SHANTI DEVI Vs. RAM LAL

JUDGEMENT

(1.) IN a suit filed by the respondent -plaintiff against the appellants herein the learned District Judge, Udhampur granted an ex - parte decree on April 4, 1983 for ejectment of the appellants from a shop. Appellants, who were defendants in the case moved an application under O9R 13 C P C. for setting aside the ex -parte decree on January 27, 1984. Learned District Judge rejected the application on the ground that the appellants had not filed a separate application under sec. 5 of the Limitation Act for condonation of delay - Aggrieved by that order appellants have come up in appeal before this court.

(2.) I have heard the learned counsel for the parties and perused the record. Appellants herein filed an application under O 9 Rule 13 C. P. C. for setting aside ex -parte decree on January 27, 198

(3.) GIVING reasons in their application for their absence from the court and in the end they submitted that they were prevented by sufficient cause from appearing before the Court. They also led evidence in the case. Learned District Judge has rejected their application simply on the ground that application under sec. 5 of the Limitation Act was required to be filed by them seeking condonation of delay from 5 -5 -1983 to 27 -1 -1984 which had not been done. He did not discuss the evidence nor gave any reason for coming to conclusion. The only point which requires consideration in this case is whether a formal application under sec. 5 of the Limitation Act is a pre -requisite when application for setting aside ex -parte decree is filed Admittedly in the present case application filed by the appellants was time barred. The contention of learned counsel appearing for the appellants is that an oral prayer for condonation of delay is sufficient but the appellants in their application under O. 9. R. 13 C.P.C clearly prayed for such condonation and they also led evidence in this regard. The grounds on which an ex -parte decree can be set aside are enumerated in O 9 R 13 CPC and those grounds are : where summons have not been served or where sufficient cause is shown. When an application is filed beyond the period of limitation there ought to be an order of the court condoning delay for one reason or the other and no court can entertain and dispose of such application when the same is presented beyond period of limitation. It can assume jurisdiction to dispose of the matter only after condoning delay. The powers to condone delay can be exercised if the applicant satisfies the court that he had sufficient cause for not filing the application within the period prescribed. In this regard the court can be satisfied even from affidavits or documents on the record. It is not at all necessary in law that a formal application must be filed. The Division Bench of Allahbad High Court in AIR 1936 Allahbad page 666 has held that the Court dismissing an appeal as time barred merely on ground that the appellant has not made a formal application for extension of time under sec. 5 of the Limitation Act errs in exercising its discretion in the matter. In AIR 1979 Delhi 26, Mrs. Nirmala Choudhary Vs. Bishenshar Lal, it has been held that it does not even necessarily imply in Law that power of the court to condone delay is circumscribed by an application being filed and the powers of the court are not necessarily dependent on a formal application being made by the appellant. In this case it has been held further that if such an application is made well and good but if it is not made and only an oral prayer is made for condonation of delay the court is not powerless, if there is material on the record to show the facts constituting sufficient cause, for condonation of delay. The learned District Judge has not considered the material placed by the appellants herein on record for condonation of delay and he erred in holding that without making a formal application for condonation of delay, the application which was time barred could not be considered. He ought to have taken into consideration the facts brought on record by the appellants herein in order to come to the conclusion whether sufficient cause has been shown for condoning delay. As such the appeal is accepted and the order impugned set aside. The case is remanded to the Trial Court for hearing the parties afresh and deciding the same in the light of the aforesaid observations. Learned counsel for the parties shall cause the appearance of their parties before the Trial Court on April 29, 1988. Trial Court shall expedite the disposal of the case.