CHANDRA PAL Vs. STATE OF U P

JUDGEMENT

(1.) Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 28.3.2012 passed by respondent no. 2 and order dated 6.6.2008 passed by respondent no. 3. Vide order dated 6.6.2008, the application of the respondent-defendant filed under Order 9 Rule 13 of Code of Civil Procedure for setting aside the exparte decree was allowed after condoning the delay and by the subsequent order, the revision filed by the petitioner which was numbered as Revision No. 443 of 2007-2008 has been dismissed.

(2.) Sri Santosh Kumar Pandey, learned counsel for the petitioner, while assailing the impugned orders, has submitted that there was no section 5 application along with application for setting aside the exparte decree. He has also submitted that the application was barred by time, therefore it should have been accompanied with an application for condonation of delay with supporting an affidavit explaining the reason why the application was not filed well within time. He further contends that both the courts below have erred in ignoring this aspect of the matter as admittedly there was no application for condonation of delay and a separate affidavit was filed which was not the part of Section 5 application, therefore the courts below have erred taking that into consideration for condoning the delay and setting aside the exparte decree. In his submissions, the summons were duly served and the respondents avoided to participate in the proceeding.

(3.) Refuting the submission of learned counsel for the petitioner, Sri Gaurav Sisodiya, learned counsel appearing for the respondent no. 4 submits that the delay have been condoned and the exparte decree has been set aside and now substantial justice have been done to the parties and this Court sitting under Article 226 of the Constitution of India should not enter in these controversy.