GAURI SHANKAR Vs. RAM SAHAY

JUDGEMENT

(1.) THIS appeal under Order XLIII, Rule 1(d) CPC has been filed against the order dt. 19.04.2010 passed by the Additional District Judge No. 1, Bhilwara camp Gangapur, whereby, the application filed by the appellant under Order IX, Rule 13 CPC was rejected. This appeal is time barred by 649 days and an application under Sec. 5 of the Limitation Act has been filed seeking condonation of delay in filing the appeal. In the said application, it has been contended that the ex -parte decree was passed by the trial Court on 13.07.2005, for which, information was not given to him nor the counsel informed him about the same. He came to know about the said ex -parte decree dt. 13.07.2005 on 23.03.2007 when in pursuance of the execution launched by the plaintiff the process server came to him. As the application under Order IX, Rule 13 CPC was barred by time, the application under Sec. 5 of the Limitation Act was also moved. It was then stated in the application that the said application under Order IX, Rule 13 CPC was dismissed by the trial Court on 19.04.2010. The counsel engaged by the appellant did not appear in the matter and another counsel appeared in the matter at the camp Court, who did not inform the appellant about the order dt. 19.04.2010 and even the counsel engaged by him also did not inform him about the said order. It is claimed that again when the execution proceedings were started and the process server of the executing Court visited the appellant, in the first week of February, 2012, he came to know about the dismissal of application under Order IX, Rule 13 CPC. Thereafter certified copies were obtained and counsel, was contacted at Jodhpur, who instructed him to bring certain more documents and record and after collecting the same the appeal was prepared and filed. Ultimately, it was claimed in the application that the delay in filing the appeal had occurred unintentionally and there is sufficient cause within the meaning of Section 5 of the Limitation Act for condonation of delay in filing the appeal. It was also submitted in the application that when technical/procedural irregularities and substantial justice are pitted out against each other, the cause of later has to be sustained and as the appellant has a very good case on merits, the same may not be thrown out for 'short' and unintentional delay in filing the appeal.

(2.) NOTICES of Section 5 of the Limitation Act were issued to the respondent -plaintiff.

(3.) IT was contended that the Court should decide the matter on merit by giving the expression 'sufficient cause', a pragmatic justice -oriented approach as held by the Hon'ble Supreme Court in the case of Union of India vs. Giani, reported at : AIR 2011 SCW 1388 and that litigant cannot be penalized for the default of an Advocate by relying on a judgment of this Court in the case of Narayan Lal Bagra & Anr. vs. Hanuman Sharma & Ors., reported at : 2008 (1) DNJ (Raj.) 344.