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Gitaben Vasubhai Patel v/s Kaushalkumar Bhanvarlal Shah

    R. Civil Revision Application No. 181 of 2020 With Civil Application (For Stay) No. 1 of 2021

    Decided On, 16 September 2021

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

    For the Applicant: Devdip Brahmbhatt (3490), Advocate. For the Opponents: Vaibhav N. Sheth (5337), Advocate.



Judgment Text

1. Leave to amend the prayer-clause so as to enable him to assail the impugned order dated 24.01.2020 is granted. Learned advocate for the applicant to carry out the amendment, forthwith.

2. Rule. Mr.Vaibhav N. Sheth, learned advocate waives service of notice of Rule for respondent No.1. Though served, none appears on behalf of defendant No.2.

3. In this Civil Revision application, which is filed under Section 115 of the Code of Civil Procedure, 1908 ("the Code" for short), the applicant has prayed that the impugned order dated 24.01.2020 passed by the learned 8th Additional Civil Judge, Ahmedabad (Rural) at Mirzapur, below Exh.1 in Civil Application for condonation of delay in Civil Misc. Application No.169 of 2019, which was filed for setting aside the ex-parte judgment and decree under Order IX Rule 13, be quashed and set aside.

3. Heard Mr.Devdip Brahmbhatt, learned advocate for the applicant and Mr.Vaibhav N. Sheth, learned advocate for respondent No.1.

4. Learned advocate for the applicant submits that the present applicant is original defendant No.2 in the suit and original applicant of Civil Application filed for condonation of delay whereas the present opponent No.1 is the original plaintiff. It is submitted that respondent No.1 herein filed Special Civil Suit No.267 of 2016 against the original owner - defendant No.1 and the present applicant - defendant No.2 for declaration and possession. It is submitted that summons of the said suit was served to the original defendants including the present applicant. The defendants engaged their advocates to defend such suit. However, advocate engaged by the present applicant - defendant No.2 did not remain present before the concerned Civil Court and, therefore, the concerned Civil Court passed ex-parte judgment and decree on 31.03.2018. The applicant was not aware about the said decree. However, when present respondent No.1 - original plaintiff filed Execution Petition No.37 of 2018 before the concerned Civil Court, summons was issued to the present applicant on 30.04.2019. The said summons was served to the applicant on 30.05.2019 and at that stage, the applicant came to know about the judgment and decree passed by the Civil Court in favour of respondent No.1 - original plaintiff. The applicant, therefore, applied for certified copy of the said judgment and decree and after receipt of the certified copy, immediately, the present applicant filed an application under Order IX Rule 13 of the Code for quashing and setting aside the ex-parte judgment and decree passed by the Civil Court in Special Civil Suit No.267 of 2016. It is submitted that there was a delay of 14 months in filing the said application and, therefore, the applicant filed separate application under Section 5 of the Limitation Act, 1963 ("the Act" for short) for condonation of delay. It is contended that the concerned Civil Court vide the impugned order dated 24.01.2020 passed below Exh.1 rejected the said application and, therefore, the present Revision Application is filed.

5. Learned advocate for the applicant, at the outset, submitted that the present Revision Application is maintainable against the rejection of the application filed under Section 5 of the Act. In support of the said contention, learned advocate has placed reliance upon the decision rendered by this Court in the case of Twenty First Century Wire Rods Limited v. Punjab Steel Rolling Mills (Baroda) Private Limited reported in (2009) 5 GLR 4124. Learned advocate for the applicant has referred the grounds stated by the applicant in the application filed under Section 5 of the Act before the concerned Civil Court and, thereafter, contended that the applicant has shown sufficient cause for not filing the application for quashing and setting aside the ex-parte judgment and decree. In spite of that, the concerned Civil Court has rejected the application filed under Section 5 of the Act. It is, therefore, urged that the impugned order be quashed and set aside and delay of 14 months in filing the application under Order IX Rule 13 for quashing and setting aside the ex-parte judgment and decree be condoned and, therefore, the direction be issued to the concerned Civil Court to decide the application filed by the applicant on its own merits.

6. On other hand, Mr.Vaibhav N. Sheth, learned advocate for respondent No.1, has contended that the present Revision Application is not maintainable and the applicant has to file First Appeal or Misc. Civil Appeal before the concerned Civil Court against the impugned order passed by the Civil Court. It is further submitted that the applicant has failed to point out sufficient cause for not filing the application under Order IX Rule 13 of the Code for quashing and setting aside the ex-parte judgment and decree and, therefore, the Civil Court has rightly dismissed the application for condonation of delay. It is, therefore, urged that this Revision Application may not be entertained.

7. I have considered the submissions canvassed by the learned advocates appearing for the parties. I have also perused the material placed on record. At the outset, it is required to be noted that in the decision rendered in the case of Twenty First Century Wire Rods Limited v. Punjab Steel Rolling Mills (Baroda) Private Limited (supra), this Court has observed in Paragraphs-5 to 7 as under:

"5. At the outset, it is required to be noted that the present Appeal from Order has been preferred under Order XLIII Rule 1(d) of the Code of Civil Procedure challenging the order dated 20th June,2009 passed by learned 7th Additional Senior Civil Judge, Vadodara below Exh-1 dismissing Misc.Civil Application No.116 of 2008 filed by the appellant interalia praying to condone the delay that has been caused in preferring the application under Order IX Rule 13 of the Code of Civil Procedure. It is required to be noted that the present Appeal from Order as such not an Appeal from Order against the order passed by the learned Trial Court below application under Order IX Rule 13 of the Code of Civil Procedure i.e. dismissing the application under Order IX Rule 13 of the Code of Civil Procedure to set aside an ex-parte decree. Considering Order XLIII Rule 1(d) of the Code of Civil Procedure, Appeal from Order is provided against the order rejecting an application preferred under Order IX Rule 13 of the Code of Civil Procedure to set aside a ex- parte decree. Order XLIII Rule 1(d) of Code of Civil Procedure does not provide to prefer an Appeal from Order against the order rejecting the application to condone the delay in preferring the application under Order IX Rule 13 of Code of Civil Procedure to set aside the ex-parte decree. Therefore, the Appeal from order under Order XLIII Rule 1(d) of the Code of Civil Procedure against the order passed in application not condoning the delay in preferring an application under Order IX Rule 13 of Code of Civil Procedure, is not maintainable.

6. So far as decision of Chhattisgarh High Court relied upon by learned advocate appearing on behalf of the appellant in the case of Laxmi Prasad (supra) is concerned, on facts, the said decision is not of any assistance to the appellant. In the case before Chhattisgarh High Court, Appeal from Order was preferred under Order XLIII Rule 1(d) of the Code of Civil Procedure challenging the order of dismissal of an application for setting aside an ex-parte decree following rejection of application under Section 5 of the Limitation Act. Therefore, it appears that there was an order passed by the Trial Court dismissing the application for setting aside an ex-parte decree following rejection of application under Section 5 of the Limitation Act. Therefore, on facts of the present case, such decision is not of assistance to the appellant. This Court has its own doubt Whether on rejection of application under Section 5 of the Limitation Act and not condoning the delay in preferring the application for setting aside the ex-parte decree under Order XLIII Rule 1(d) of the Code of Civil Procedure of that Whether any further order dismissing application to set aside the ex-parte decree can be passed or not. As such this Court is of the opinion that once delay is not condoned in preferring an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside ex-parte decree, no further order is required to be passed in the application for setting aside an ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure.

7. At this stage, the decision of Full Bench of Calcutta High Court in the case of Mamuda Khateen and others v. Beniyan Bibi and others reported in AIR 1976 Calcutta 415 is required to be referred to. The Full Bench of Calcutta High Court has taken a view that order refusing to condone the delay under Section 5 of the Limitation Act is neither a decree nor an appealable order. However, the said order is revisable."

8. Thus, from the aforesaid observations made by this Court, the present Revision Application is maintainable.

9. It is a specific case of the applicant - defendant No.2 that she has engaged advocate before the concerned Civil Court for defending the suit filed by the original plaintiff. However, the said advocate did not remain present before the concerned Civil Court and, therefore, ex-parte judgment and decree came to be passed against the present applicant and another defendant. The applicant was not aware about the passing of the ex-parte judgment and decree. She came to know only when summons of execution petition filed by the original plaintiff was served to her on 30.05.2019. Therefore, she immediately filed an application for getting certified copy of the judgment and decree. The same was received on 25.06.2019 and, thereafter, immediately, the application under Order IX Rule 13 for quashing and setting aside the ex-parte judgment and decree was filed by the applicant before the concerned Civil Court. However, there was a delay of 14 months in filing the said application and, therefore, separate application under Section 5 of the Act was also filed for condonation of delay. This Court is of the view that the applicant has shown sufficient cause

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for not filing the application for quashing and set aside the ex-parte judgment and decree. In spite of that, the concerned Civil Court has rejected the said application on the ground that the applicant has failed to point out sufficient cause. This Court is of the view that the error is committed by the Civil Court while rejecting the application filed under Section 5 of the Act by the applicant when sufficient cause is shown by her. 10. Thus, in the facts of the present case, the impugned order dated 24.01.2020 passed by the learned 8th Additional Civil Judge, Ahmedabad (Rural) at Mirzapur, below Exh.1 in Civil Application for condonation of delay in Civil Misc. Application No.169 of 2019 is quashed and set aside. The delay of 14 months in filing the application under Order IX Rule 13 of the Code is condoned. The concerned Civil Court is directed to decide the application filed under Order IX Rule 13 of the Code for quashing and setting aside the ex-parte judgment and decree dated 31.03.2018 on its own merits. Rule is made absolute accordingly. Consequently, Civil Application does not survive and is disposed of, as such.
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