DWARIKA PRASAD (D) THR. LRS.versusPRITHVI RAJ SINGH

                  [2024] 12 S.C.R. 2075 : 2024 INSC 1030

                        Dwarika Prasad (D) Thr. LRs.
                                     v.
                             Prithvi Raj Singh
                         (Civil Appeal No. 14830 of 2024)
                                 20 December 2024
               [Vikram Nath* and Prasanna B. Varale, JJ.]


                               Issue for Consideration
          Whether a separate application for condonation of delay is
          mandatory in cases where sufficient justification was provided
          while seeking restoration against ex-parte decree.

                                     Headnotes†
          Requirement of filing separate application for condonation
          of delay while seeking restoration of ex-parte decree – Not
          mandatory:
          Held: Requiring a party to mandatorily file an application for
          condonation of delay u/s.5 of the Limitation Act, to seek restoration
          of ex-parte decree under Or.IX R.13 and Section 151 CPC, is a
          hyper technical view – Endorsing such a view would effectively
          mean ignoring the purpose of judicial procedure – The procedure
          cannot stand in the way of achieving just and fair outcome. [Para 12]

          A Party cannot suffer due to negligent or fault committed by
          the Counsel:
          Held: In the present case, the Appellant was not made aware of
          the ex-parte decree by his previous counsel – It is only after the
          appointment of the new counsel, the appellant got to know about
          the ex- parte decree – A party cannot suffer due to negligent or
          fault committed by their counsel. [Paras 9, 10]

                                   Case Law Cited
          Rafiq v. Manshilal [1981] 3 SCR 509 : [1981] 2 SCC 788; Bhagmal
          and Ors. v. Kunwar Lal and Others [2010] 8 SCR 1104 : [2010]
          12 SCC 159 – relied on.



*Author
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                               List of Acts
     Code of Civil Procedure, 1908; Limitation Act, 1963.

                            List of Keywords
     Condonation of delay; Restoration of ex-parte decree.

                           Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14830 of 2024
     From the Judgment and Order dated 24.05.2022 of the High Court
     of Judicature at Allahabad in WC No. 18990 of 2004

                        Appearances for Parties
     Nikhil Jain, Ms. Divya Jain, Gagan Kumar, Ms. Maheen Khan,
     Advs. for the Appellant.
     Krishna Ballabh Thakur, Adv. for the Respondents.

               Judgment / Order of the Supreme Court

                               Judgment

     Vikram Nath, J.

1.   Leave granted.
2.   This appeal assails the final judgement and order passed by
     Allahabad High Court in Writ Petition No.18990/2024 on 24.05.2022
     whereby the High Court dismissed the Writ Petition and upheld the
     order of the District Judge, Etah in Civil Revision No.53 of 2000.
     The District Court, Etah (“Revisional Court”) had allowed the Civil
     Revision filed by Respondent Prithvi Raj Singh under section 115 of
     Civil Procedure Code (“CPC”) against the order dated 29.04.2000
     passed by Additional Civil Judge (Junior Division) Kasganj (“Trial
     Court”) in Civil Miscellaneous Case No.33/1994. The Trial Court
     thereby had allowed the restoration application under Order IX Rule
     13 and section 151 of CPC filed by the Appellant Dwarika Prasad.
     The High Court has effectively dismissed the restoration application,
     confirming the ex parte decree dated 11.04.1994 passed in favor
     of Respondent.
[2024] 12 S.C.R.                                                       2077

            Dwarika Prasad (D) Thr. LRs. v. Prithvi Raj Singh


3.   The facts leading to the present appeal are stated below:
     3.1. Respondent-Plaintiff Prithviraj Singh instituted a civil suit
          registered as O.S. No.81 of 1988 seeking declaration of a sale
          deed as null and void on the ground of fraud played by the
          Appellant-defendant. Plaintiff averred that his grandfather Shri
          Guljari Lal was a bhumidhar with transferable rights of agricultural
          plot No. 315 area 0.66 Hectare, situated at Itwarpur, Pargana-
          Sahawar, District Etah and also of agricultural plot No.141 area
          0.34 Hectare situated at Village Bodha Nagria. In the name
          of providing treatment, Appellant-defendant Dwarika Prasad
          took the grandfather of plaintiff to Kasganj. On 16.01.1979 the
          appellant got a sale deed executed by his grandfather by way
          of fraud in his favour.
     3.2. The Court of First Additional Munsif, Kasganj, Etah decreed
          the suit ex parte by order dated 11.04.1994 on account of
          non-appearance of defendant and declared the sale deed in
          question to be void and unenforceable.
     3.3. The Appellant-defendant filed restoration application under
          Order IX Rule 13 and Section 151 of CPC on 31.10.1994. He
          stated that he was uneducated, naïve and old aged person
          unable to understand Court proceedings; he had put full faith
          in his previous counsel Shri Ramgopal Singh. However, on
          26.10.1994 the Respondent and his brothers publicly said to
          the Appellant that they have got the sale deed cancelled and
          have also got the name of the Appellant removed. As suspicion
          arose in the Appellant’s mind, he appointed Shri Ashok Kumar
          Verma as his counsel who inspected the file in the Revenue
          Court, Kasganj. The Appellant was informed about the ex
          parte decree, on 27.10.1994. The Counsel for the Appellant
          found copy of the ex parte decree the next day on 28.10.1994.
          Accordingly, on 31.10.1994 the Appellant filed the restoration
          application. The Appellant stated in the application that his
          previous counsel Shri Ramgopal Singh played fraud over him
          as he conspired with Respondent.
4.   The Trial Court allowed the restoration application and set aside
     the ex parte decree by order dated 29.04.2000. It found that the
     Appellant is illiterate and he has put thumb impressions wherever
     his counsel asked him to put. He was kept unaware of the legal
     proceedings by the previous counsel. Only after the revenue court
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     rejected the proceedings initiated by the Appellant for mutation, the
     new counsel was appointed. As the new counsel came to know about
     the ex parte decree, the restoration application has been filed. The
     Trial Court thus held that the Appellant cannot suffer due to errors
     of his counsel and it found it justifiable to provide full opportunity of
     hearing to the Appellant.
5.   Thereafter on 10.05.2000, the Respondent filed Revision (Civil
     Revision No.51 of 2000) under section 115 of CPC against the order
     of the Trial Court dated 29.04.2000. Respondent claimed that the
     restoration application is time barred and the Appellant had knowledge
     of ex parte decree since beginning. The Additional District Judge at
     Etah allowed the Revision, holding that the Appellant did not move the
     application under section 5 of the Limitation Act, which is a mandatory
     requirement when the application under Order IX Rule 13 of CPC is
     filed after a considerable delay and such delay requires explanation.
     Thus, the District Court, by order dated 17.02.2004, held that the order
     of the Trial Court was in violation of mandatory provisions of law.
6.   Aggrieved, the Appellant filed Writ Petition being Civil Miscellaneous
     Writ Petition No.18990 of 2004 against the order of the District Judge
     dated 17.02.2004. The Appellant pleaded that the District Court
     has taken a hyper technical approach in dismissing the restoration.
     Further, he had clearly submitted in the restoration application that he
     came to know about the ex parte decree on 28.10.1994 and without
     further delay he filed restoration application on 31.10.1994. Thus,
     from the date of knowledge, the limitation for filing the application
     will start. There was no requirement of filing a separate application
     for condonation of delay as the restoration application itself was not
     time barred.
7.   The High Court by the impugned order dated 24.05.2022, dismissed
     the Writ petition filed by the Appellant. The High Court has held that
     the limitation for filing application under Order IX Rule 13 CPC is
     30 days and it starts running from the date of the decree. As the ex
     parte decree was passed on 11.04.1994, the limitation for filing the
     restoration application expired on 11.05.1994. However, the application
     was filed by the Appellant on 31.10.1994, which is about five months
     after expiry of the limitation. Since the application was filed beyond
     time, it must be accompanied with an application under section 5
     of the Limitation Act praying for condonation of delay. As no such
     application was filed by the Appellant, there was no proper application
[2024] 12 S.C.R.                                                             2079

               Dwarika Prasad (D) Thr. LRs. v. Prithvi Raj Singh


      under Order IX Rule 13 of CPC in the eye of law. Thus, the High Court
      held that the Addl. District Judge was correct in allowing the Revision.
8.    The Appellants preferred the Special Leave to Appeal before this
      Court against the order of the High Court. This Court has issued
      notice and granted six weeks’ time to file the counter affidavit on
      20.07.2022. The Respondent has not filed the counter affidavit till
      date. The counsel for Respondent had put in appearance, way back
      in October 2022. He was not present on multiple dates including the
      last date, when this matter was heard on 09.12.2024.
9.    We have heard learned counsel for the appellant and perused
      the record. We are of the opinion that the High Court has erred in
      upholding the order of the Additional District Judge. The Trial Court
      had rightly allowed the restoration application filed by the Appellant
      under Order IX Rule 13 of CPC. It is well settled that Courts should
      not shut out cases on mere technicalities but rather afford opportunity
      to both sides and thrash out the matter on merits. Further, we
      cannot let the party suffer due to negligent or fault committed by
      their counsel. This principle has been enunciated by this court in
      the case of Rafiq v. Munshilal,1 quoted as follows:
             “3. The disturbing feature of the case is that under our
             present adversary legal system where the parties generally
             appear through their advocates, the obligation of the
             parties is to select his advocate, brief him, pay the fees
             demanded by him and then trust the learned Advocate to
             do the rest of the things. The party may be a villager or may
             belong to a rural area and may have no knowledge of the
             court’s procedure. After engaging a lawyer, the party may
             remain supremely confident that the lawyer will look after
             his interest. At the time of the hearing of the appeal, the
             personal appearance of the party is not only not required but
             hardly useful. Therefore, the party having done everything
             in his power to effectively participate in the proceedings can
             rest assured that he has neither to go to the High Court
             to inquire as to what is happening in the High Court with
             regard to his appeal nor is he to act as a watchdog of the
             advocate that the latter appears in the matter when it is


1    (1981) 2 SCC 788
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            listed. It is no part of his job. Mr A.K. Sanghi stated that
            a practice has grown up in the High Court of Allahabad
            amongst the lawyers that they remain absent when they
            do not like a particular Bench. Maybe, we do not know, he
            is better informed in this matter. Ignorance in this behalf
            is our bliss. Even if we do not put our seal of imprimatur
            on the alleged practice by dismissing this matter which
            may discourage such a tendency, would it not bring justice
            delivery system into disrepute. What is the fault of the party
            who having done everything in his power expected of him
            would suffer because of the default of his advocate. If we
            reject this appeal, as Mr A.K. Sanghi invited us to do, the
            only one who would suffer would not be the lawyer who did
            not appear but the party whose interest he represented.
            The problem that agitates us is whether it is proper that
            the party should suffer for the inaction, deliberate omission,
            or misdemeanour of his agent. The answer obviously is in
            the negative. Maybe that the learned Advocate absented
            himself deliberately or intentionally. We have no material
            for ascertaining that aspect of the matter. We say nothing
            more on that aspect of the matter. However, we cannot
            be a party to an innocent party suffering injustice merely
            because his chosen advocate defaulted. Therefore, we
            allow this appeal, set aside the order of the High Court both
            dismissing the appeal and refusing to recall that order…..”
10. In the present case, the appellant has trusted his counsel to manage
    the suit proceedings. However, he was not made aware of the ex-
    parte decree by his previous counsel. It is only after the appointment
    of the new counsel, the appellant got to know about the ex-parte
    decree. Therefore, the Additional Sessions Judge ought not to have
    exercised the revisional jurisdiction in interfering with the order of the
    Trial Court where it had exercised its discretion in setting aside the
    ex-parte decree for justifiable reasons accepting the reasons given
    by the defendant-appellant.
11. The Appellant has relied upon the following judgments in support of
    his submissions. In Bhagmal and Ors Vs. Kunwar Lal and Others 2
    this Court held as follows:


2   (2010) 12 SCC 159
[2024] 12 S.C.R.                                                         2081

            Dwarika Prasad (D) Thr. LRs. v. Prithvi Raj Singh


          “12. It is to be seen here that the question of delay was
               completely interlinked with the merits of the matter.
               The appellant-defendants had clearly pleaded that
               they did not earlier come to the court on account
               of the fact that they did not know about the order
               passed by the court proceeding ex parte and also
               the ex parte decree which was passed. It was further
               clearly pleaded that they came to know about the
               decree when they were served with the execution
               notice. This was nothing, but a justification made
               by the appellant-defendants for making Order 9
               Rule 13 application at the time when it was actually
               made. This was also a valid explanation of the delay.
               The question of filing Order 9 Rule 13 application
               was, in our opinion, rightly considered by the
               appellate court on merits and the appellate court
               was absolutely right in coming to the conclusion that
               the appellant-defendants were fully justified in filing
               the application under Order 9 Rule 13 CPC at the
               time when they actually filed it and the delay in filing
               the application was also fully explained on account
               of the fact that they never knew about the decree
               and the orders starting the ex parte proceedings
               against them. If this was so, the Court had actually
               considered the reasons for the delay also. Under such
               circumstances, the High Court should not have taken
               the hypertechnical view that no separate application
               was filed under Section 5.
          13. The application under Order 9 Rule 13 CPC itself had
              all the ingredients of the application for condonation
              of delay in making that application. Procedure is after
              all handmaid of justice.”
12. From the above cases, it is clear that there was no need to file a
    separate application for condonation of delay in the present case
    as well. The High Court has erred in taking a hyper technical view
    and concluding that there was violation of mandatory provision of
    law. Endorsing such a view would effectively mean ignoring the
    purpose of judicial procedure. The procedure cannot stand in the
    way of achieving just and fair outcome. In the present case, the
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     Appellant acted bona fide and diligently. His conduct does not violate
     any rule of law.
13. In view of the above discussion, we allow this appeal, set aside the
    impugned order dated 24.05.2022 passed by High Court, and allow
    the writ petition and restore that of the Trial Court dated 29.04.2000.
    The Trial Court to proceed with O.S. No.81 of 1988 in accordance
    with law. As the suit is an old one, we further direct the Trial Court
    to expedite hearing of the suit and make an endeavour to decide
    the same within a year. It goes without saying that parties to the suit
    shall extend all cooperation in disposal of the suit.
14. There shall be no order(s) at to costs.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Prastut Mahesh Dalvi, Hony. Associate Editor
                                 (Verified by: Abhinav Mukerji, Sr. Adv.)