Allowed

Swagat (a unit of M/s. Bajrang Textiles Pvt.Ltd.,) v. Hotel Parklane Pvt. Ltd., a Company duly incorporated

Telangana HC10 Oct 2014CRP/3788/2013

Case brief

AI extract

What is this about?

In a revision petition, the High Court allowed the setting aside of a lower court order that rejected an application to set aside a default decree. The Court held that Order IX Rule 7 CPC applications are not subject to the 30-day limitation period of Article 123, and the dismissal of a concurrent condonation application did not bar relief here.

What did the court decide?

The order under revision is set aside; I.A.No.82 of 2012 is allowed; the default order dated 01.07.2010 is set aside; the petitioner is permitted to contest the suit.

Swagat (a unit of M/s. Bajrang Textiles… — Civil Procedure and Limitation | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

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C.R.P.No.3788 of 2013

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ORDER:

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The 1^st respondent filed O.S.No.738 of 2009 against the 2^nd respondent and the petitioner in the Court of Additional Rent Controller-cum-XVIII Junior Civil Judge, Secunderabad, for the relief of mandatory injunction for removal of an air conditioner in the common area. The petitioner i.e. the 2^nd defendant, entered appearance in the suit on receipt of summons. However, he was set ex parte, on 01.07.2010. He filed I.A.No.82 of 2012 with a prayer to set aside the order, dated 01.07.2010. The application was contested by the 1^st respondent. The trial Court dismissed the I.A. through order, dated 17.04.2013. The reason mentioned therein was that the petitioner filed I.A.No.44 of 2012 under Section 5 of the Limitation Act for condonation of delay of 550 days in filing the application under Order IX Rule 7 C.P.C., and since I.A.No.44 of 2012 was dismissed, the same result must ensue in I.A.No.82 of 2012 also. The said order is challenged in this revision.

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Heard Sri K.Sai Rama Murthy, learned counsel for the petitioner, and Sri T.Srikanth Reddy, learned counsel for the 1^st respondent.

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An inadvertent mistake committed by the counsel for the petitioner in filing an application under Section 5 of the Limitation Act for condonation of delay in filing an application under Order IX Rule 7 C.P.C., resulted in dismissal of the second application itself. He seems to have reeled under the impression that just as an application under Order IX Rule 13 C.P.C. has to be filed within 30 days, as stipulated under Article 123 of Schedule to Limitation Act, an application under Order IX Rule 7 C.P.C. also must be filed within that time. Obviously, neither the C.P.C., nor the Limitation Act, have

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stipulated any time for filing of such an application.

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The delay mentioned in I.A.No.44 of 2012 was 550 days. Neither the trial Court, nor the parties to the proceedings, verified as to whether such an application was necessary at all. The application was dismissed. Even at the stage of considering the application filed under Order IX Rule 7 C.P.C., the trial Court reeled under the impression that the limitation applies to applications of that nature. When no time, as such, is stipulated for filing of applications of this nature, it does not make any difference whether such an application is filed or dismissed. This Court is of the view that the petitioner deserves to be given an opportunity to contest the suit.

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The C.R.P. is accordingly allowed and the order under revision is set aside. As a result, I.A.No.82 of 2012 shall stand allowed and the order, dated 01.07.2010, is set aside, and the petitioner is permitted to contest the suit. The trial Court shall endeavour to dispose of the suit as early as possible. There shall be no order as to costs.

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The miscellaneous petitions filed in this C.R.P. shall also stand disposed of.

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____________________ L.NARASIMHA REDDY, J.

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Dated:10.10.2014

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

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C.R.P.No.3788 of 2014

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Date:10.10.2014

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Swagat (a unit of M/s. Bajrang Textiles Pvt.Ltd.,) v. Hotel Parklane Pvt. Ltd., a Company duly incorporated

Case brief

What is this about?

What did the court decide?

Swagat (a unit of M/s. Bajrang Textiles Pvt.Ltd.,) v. Hotel Parklane Pvt. Ltd., a Company duly incorporated

Case brief

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What did the court decide?

What the court decided

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