 Rule 13 of C.P.C. was incompetent in absence of delay condoantion application and any order passed condoning the delay in filing the aforesaid application. Thus, such an act of respondent no.2 would not debar the respondent no. 2 from challenging the order of S.D.M., Fatehpur setting aside ex-parte judgment and decree. Thus, the contention of petitioners that the acceptance of cost by the advocate would debar the respondents from challenging the order dated 05.07.2005 is misconceived and not sustainable in law. 28. Thus, for the reasons given above, this Court finds no merit in the submission of the counsel for the petitioner. The writ petition lacks merit and is, accordingly, dismissed. There is no order as to cost.