Summary
The Supreme Court restored a trial court order setting aside an ex parte decree, holding that a defendant who was kept unaware of the decree by his counsel and applied under Order IX Rule 13 CPC within days of learning of it did not need to file a separate application under Section 5 of the Limitation Act, and that a party should not suffer for the default of his advocate.
Issues
- Whether an application under Order IX Rule 13 CPC filed after the limitation period counted from the decree, but promptly after the defendant learnt of the ex parte decree, had to be accompanied by a separate application under Section 5 of the Limitation Act.
- Whether the revisional court was justified in interfering with the trial court's discretionary order setting aside the ex parte decree.
- Whether a litigant should suffer for the negligence or default of his counsel.
Provisions considered
- Order IX Rule 13, Code of Civil Procedure, 1908The trial court set aside the ex parte decree on finding that the illiterate defendant had been kept unaware of the proceedings by his previous counsel and applied soon after a new counsel discovered the decree. The Supreme Court held that the trial court had rightly exercised its discretion for justifiable reasons and that the application itself contained all the ingredients of a plea for condonation of delay. (¶¶ 9, 10, 11, 12)
- Section 5, Limitation Act, 1963The revisional court and the High Court treated the absence of a separate Section 5 application as fatal. The Supreme Court, relying on Bhagmal v. Kunwar Lal, held that no separate application for condonation of delay was needed where the restoration application itself explained the delay, and called the contrary view hyper-technical. (¶¶ 11, 12)
- Section 115, Code of Civil Procedure, 1908The Court held that the revisional court ought not to have exercised its revisional jurisdiction to interfere with the trial court's discretionary order setting aside the ex parte decree for reasons it had accepted. (¶ 10)
Held
- Courts should not shut out cases on mere technicalities but should give both sides an opportunity to have the matter decided on merits; procedure cannot stand in the way of a just and fair outcome. (¶¶ 9, 12)
- A party who has engaged an advocate and trusted him to conduct the case should not suffer for the advocate's negligence or default; the principle in Rafiq v. Munshilal was applied to a defendant whose previous counsel never told him of the ex parte decree. (¶¶ 9, 10)
- Where an application under Order IX Rule 13 CPC itself explains the delay, for instance by pleading that the applicant learnt of the ex parte decree only shortly before applying, there is no need for a separate application under Section 5 of the Limitation Act; insisting on one is a hyper-technical view. (¶¶ 11, 12)
- Where the trial court had exercised its discretion to set aside the ex parte decree for justifiable reasons, the revisional court ought not to have interfered; on the facts the appellant had acted bona fide and diligently. (¶¶ 10, 12)
Result
Appeal allowed; the High Court's order set aside, the writ petition allowed and the trial court's order of 29.04.2000 restored; the trial court directed to proceed with O.S. No. 81 of 1988 and endeavour to decide it within a year; no order as to costs.