EEF’GRE’ ”YH E FiGi¥Fi§N‘3LE EEGH CGiiR'T 9? €HHAT‘FISGARH AT PETITIONER PLAINW m: P Vijay Prasad Chaudhary, aged about 42 years, S/o. Shri Nakul Saw, occupation ~ Teacher, R/o. viH. Dokra, Tah. Bagicha, Distt. Jashpur (CG) RESPONDENTS P DERE N D Emg VERSUS /1. Mamta, age 33 years, W/o. Birendra Prasad 8: D/o. Rajendra Prasad, occupation .— House-wife, R/o.Armavee, Distt. Gumla (Jharkhand) The State of Chhattisgarh, through Distt. Collector, Jashpur Nagar, Distt. Jashpur (CG) WRIT PETITION U/A 227 OF THE CONSTITUTION OF INDIA ‘.“J£IT P£¥IT§9§§ {22?}: ¥§. %}¥§£2§£§3 M HIGH cOURT OF cHHATTIsGARH BILA$PUR # Single Bench Hon’ble 8hr: Manmdta Mohan Shnvastava, J. ‘Nv -- ‘ WRET PETITION 12271 NO 37751200 PETiTlONER Vuay Prasad Chaudhary Versus RESPONDENTS Mamta and another ' Present': - Shri Arun Shukla, counsel for the pehhoner Shn Rushi Mahobia counsel for respondent No 1 r Shn S R J Jatsw t Panel Lawyer for the 3(atelrespondent No 2 GRAL ORDER (Passed'on 5‘“ of May, 2m 1) Thas petmon under Artucle 227 of the Conshtutlon of India has been med chailengmg the legahty and propriety 0f order dated 23/01/09 (Annexure Pl1) > passed by the learned Court below by which the application for condonatlon of e: delay in ’r‘rlmg the application for settmg aeide ex~parte decree has been allowed 2. Learned counsel for the petitioner submitted that the applicatlon for ‘ condonatvon of delay has been allowed Without due and prover consnderatlon of , the entire circumstances and ex~parte Judgment and decree wherem rt has been clearly held that respondent No 1 l defendant did not appear and refused to take notrce whereupon, the Court proceeded ex-parte and ex—parte decree was passed. Learned counsel for the petitioner further submitted that the grounds which have been stated in the applrcatron under Section 5 of the Limitation Act y are afterthought and do not make out a case for condonation of delay He submits that respondent no 1 had fuli notice and knowledge of the date on which ‘ Judgment decree was passed but thereafter he remained Indolent and neglrgent . ' and fled applroation for setting asrde the tudgment decree long after ex-parte judgment decree was passed He further submits that the Court below exceeded l; r V 1 its jurisdiction in allowing the appiication for condonation of‘deiay, even though respondent No.1 failed td place before the Court, any material fact to constitute l sufficient cause for condonation of delay. 3. On the other hand, learned counsel for respondent No.1 submitted that an” ex—parte judgment decree was passed on 20/2/01 against the respondent No.1. The respondent No.1 came to know about the said judgment decreefor the first I time on 2/3105. Thereafter, she approached her counsel, who sentrcertlfied copyx _, of judgment decree by the registered post, which was received on 25i6/05 and .4 thereafter, after making arrangement of necessary expenses for tiling the» application, on 1/7/05, the application for setting aside ex-parte decree has been med. He submits that the reasons which have been stated by learned Court below to come to the conclusion that the delay in filing application under Order 9 Rule 13 of CPC is bonatide, is based on material on record and cannot be said to be perverse. 4. Learned Statecounsei submits that as no relief has been prayed for against the State, the State is only a formal party. 5. A perusal of order dated 23/01l09 (Annexure P11) passed by the trial . Court shows that the learned Court below has taken into consideration what has been stated in the application under Section 5 of the Limitation Act that the respondent No.1 had no notice or knowledgeof ex-parte judgment decree and it was for the first time disclosed to respondent No.1 on 2/3/05 whereatter, steps were taken to obtain certmed copy, which was received on 25/6/05. The Court below has also taken into consideration that the counsel for the applicant had applied for grant of certified copy of ex—parte judgment and decree on 5/3/05 and the copy was received on 2/6/05. l !4$, A kgg 6. Taking into consideration the cause shown and the circumstances of the case, the Coun below has formed an opinion that the delay has been explained: _ and appears to be bonafide. T. In the opinion of this Court, the finding recorded by the Court below and r the orders on application for condonation of delay, does not suffer from any perversity or error apparent on the face of it nor any miscarriage of justice, so as 1r to warrant interference by this Court, in exercise of supervisory iurisdiction under a Article 227 of the Constitution of lndia. 8. Learned counsel for the petitioner is apprehending that the reasons which a , have been stated while allowing the application under Section 5 of the Limitation Act have the effect of nullifying the findings, which have been recorded by the trial Court in its judgment decree that the petitioner, even after service of notice, r ' failed to appear. The apprehension does not appear to be well founded. While allowing the application for condonation of delay in hling the application under Order 9 Rule 13 CPC, the Court below has only recorded that the delay in filing the appiication appears to be bonahde. Whether or not, the ex-parte judgment ‘ decree is liable to'be set aside on any sufficient cause shown by respondent No.1, is a matter for consideration by the concerned Court and that aspect is certainly not touched by the iearned Court below, whiie. allowing the application ‘ for condonation of delay vide impugned order dated 23H [09 (Annexure PI1). 9. With the aforesaid observations, the petition is dismissed. Sdl- Manindra Mohan Shrivastavaai Judge Deepli‘