RISALO Vs. SECOND A D J

JUDGEMENT

(1.) By means of present writ petition under Article 226 of the Constitution of India, petitioner Smt. Risalo challenges the order passed by II nd Additional District Judge, Ghaziabad dated 13th April, 1998, whereby the appeal filed by the petitioner against the order dated 24th January, 1998 has been dismissed. The order dated 24th January, 1998 was passed by the trial Court on the application moved by the petitioner in original suit no. 181 of 1989. It so happen that the suit no. 181 of 1989 is decreed ex-parte on 30th May, 1989. The petitioner filed application for recall of the order decreeing the suit no. 181 of 1989 by way of an application under Order IX Rule 13, read with Section 151 of the Code of Civil Procedure. On the pleadings of the parties, it appears that the petitioner filed a suit before Munsif concerned being suit no. 743 of 1992. In the aforesaid suit no. 743 of 1992, the defendant-contesting respondent in this petition filed written statement on 8th September, 1992 and it is only after filing of the written statement, the petitioner came to know on 8th September, 1992 that suit no. 181 of 1989 has been decreed ex-parte and the decree was also got executed ex-parte passed in suit no. 181 of 1989. The petitioner has explained that on coming to know of the ex-parte decree dated 30th May, 1989 on 8th September, 1992, the petitioner got the record inspected on 13th October, as 11th 12th and 13th September, 1992 were holidays and from 14th September, 1992 to 12th October, 1992, the Advocates of the judgeship were on strike and has filed the application on 5th November, 1992 wherein it has been explained that for th first time, as stated above, the petitioner came to know of the ex-parte decree, it was therefore prayed that the ex-parte decree may be set aside and the delay, if any, in filing the aforesaid application may be condoned.

(2.) The defendant-contesting respondent in this petition contested the statement made by petitioner and submitted that even on her own saying the petitioner has acquired knowledge of the ex-parte decree on 8th September, 1992 but she has not given any satisfactory explanation of not filing the application for setting aside the ex-parte decree up to 9th October, 1992 and even assuming that 12th October, 1992 was a holiday for the Court, she should have filed the said application on 13th October, 1992, whereas the application has been filed beyond time and explanation filed for the condonation of delay should not be accepted. The petitioner stated that on 19th October, 1992 she obtained the copy of Intkhab from the concerned Lekhpal and on 30th October, 1992 after the Courts were re-opened, she filed the application on 5th November, 1992. The trial Court found that the explanation is not sufficient for condonation of delay in filing the aforesaid application under Order IX Rule 13, read with Section 151 of Code of Civil Procedure, thus rejected the same vide its order dated 24th January, 1998. Aggrieved by the order passed by the trial Court dated 24th January, 1998, the petitioner filed appeal before the lower appellate authority, which vide judgment and order dated 13th April, 1998 dismissed the appeal and confirmed the order passed by the trial Court, thus this writ petition. Heard learned counsel appearing on behalf of the parties. Learned counsel appearing on behalf of the petitioner in support of his contention relied upon the law laid down by the Apex Court reported in AIR 1987 S.C., 1353 - Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, wherein the Apex Court in paragraph 3 has held, which reads as under:-

(3.) In view of above law laid down by the Apex Court in the case of Collector, Land Acquisition (supra), which has been followed by the Apex Court in the subsequent decisions in the case of G.P. Srivastava Vs. Shri R. K. Raizada & Ors. JT 2000 (2) SC, 569 and International Airports Authority of India Vs. M.L. Dalmia & Co. Ltd., particularly in view of the law laid down in the case of Collector, Land Acquisition (supra), in clause 4, 5 and 6, which read thus, in my opinion the present writ petition deserves to be allowed.