Petitioner challenged restoration of his ex parte decree obtained against a defendant who died years before the decree. The court upheld the trial and revisional courts' orders condoning delay on costs and allowing the Order 9 Rule 13 application, dismissing the petition.
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Neutral Citation No. - 2024:AHC-LKO:19885
Court No. - 8
Case :- MATTERS UNDER ARTICLE 227 No. - 1113 of 2024 Petitioner :- Jul Kamar Ahmad Khan Alias Sabbu
Respondent :- Rizwan Rafi Khan And 3 Others
Counsel for Petitioner :- Archana Misra,Ram Bux Rawat
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioner.
By means of the instant petition, the petitioner assails the order dated 30.1.2024 passed by the Additional District Judge, Balrampur in Civil Revision Nos. 15 of 2023 and 16 of 2023. As a result of the said dismissal, the order dated 30.4.2022 passed by the Civil Judge, Senior Division, Balrampur in allowing the application under Order 9 Rule 13 CPC and restoring the Suit No. 82 of 2024 on its original number to be contested on merits has been upheld.
The submission of the learned counsel for the petitioner is that the defendants were very well aware of the pendency of the suit inasmuch as they had put in appearance and later they failed to contest, as a result, by means of order dated 10.5.2005, the proceedings were stayed ex parte against the defendants. It is also urged that on the very next day i.e., on 11.05.2005, the application for recall under Order 9 Rule 7 CPC was moved. However, they did not press the application as they absented themselves from the proceedings and thereafter, the ex-parte decree came to be passed on 20.02.2021.
It is further urged that the defendants had not moved an appropriate application even for condonation of delay and the court concerned has allowed the application under Order 9 Rule 13 CPC without considering the facts as well as the falsity
which was established by the petitioner in respect of sufficient cause which was stated by the defendants in their application under Order 9 Rule 13 CPC. In the aforesaid circumstances, the view adopted by the trial court and affirmed by the revisional court is not quite correct.
The Court has considered the aforesaid submissions and also perused the material available on record.
The facts which are undisputed, are that a suit bearing no. 82 of 2004 'Jul Kamar Ahmad Khan @ Sabbu vs. Rizwan Rafi Khan and others' was instituted. The said suit proceeded ex parte by means of order dated 10.5.2005 and the predecessor of the private respondents, Shri Rafiulla had moved an application for recall on 11.5.2005 but did not press the same as he absented and the suit came to be passed on 20.2.2021.
It is in the aforesaid backdrop that since Ramzan @ Bhulai had expired during pendency of the proceedings, the legal heirs moved an application under Order 9 Rule 13 of CPC seeking recall of the order dated 20.2.2021 on the ground that since Ramzan @ Bhulai had expired on 22.3.2012, his heirs were not aware of the aforesaid proceedings and accordingly from the date of knowledge, the application under Order 9 Rule 13 of CPC has been filed in terms of Article 123, as appended to the Limitation Act, 1963. This application has been allowed by the trial court by means of order dated 30.4.2022 on payment of cost of Rs. 500/-. This order was assailed by the petitioner in civil revision which also has been dismissed. One revision was preferred by the petitioner against the order by which the delay was condoned and the other was filed against allowing the application under Order 9 Rule 13 of CPC.
It is urged that once the original defendant of the suit was aware of the proceedings, it was not open for the legal heirs to have
moved the application without explaining the sufficient cause. In the aforesaid circumstances, it is prayed that the impugned orders deserve to be set aside.
The Court has heard the aforesaid submissions and also perused the material available on record.
It is not disputed by the learned counsel for the petitioner that Ramzan @ Bhulai expired in the year 2012 and no application was moved by the plaintiff-petitioner seeking to bring on record the heirs of the deceased Ramzan @ Bhulai. It is in the aforesaid circumstances that the trial court noticed that a decree has been passed against the dead person. There was sufficiency of cause for the legal heirs to have moved the application and therefore, it has condoned the delay on payment of cost of Rs. 500/- and also allowed the application under Order 9 Rule 13 of CPC. The aforesaid reasons have been affirmed by the revisional court.
This Court after considering the evidence which has been placed before the Court also finds that the decree dated 20.2.2021 was against the dead person and both the trial court as well as the lower revisional court have adopted a correct view which does not require any interference from the Court. Moreover, it is now well settled that as far as possible, the matter should be heard and decided on merits, rather than to shut out hearing on the ground of technicality. There is no denial of the fact that Ramzan @ Bhulai had expired and during the entire proceedings from 2012 till the date of decree dated 20.2.2021, no effort was made by the plaintiff-petitioner to bring on record the heirs of the deceased-defendant.
In view thereof, this Court does not find that there is any error in the impugned orders and it is, accordingly, dismissed .
Order Date :- 5.3.2024/Shravan
Digitally signed by :- SHRAVAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Should the Order 9 Rule 13 CPC application restoring the suit be allowed given the decree was passed against a defendant who had died in 2012?
Was the delay in filing the recall application by the deceased defendant's legal heirs sufficiently explained?
4 provisions across 3 enactments
Jul Kamar Ahmad Khan Alias Sabbu
Rizwan Rafi Khan
Jaspreet Singh
As recorded by the court registry
2 orders share this CNR
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