The Allahabad High Court, while allowing an appeal assailing the order dated 10.12.2021 passed by Additional District and Sessions Judge, rejecting the restoration application moved by him under Order 9 Rule 13 read with 151 C.P.C. against the ex-parte judgment and decree dated 13.11.2009 passed by Additional District Judge, held that the defendant-appellant cannot be forced to file a separate formal application for the condonation of delay under Section 5 of the Limitation Act.
Brief Facts:
Zulfkar Ali (plaintiff-respondent) had filed a suit dated 14.7.2008 for a permanent prohibitory injunction against the defendant-appellant to restrain him from interfering in the peaceful possession of the plaintiff over the property in question. During the pendency of the suit, the plaintiff has moved an amendment application dated 23.3.2009 seeking additional relief of cancellation of the registered sale deed dated 2.2.1994 and to declare it as null and void. The aforesaid amendment application was allowed on 8.4.2009. The suit was proceeded ex-parte. When the defendant/appellant came to know this fact, he moved a restoration application. The learned trial court dismissed the restoration application. Hence, the present appeal.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that illegally declined to condone the delay for want of a separate formal application for the condonation of delay under Section 5 of the Limitation Act and knowledge of the pendency of the suit to the defendant-appellant through his wife Shobha Jain, which was tried to be established illegally based on the report of Court Amin dated 22.07.2008.
Contentions of the Respondent:
The Learned Counsel for the Appellant submitted that the defendant-appellant had full knowledge about the pendency of the suit which was evident from the report submitted by the Court Amit, therefore, proper steps for affixing notice at the front of the house of the defendant-appellant and obtaining signatures of two witnesses was completed by the Court Amin as required under the law.
Observations of the Court:
The Court noted that the learned trial court rejected the restoration application under Order 9 Rule 13 read with Section 151 C.P.C., treating the service sufficient upon the defendant-appellant on the basis of the report dated 22.07.2008 submitted by court Amin.
The Court observed that even in the absence of a formal application, delay can be condoned if there is sufficient material on record disclosing sufficient cause for the delay. In the matter at hand, the cause shown by the defendant-appellant for the delay in filing the restoration application is quite sufficient and convincing. Therefore, in the light of the prayer made by the defendant-appellant for granting benefit under Order 5 of the Limitation Act, the defendant-appellant cannot be forced to file a separate formal application for the condonation of delay under Section 5 of the Limitation Act.
The decision of the Court:
The Allahabad High Court, allowing the appeal, held that the judgement and order dated 10.12.2021 passed by the learned trial court dismissing the restoration application moved on behalf of the defendant-appellant under Order 9 Rule 13 C.P.C. is hereby quashed.
Case Title: Rakesh Kumar Jain v Zulfkar Ali
Coram: Hon’ble Justice Dinesh Pathak
Case no.: FIRST APPEAL FROM ORDER No. - 172 of 2022
Advocate for the Appellant: Mr. Ishir Sripat
Advocate for the Respondents: Mr. Pravindra Singh
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