SUDESH Vs. ADDLL DISTT JUDGE

JUDGEMENT

(1.) VINEET Saran, J. Original suit No. 729 of 1995 was filed on 12-10-1995 by Respondent No. 3 Jamin Raja Khan against the petitioners for a decree of permanent injunction and cancellation of sale-deed dated 29-12-1994 passed in favour of the petitioners. An ex parte decree dated 1-5-1997 was passed by the trial Court decreeing the suit of the plaintiff. Then on 24-1-1998, the petitioners (defendants) filed an application under Order IX, Rule 13, CPC for setting aside the ex parte decree alongwith application under Section 5 of the Indian Limitation Act. The application for condonation of delay, as well as the application for setting aside the ex parte decree, were both rejected by the Civil Judge vide his order dated 8-3-2001. Misc. Appeal No. 25 of 2001 filed by the petitioners against the said order has also been dismissed by the Additional District Judge vide his order dated 16-5-2002. Aggrieved by the aforesaid orders, this writ petition has thus been filed with the prayer for quashing the orders dated 16-5- 2002 and 8-3-2001 passed by Respondent Nos. 1 and 2 respectively, as well as the ex parte Judgment and Decree dated 1-5-1997 passed by the Respondent No. 2.

(2.) I have heard Sri Chandra Kumar Rai on behalf of the petitioners and Sri M. A. Siddiqui on behalf of the contesting respondent No. 3 and have perused the record. Counter and rejoinder affidavits have been exchanged and with the consent of the learned Counsel for the parties, this writ petition is being disposed of at the admission stage itself.

(3.) AS regards the application for condonation of delay in filing the application for setting aside the ex parte decree, it may be observed that in case of ex parte decree, the limitation would begin from the date of knowledge of the passing of the ex parte decree, which in the present is 20-1-1998 and the application was filed within four days of the same. The Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji, AIR 1987 SC 1353, has held that "the Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by deposing of matters on 'merits'. " While laying down the guidelines for deciding such application, it was held that the Courts should adopt a liberal approach in the matter while dealing with application for condonation of delay.