High Court dismissed costs-free a Civil Revision Petition. The Court found no merit in challenging the trial court's decision to condone a 33-day delay in filing an application to set aside an order dismissing the原告 suit for default, distinguishing it from cases where a dismissed suit itself was restored.
No costs. Civil Revision Petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE N.V. RAMANA
C.R.P. No. 1076 of 2011
O r d e r:
This C.R.P. is directed against the order dated 21.01.2011, passed by the Additional Junior Civil Judge, Rajendranagar, Reddy District, allowing the application in I.A. No. 707 of 2008 in O.S. No. 7 of 2007, filed by the respondent, praying to condone the delay of 33 days in filing petition to the set aside the order dated 11.10.2007, passed in I.A. No. 3223 of 2007 for default, and restore the said I.A. to file.
The learned counsel for the petitioners submitted that in the absence of any affidavit filed by the counsel to explain as to why he could not attend the Court when the application in I.A. No. 3223 of 2007 filed by the respondent, to set aside the order dismissing the suit for default, came up for hearing, on 11.10.2007, the Court below committed an error in condoning the delay and setting aside the order dated 11.10.2007 and restoring the application in I.A. No. 3223 of 2007, to file, and more so when it amounted to setting aside and ex parte decree. In support of his argument that this Court, has no jurisdiction to set aside an ex parte decree, if the matter does not fall within the four corners of Order IX, Rule 3 CPC, placed reliance on the judgment of the apex Court in Parimal v. Veena[1] . He thus prayed that the order under revision be set aside and the C.R.P. be allowed.
Having heard the learned counsel for the petitioners and having perused the order under revision, I find no reason whatsoever to interfere therewith.
The present application, is filed to condone the delay of 33 days in filing application to set aside the order dated 11.10.2007, passed by the Court dismissing the application in I.A. No.3223 of 2007, for default. The said I.A. No. 3223 of 2007, admittedly, was filed by the respondent-plaintiff seeking to set aside the order dated 06.07.2007 passed by the Court dismissing the suit.
When I.A. No. 3223 of 2007, was taken up for hearing on 11.10.2007, it appears that there was no representation on behalf of the respondent-plaintiff, and therefore, the Court dismissed the I.A. for default. In the affidavit filed in support of the condone delay the petition, the reason assigned for non-appearance of the counsel to represent the case on 11.10.2007 is that he was held up in another
Court. As the non-appearance of the counsel was not intentional, the Court below in the interest of justice, felt it appropriate to condone the delay and restore the I.A. to file, and in the facts and circumstances of the case, it cannot be said that the Court below has committed an error in condoning the delay and restoring the I.A., to file.
Since by reason of the order under revision, the Court below did not set aside the order dated 06.07.2007 dismissing the suit, and merely condoned the delay and set aside the order dated 11.10.2007 passed in I.A. No. 3223 of 2007, filed to set aside the order dismissing the suit, reliance placed by the learned counsel for the petitioners on the judgment of the apex Court in Parimal v. Veena does not assist him in any manner, because that was a case, where the delay was condoned and the order passed dismissing the suit, was set aside and the suit restored to file.
For the foregoing reasons, I find no reason whatsoever to interfere with the order under revision in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India. There is no merit in the C.R.P., and the same is accordingly dismissed. No costs.
________________ N.V. RAMANA, J.
Dated: 20th April, 2011 KSR
[1] 2011 (2) SCALE 302
2 issues framed by the court
Whether the High Court should interfere with the trial court's order condoning a delay in filing an application to set aside an ex-parte dismissal.
Whether condoning delay in setting aside a dismissal for default contravenes the principles under Order IX Rule 3 CPC.
Colour shows how this judgement treated each authority
Parimal v. VeenaDistinguished¶10
2011 (2) SCALE 302
Petitioner
Respondent
N.V. RAMANA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
