Messers Anil Sugar Industries Thru Partner and 2 Ors. Vs Additional Distt. Judge Lakhimpur Kheri and 9 Ors.

Neutral Citation No. - 2024:AHC-LKO:73568

Court No. - 7

Case :- MATTERS UNDER ARTICLE 227 No. - 2030 of 2004

Petitioner :- Messers Anil Sugar Industries Thru Partner And 2 Ors Respondent :- Additional Distt. Judge Lakhimpur Kheri And 9 Ors Counsel for Petitioner :- S.P. Shukla,Arti Ganguly,Hemant Kumar Mishra,Rajesh Shukla,Shishir Chandra,Vishnu Pratap Singh

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Counsel for Respondent :- C.S.C,Aman Kumar Shrivastav,Avadhesh Kumar,Divyanshu Tripathi,Samarth Saxena,U.C.Saxena

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Hon'ble Pankaj Bhatia,J.

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1 . Heard Sri Ravi Prakash Mehrotra, learned Senior Advocate assisted by Sri Hemant Kumar Mishra, Ms. Arti Ganguly and Abhishek Mishra, learned Advocates appearing on behalf of the petitioners as well as Sri Anurag Narayan, learned Counsel appearing on behalf of the respondents no.3/1 and 3/2 and Sri Samarth Saxena, learned Counsel appearing on behalf of the respondent no.10. The Vakalatnama filed by Sri Anurag Narayan is taken on record.

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2 . The present petition has been filed by the petitioners challenging an order dated 14.01.2004 whereby, the delay condonation application filed by the petitioner along with an application for recalling the ex-parte decree under Order IX Rule 13 of C.P.C. was dismissed.

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3 . The facts in brief are that the petitioner claimed that a registered agreement to sale was executed in its favour on 27.11.1978 and in pursuance to the registered agreement to sale, one of the owners executed a registered deed in its favour on 07.04.1979. Subsequently on 30.03.1982, a suit No.22 of 1982 came to be filed by the other co-owners for setting aside the sale deed and for delivery of possession. Incidentally, the person/ co-owners who had executed the sale deed was not impleaded as defendant, for which, an application was filed, which was rejected in the year 1985 and agaisnt the said order, a revision came to be allowed on 06.03.2002.

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4 . It is the case of the petitioner that on 26.05.1982, a written statement was filed by the petitioner in Suit No.22 of 1982 and thereafter, an order came to be passed directing to proceed ex-

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parte vide order dated 16.09.2003 and immediately after 3 days on 19.09.2003, an ex-parte decree came to be passed in favour of the plaintiff of the suit which is contained at page 52 of the paper book.

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5 . The facts reveal that on 07.11.2003, an application was filed for setting aside ex-parte decree under Order IX Rule 13 along with an application for condonation of delay under Section 5 of the Indian Limitation Act. By means of the impugned order, the trial court proceeded to reject the delay condonation application mainly on the ground that the petitioners were aware of the proceedings after the revision was allowed on 06.03.2002 and thus, the reasons disclosed in Section 5 application were disbelieved. There was a total delay of around 17 days in filing the application under Order IX Rule 13 of C.P.C. It also transpires from the perusal of the plaint and the statements made by the Counsel for the petitioners that in pursuance to the ex-parte decree, the possession was also taken from the petitioners and as of now, the petitioners are not in possession.

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6 . The Counsel for the petitioner in the said set of facts argues that a perusal of the ex-parte decree itself would reveal that the same is without application of mind, the same merely mentions that an affidavit has been filed and thereafter proceeds to decree the suit without even considering the pleadings or the evidence led in support of the pleadings, which according to the petitioner is wrong exercise of power. He further argues that there was a delay of only 17 days and it was specifically pleaded that the petitioner had shifted to Delhi and there counsel had expired and no information was available either with regard to the order dated 16.09.2003, directing the proceedings to be taken ex-parte or the subsequent date i.e. 19.09.2003 and thus in that event, the trial court has erred in rejecting the delay condonation application. He lastly argues that the delay of 17 days, ought to have been ignored as it is well settled that small delay should be interpreted liberally so as not to temper the rights of the parties

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7 . The Counsel for the respondents strongly opposed the writ petition by arguing that the writ petition has been filed by the petitioner no.1 which is affirmed without even filing a partnership deed and without impleading all the partners, which according to him is bad in law. He places reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Shyam Sundar Sarma vs Pannalal Jaiswal and others; MANU/SC/0944/2004 . The para 5 of the said judgments is quoted below:

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"In the trial court, the petition for setting aside the ex parte decree filed

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under Order IX Rule 13 of the Code came up for hearing. On behalf of the plaintiff, an objection was raised that in view of the filing of Title Appeal No. 157 of 1996 by the first defendant against the ex parte decree and in view of the explanation to Order IX Rule 13 of the Code, the application under Order IX Rule 13 of the Code could not be entertained by the court which had passed the ex parte decree. On behalf of the first defendant the appellant, it was contended that since the appeal filed by the appellant against the ex parte decree was dismissed for default as a consequence of the dismissal of the application for condoning the delay in filing that appeal being dismissed for default, the explanation created no bar to the entertaining of the petition under Order IX Rule 13 of the Code, especially in the context of the fact that the delay in filing that petition had already been condoned by the trial court and affirmed up to the High Court. But, the trial court took the view that since the appeal against the ex parte decree filed by the first defendant was not withdrawn, the petition under Order IX Rule 13 of the Code could not be entertained or relief granted to the first defendant in view of the explanation to Order IX Rule 13 of the Code. Thus, the petition for setting aside the ex parte decree was dismissed. The first defendant challenged that decision in an appeal under Order XLIII Rule 1 of the Code. The lower appellate court agreed with the conclusion of the trial court that the explanation to Order IX Rule 13 of the Code precluded the court from exercising its power to set aside the ex parte decree. Thus, the appeal was dismissed. The first defendant challenged the same in a proceeding before the High Court under Article 227 of the Constitution of India. The High Court held that the question posed for decision was covered by decisions of this Court referred to by it in its order and in the light of those decisions the order of the trial court as affirmed by the District Court, could not be interfered with. The High Court, thus, dismissed the petition filed by the first defendant under Article 227 of the Constitution of India. The first defendant has challenged this order of the High Court in this appeal."

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8 . He further places reliance on the judgment of the Bombay High Court rendered in the case of Shivaji Bansi Rathod vs Manoj Balabhau Jagtap and others, decided on 30.06.2023 in Second Appeal No.24 of 2023 . The para 14 of the said judgment is quoted below:

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"14. The consistent principle laid down by the Hon'ble Supreme Court from Raja Kulkarni (supra) till Shyam Sudar Sarma (supra) has been that if, an application for condonation of delay in filing the appeal is dismissed, then, such a dismissal amounts to a judgment in appeal.

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The Hon'ble Supreme Court has further held that the dismissal of an application for condonation of delay in filing the appeal amounts to the affirmation of the judgment of the trial court on merits. [Sheodan Singh (supra)] Thus, we hold that the order passed by the appellate court dismissing the application for condonation of delay in filing the appeal amounts to a decree of the appellate court, which is challengeable under Section 100 of CPC."

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9 . Considering the submissions made at the bar, what transpires is that a delay of 17 days has been rejected by the trial court by taking a very narrow and pedantic view. Considering the nature of the ex-parte decree and there being a very small delay of 17

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days, I am not inclined to agree with the order impugned in the present writ petition. Accordingly, the order dated 14.01.2004 is quashed.

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10 . The matter is remanded with a direction to the trial court to decide the application under Order IX Rule 13 of CPC on merit expeditiously preferably within a period of four months from the date of production of a certified copy of this order. It is clarified that the delay of 17 days has been condoned by this Court.

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11 . The interim order granted by this Court vide order dated 18.05.2004 shall continue till disposal of application under Order IX Rule 13 of C.P.C.

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12 . In view of the above terms, the writ petition is allowed .

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Order Date :- 7.11.2024 akverma

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Digitally signed by :- ASHOK KUMAR VERMA High Court of Judicature at Allahabad, Lucknow Bench

Messers Anil Sugar Industries Thru Partner and 2 Ors. v. Additional Distt. Judge Lakhimpur Kheri and 9 Ors.

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Messers Anil Sugar Industries Thru Partner and 2 Ors. v. Additional Distt. Judge Lakhimpur Kheri and 9 Ors.

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