IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Wri‘t petition (C) No.x->?5’Z)"l /2oo7 PETITIONERS :1. Smt. Sushmita Sharma W/o age also Satxendrgsharma §w %g\b¢ Satyendra Sharma, aged \ About 40 years, S/o. Kanhaiya Lal Sharma Both residents of: Upon the Urveshi Matching Centre & Readymade Store, Seepat Chowk Sarkanda Bilaspur, Tahsil and District Biiaspur (C.G.) VERSUS /R/a/mesh Kumar‘Yadav,aged 8 Bhagirathi Stamp Vendor Composite Building Bilaspur, R/o. rViiiage- Farhada, Post Gatora, Tahsil & District Biiaspur (C.G.) RESPONDENT 3 Years, WRIT PETITION UNDER ARTICLE 227 OF CONSTITUTION OF INDIA 1. PARTICULARS OF THE PETITIONER As per the cause titie above. 2. PARTICULARS OF THE RESPONDENTS As per the cause title above. vL°\ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinle Bench: Hon’ble Shri Justice Prashant Kumar Mishra g w.P. (C) Na. 3on2 of 2007 smt. Sushmita arma and another. Sh Versus Ramesh Kumar Yadav. ORDER Post for O? 04 -201 1 Sd//- Prashant Kumar Mishra Judge I wgg COQRT OF CHHATTISGABg QILASE’ QB SINGLE §§N9H : HON’BLE SHR! PRASHANT KUMAE MSHRA, J. WP: {Q1 &o. 3002 9f 2&7 PETITIONEBS Smt. Sushmita Sharma and another. Versus , RESPONDENT Ramesh Kumar Yadav. Shri Goutam Khetrapal. counsel for the petitioners. Shri M.K. Bhaduri, counsel for the respondent. , ORDER (01}.104/2011) This petition under Articke 227 of the Cohstitution of India has been preferred by the defendants of the suit challenging the order dated 25l01/2007 passed by the 6‘“ Additional District Judge, Bilaspur vide Annexure P/6 dismissing their appeal. which, in turn, was preferred to challenge the trial Court’s order dated 0401/2005 (Annexure P/5) rejecting their application under Order 9 Rule 13 of C.P.C. for setting aside the ex-parte decree dated 04/08/2003 (Annexure P/3). (2) Respondent/plaintiff Ramesh Kumar Yadav preferred a suit for reeovery of Rs.7,700l— together with interest @ 2%per month against the petitioners/defendants. in the said suit the petitioners were proceeded ex~parte and an ex-parte decree was passed on 04/08/2003. Petitioners preferred an application under Order 9 Ruie 13 of C.P.C. on 05/09/2003. j The said application was rejected by the trial Court on 04/01/2005 on imerits as well as on the ground of limitation. Petitioners appeal was l rejected on 25/01/2007. l [(3) in the application under 0rder 9 Ruie 13 of C.P.C. it was a imentioned that they had engaged a lawyer. however lawyer did not l i l l i appear nor the date of hearing was informed ta them and further that the defendant No. 1 was not we" from 01/07/2003 to 20/07/2003 and the defendant No. 2 was not we" from 19/07/2003 t0 05/08/2003. Thus, the petitioners submitted that the non-appearance is bonafide and the ex~parte judgment and decree deserves to be set-aside. Medical certificates Annexure PM was submitted along with theappiication: (4) Learned trial Court rejected the application on the ground that apart from their absence on 26/07/2003. the defendants were also absent on 04/07/2003 and that on the said two dates 04/07/2003 and 26/07/2003 one of the defendants could have appearedbecause from the medical certificate it would appear that both of defendants were not unweil simultaneously on any of those two dates it was also mentioned that the application is barred by limitation inasmuch as it has been submitted on 32nd day, whereas the limitation is 30 days and no application for condonation of delay has been made. The appellate Court has also scrutinized the medical certmcate and has recorded a finding that the ailment was not of such a nature that the defendants could not have appeared in the Court. lt has further been observed that the application was barred and no application for condonation of delay Was moved. (5) This Court had heard learned counsel for the parties at length)with‘ regard to the question that the application was barred by limitation, it is to be seen that the trial Court as well as the appellate Court has dealtwith l merits of the case and has thus impliedly condoned the delay, otherwise ‘ . lthe l Courts below should“ not have considered the merits of the lapplication, if it was barred by limitation and no application for l r l l l l l l lcondonation of delay was moved. Even otherwise the Hon'ble High Court (of Madhya Pradesh, in the matter of Suresh Kumar and others vs. Firm _)3 ._ K? Kurban Hussain Taiyab Ali and others reported in AIR 1996MP 151 has held that for condonation of delay under Section 5 of the Limitation Act. a formal application would not be required if the facts presented before the Court satisties the judicial conscience of the Court that the applicant before it was prevented by sufficient cause in bringing the proceedings well within limitation. it has further been held therein that if the Court is of the opinion that in absence of formal application the delay cannot be condoned then it is always the duty of the Court to give an opportunity to the applicant before it to move an application explaining the cause for delay and seek condonation under Section 5 of Limitation Act. (6) Dealing with an application under Order 9 Rule 13 of C.P.C., the Calcutta High Court, in the matter of Peerless Abasan Finance Ltd. vs. Madhabananda Mullick and others reported in AIR‘ 2003 NOC 49 (CAL) has held that for condonation of delay in moving an application under Order 9 Rule 13 of C.P.C.. formal application for condonation of delay is not required and an oral prayer for condonation of delay is sufticient. in the said matter the Calcutta High Court has relied on judgment of Hon'ble Supreme Court in the matter of LlNaik Mahabir Singh vs, Chief of Army Staff reported in 1990 (Supp) SCC 89 (l) in which the Hon'ble Supreme Court has condoned the delay in tiling the S.L.P. on the oral prayer of the petitioner’s counsel. a (7) In View of the law lard-down by the Madhya Pradesh High Court land Caicutta High Court relying on the Supreme Court Judgment and lpartlcularly In View of the fact that the Courts below have consrdered fmerrts of the application for condonation of delay rather than dismissing (the same in iimine for being barred by limitation, this Court is of the l l l considered opinion that the delay in filing the application under Order 9 Rule 13 of C.P.C. deserved to be condoned by the trial Court. (8) In the matter of Collector; Land Acquisition, Anantnag and another Vs. Mst. Katiii and others reported in (1987) 2 SCC 107 the Hon’bte Supreme Court haa held that Court should be liberal in condoning the delay in moving the application or appeal and should make an effort to decide the Iis on merits alter giving opportunity to the parties to prove their reepective cases. ln the present case the application for setting aside ex-parte decree was moved just after a month. It is mentioned in the application that they have engaged a lawyer who did not inform them about the dates of hearing meaning thereby that the defendants were relying on the counsel; however the learned counsel neither appeared in the Court nor informed them about the dates of hearing. Thus, at the first instance it is a case of negligence of the counsel rather than negligence of the defendants. Even otherwise while considering the bonafides of their non-appearance on 26/07/2003 learned trial Court has considered their absence on 04IO7/2003 to hold that since the defendants were absent on 04/07/2003 also, their prayer for setting-aside ex-parfe decree on the basis of their absence on 26/07/2003 cannot be accepted. lt is to be seen that while setting aside ex-parte decree Court is only required to examine the bonafides of their non-appearance on the date when the Court proceeded ex-parte and not on any previous dates. l l (9) ln the matter of G.P. Srivastava vs. R.K. Raizada and others l i reported in (2000) 3 SCC 54 the Hon'ble Supreme Court has held that l lsuffrcient cause for non-appearance refers to the date on which the iabsence was made a ground for proceeding ex-parte and the same V ,cannot l be stretched to cover circumstances occurring prior to that date. lt l -E./ has also been held in the said matter that narrow and technical approach of the Court leads to unnecessary prolonging of litigation and substantial justice can only be achieved if defendant is allowed the opportunity to prove his case within a reasonable time. (10) in the present case also the learned trial Court as well as the appellate Court has taken a narrow, technical and pedantic approach by dealing with the prayer for setting-aside the ex-parte decree. In the matter of G.P. Srivastava (supra) the Hon’ble Supreme Court has also held that even where defendant is found to be negligent, the other side may be compensated by cost. Thus, taking support from the law laid—down by the Hon‘ble Supreme Curt, this Court is of the opinion that the writ petition deserves to be and is hereby allowed. The ex-parte decree dated 04/08/2003 passed by the Court of lll Civil Judge Class — ll. Bilaspur in Civil Suit No. 29-Bi2001 is set-aside and the trial Court is directed to proceed to decide the suit on merits. The petitioners are directed to pay cost of Rs.1 ,0001- to the respondent/plaintiff. (1 1) Writ petition stands allowed in the above terms. Sd/l— Prashant Kumar Mishra Judge