Om Prakash (Pal) & Anr. v. Bhagwanti Devi Since Deceased And 6 Others

This is plaintiffs' petition. The plaintiffs-petitioners instituted Original Suit No.305 of 2007 against the defendants-respondents claiming relief of permanent injunction in respect of plot No.268M measuring 0.632 hec. As the defendants did not appear before the trial Court, the suit was decreed ex parte on 09.02.2010.

An application under Order IX, Rule 13 C.P.C. along with an application for condonation of delay under Section 5 of Limitation Act was filed by the defendants-respondents on the ground that notices were never served and the plaintiffs had got the suit decreed ex parte in collusion with process server and the trial Court, without recording any finding as to service of notice, had decreed the suit. By the order impugned dated 2.8.2024, application filed for condonation of delay under Section 5 of Limitation Act has been allowed hence this writ petition.

Learned counsel for the petitioners submits that the application under Order IX Rule 13 C.P.C. along with Section 5 application has been filed after a lapse of 12 years and there stood no occasion for allowing Section 5 application. Reliance has been placed upon decision of Apex Court in case of Union of India & Anr. vs. JahangirByramji Jeejeebhoy (D) through his L.R. AIR 2024 SC 1884. He further contends that the trial Court had recorded findings as to service of notice upon the defendants as such the trial Court could not have condoned the delay.

I have heard learned counsel for the petitioners and perused the material on record.

From perusal of ex parte decree, it is clear that the trial Court has not recorded any finding as to date of service of summons/notice upon the defendants and had only recorded that the notices were served upon the defendants. The petitioners had brought on record the order dated 10.12.2009 by which the trial Court had directed to proceed in the matter ex parte on the basis that the notices were served by registry on 19.11.2008 but no order of the date has been brought on record.

From perusal of the Section 5 application as well as application filed under Order IX, Rule 13 C.P.C., it is clear that the defendants-respondents had categorically stated in his application as to non service of notice upon the defendants. The order impugned, allowing the delay condonation application on the ground that the summons were not served upon the defendants needs no interference by this Court as the application under Order IX Rule 13 C.P.C. is still pending consideration and only the delay in filing the application under Order IX, rule 13 C.P.C. has been condoned.

The writ petiton is misconceived. Dismissed. Order Date :- 19.2.2025 Kushal KUSHAL AGRAWAL High Court of Judicature at Allahabad