Allowed

Zahir Ahmad v. IV Th Additional District Judge Faizabad

Allahabad HC5 Nov 2024A227/1001218/2009

Case brief

AI extract

What is this about?

This writ petition challenged the dismissal of an application to set aside an ex parte decree and the rejection of a delay condonation application. The High Court held that lower courts failed to address the petitioner's averment of lack of knowledge. The writ was allowed, setting aside the impugned orders and remanding the matter for a fresh hearing.

What did the court decide?

The writ petition was allowed. Impugned orders dated 7.2.2009 and 9.10.2006 were set aside, and the matter was remanded for a fresh hearing on the final facts.

Zahir Ahmad Vs IV Th Additional District… — Civil Procedure and Limitation | Allahabad HC (2024)

¶1

Neutral Citation No. - 2024:AHC-LKO:73014

¶2

Court No. - 7

¶3

Case :- MATTERS UNDER ARTICLE 227 No. - 1001218 of 2009

¶4

Petitioner :- Zahir Ahmad Respondent :- Iv Th Additional District Judge Faizabad Counsel for Petitioner :- Vimal Mishra,Akhter Abbas,Matri Datt Tripathi,Puttan Singh,Sri Jagdish Singh,Vimal Mishra,Vinod Kumar Pandey

¶5

Counsel for Respondent :- C.S.C.,Akhilesh Kumar Pandey,Manoj Kumar Misra,Q.M.Ashad Rafi,R.K. Srivastava,Rakesh Kumar Srivastava,Swadha Gupta

¶6

Hon'ble Pankaj Bhatia,J.

¶7

Heard learned counsel for the petitioner, Shri R.K.Srivastava, learned counsel for the respondent no.3 and Shri Akhilesh Kumar Pandey, learned counsel for the respondent no.4.

¶8

The present petition has been filed challenging the order dated 7.2.2009 passed by IVth Addl. District Judge, Faizabad whereby the appeal preferred being appeal no.73 of 2006 was dismissed. The petitioner also assailed the order dated 9.10.2006 passed by Civil Judge (J.D.), Sadar, Faizabad whereby the application under Order 9 Rule 13 C.P.C. was rejected for setting aside the ex parte judgement against the petitioner.

¶9

The facts in brief are that respondent no.3 filed a regular suit no.98 of 1974 seeking a decree of declaration of the ownership and possession of house in dispute on Nazul Plot No.1101 and 1102 against the petitioner and four other persons. The case of the petitioners and other defendants were siding out of District Faizabad and were never served with any notice. Subsequently, service was found made sufÏcient on the basis of publication and an ex parte decree came to be passed in favour of the plaintiff on 22.4.1976. Subsequently, when the petitioner came to know of the said ex parte decree, while inspecting the record of another case, an application was filed under Order 9 Rule 13 C.P.C. seeking setting aside of the ex parte order alongwith application for delay condonation. The said application was registered as Misc. Case No.73 of 2006. The plaintiff put in appearance and the defended the said application

¶10

by filing objections. The trial court vide its order dated 9.10.2006 dismissed the application under Order 9 Rule 13 by holding that no specific reason was given in the application under Section 5 of the Indian Limitation Act and as the ex parte decree has been passed after about 13 years, the application under Section 5 of the Limitation Act would not lie and as such the same was dismissed. On the same reasoning, the appellate court also dismissed the appeal filed by the petitioner.

¶11

Contention of learned counsel for the petitioner is that in the application filed under Order 9 Rule 13 C.P.C. as well as in the delay condonation application filed on 22.8.1989, it was specifically pleaded that the applicant had no knowledge of the ex parte decree. It was also stated that the exparte decree came to the knowledge of the plaintiff/petitioner for the first time on 13.6.1989 when the petitioner had gone to inspect the file relating to Nazul property and an application under Order 9 Rule 13 C.P.C. was filed within thirty days of the knowledge. He further argued that in terms of the limittaion prescribed under Clause 123 of Schedule of the Limitation Act, the limitation for filing the application is 30 days from the date of knowledge of the decree as such according to him, the application was filed within the limitation prescribed and could not have been dismissed.

¶12

He further argued that application under Section 5 of the Limitation Act, was filed by way of abundant caution although the same was not recalled. He further argued that specific averment that the petitioner had no knowledge of the ex parte decree was specifically pleaded and there was no material placed by the respondent (plaintiff to the suit) or in the orders passed by the trial court to demonstrate that the petitioner was aware of any exparte decree as such the trial court as well as the appellate court had held that no specific ground was taken in the application under Section 5 of the Limitation Act.

¶13

Learned counsel for the petitioner has lastly argued that even the ex parte decree which is on record is a non speaking order and it is well settled

¶14

that even if the proceedings are taken ex parte, the decree should be passed based upon material. He thus argued that the writ petition deserves to be allowed as the orders impugned are perverse and contrary to the material on record.

¶15

Learned counsel for the respondents on the other hand opposed the writ petition by arguing that the application under Section 5 of the Limitation Act was filed after thirty days of the ex parte decree without there being any explanation whatsoever and considering the inordinate delay in filing the application, the same has been rightly rejected by the court below and no interference is called for by this Court in exercise of its powers under Article 227 of the Constitution of India.

¶16

Considering the submissions made as recorded above, Order 9 Rule 13 of the C.P.C. ( As amended) empowers the court to recall and set aside the decree if the court is satisfied that the summons were not duly served or that the defendant was not appearing when the suit was called for hearing. The Allahabad Amendment to the said Order 9 Rule 13 C.P.C provides that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the court is satisfied that the defendant had no knowledge of the ex parte order, or but for his wilful conduct would have known of the date of hearing in sufÏcient time.

¶17

In the present case, specific averments of the petitioner that he was not aware of the ex parte decree has not been dealt with by any of the two courts below. The impugned orders are premised only on the delay in filing the application under Order 9 Rule 13 C.P.C. without dealing specific averments made by the petitioner in delay condonation application. I have no hesitation in holding that the impugned orders are not justified as a valid exercise of powers conferred upon the civil court under Order 9 Rule 13 C.P.C. and thus cannot be sustained.

¶18

Accordingly, the writ petition is allowed. Impugned Orders dated 7.2.2009 passed by IVth Addl. District Judge, Faizabad and order dated

¶19

9.10.2006 passed by Civil Judge (J.D.), Sadar, Faizabad are set aside. The matter is remanded to the Civil Judge concerned to decide the application of the petitioner filed under Order 9 Rule 13 C.P.C. in accordance with law, afresh, after affording opportunity of hearing to the parties.

¶20

Order Date :- 5.11.2024

¶21

Shukla

¶22

Digitally signed by :- ASHUTOSH KUMAR SHUKLA High Court of Judicature at Allahabad, Lucknow Bench

Zahir Ahmad v. IV Th Additional District Judge Faizabad

Case brief

What is this about?

What did the court decide?

Zahir Ahmad v. IV Th Additional District Judge Faizabad

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Prasidh Narayan vs Sri. Prashant Singh, Nayab Tehsildar, Jagdhishpur, Tehsil Musafirkhana, Amethi

Archana Soni @ Ramkali vs Raju Soni @ Chandra Kumar

Rohit Singh Vs State of U.P. Thru. Prin. Secy. Home U.P. Lko. and Another

A K Multimedia Thru. Proprietor Mohd. Akram Khan Vs State of U.P. Thru. Commissioner, State Good and Service Tax, Lko. and 2 Others

Satya Prakash Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

Karamraj Yadav Vs State of U.P. Thru. Prin. Secy. Home U.P. Lko.