Dilip Kumar S/O Bhanaram vs Bajranglal Bhargava S/O Sukharam
2022 Latest Caselaw 2724 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil First Appeal No. 114/2022
Dilip Kumar S/o Bhanaram
                                                                  ----Appellant
                                   Versus
Bajranglal Bhargava S/o Sukharam,
                                                                ----Respondent

For Appellant(s)         :     Mr. Sunil Kumar Jain
For Respondent(s)        :     Mr. Brij Bhushan Ojha


        HON'BLE MR. JUSTICE SUDESH BANSAL
                       Order
31/03/2022

Appellant-defendant has filed this first appeal assailing the

judgment and decree dated 22.03.2018 passed by Additional

District Judge No.2, Jhunjhunu, District Jhunjhunu in Civil Suit

No.41/2012 whereby and whereunder the civil suit for specific

performance and permanent injunction filed by respondent-

plaintiff was decreed in ex parte against appellant. The suit

property is a shop situated at Amedkar Market, Jhunjhunu.

Since, there is some delay in filing the first appeal, separate

application under Section 5 of Limitation Act has also been filed.

In the application, the appellant has alleged that although he

engaged advocate to appear and contest the suit, however, his

advocate did not appear before the trial court nor inform about

passing of ex parte decree. Initially appellant filed an application

under Order 9 Rule 13 CPC which was dismissed vide order dated

04.09.2018 and then he availed the remedy of writ petition

challenging the dismissal of his application under Order 9 Rule 13

CPC which too was dismissed on 06.12.2021. Having failed in the

proceedings of setting aside of ex parte decree, the appellant has

filed this first appeal thereafter on 27.01.2022.

(2 of 2) [CFA-114/2022]

No reply to the application under Section 5 of Limitation Act

has been filed.

Having considered the reasons assigned by appellant for

condoning the delay in filing the first appeal, this Court finds that

before filing of first appeal, the appellant had pursued his remedy

by way of Order 9 Rule 13 CPC proceedings to set aside the ex

parte decree. The time incurred in pursuing the ex parte

proceedings can be adjusted while condoning the limitation for the

first appeal. The Supreme Court, in case of N Mohan vs. R.

Madhu reported in [2020 AIR (SC) 41] also propounds the

same principle in relation to condonation of delay in filing the first

appeal. Otherwise also, the first appeal is a statutory right of

party to assail the judgment and decree. No malafides seems to

be on the part of appellant in filing the first appeal belated.

In such facts and circumstances, this Court deems it just and

proper to condone the delay and allow the application under

Section 5 of Limitation Act and the same is allowed. Thus, the first

appeal is treated within limitation and be heard on merits.

Heard counsel for both parties for admission.

Admit.

Issue notice.

Since counsel for respondent has already put in appearance,

therefore, no need to issue notices.

Record of the trial court be also summoned.

During course of appeal, execution of the impugned

judgment and decree dated 22.03.2018 shall remain stayed.

The stay application stand disposed of.

(SUDESH BANSAL),J

SAURABH/29

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