LexDWARIKA PRASAD (D) THR. LRS. versus PRITHVI RAJ SINGH
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[2024] 12 S.C.R. 2075 : 2024 INSC 1030 Dwarika Prasad (D) Thr. LRs. v. Prithvi Raj Singh (Civil Appeal No. 14830 of 2024) 20 December 2024 [Vikram Nath* and Prasanna B. Varale, JJ.] Issue for Consideration Whether a separate application for condonation of delay is mandatory in cases where sufficient justification was provided while seeking restoration against ex-parte decree. Headnotes† Requirement of filing separate application for condonation of delay while seeking restoration of ex-parte decree – Not mandatory: Held: Requiring a party to mandatorily file an application for condonation of delay u/s.5 of the Limitation Act, to seek restoration of ex-parte decree under Or.IX R.13 and Section 151 CPC, is a hyper technical view – Endorsing such a view would effectively mean ignoring the purpose of judicial procedure – The procedure cannot stand in the way of achieving just and fair outcome. [Para 12] A Party cannot suffer due to negligent or fault committed by the Counsel: Held: In the present case, the Appellant was not made aware of the ex-parte decree by his previous counsel – It is only after the appointment of the new counsel, the appellant got to know about the ex- parte decree – A party cannot suffer due to negligent or fault committed by their counsel. [Paras 9, 10] Case Law Cited Rafiq v. Manshilal [1981] 3 SCR 509 : [1981] 2 SCC 788; Bhagmal and Ors. v. Kunwar Lal and Others [2010] 8 SCR 1104 : [2010] 12 SCC 159 – relied on. *Author 2076 [2024] 12 S.C.R. Supreme Court Reports List of Acts Code of Civil Procedure, 1908; Limitation Act, 1963. List of Keywords Condonation of delay; Restoration of ex-parte decree. Case Arising From CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14830 of 2024 From the Judgment and Order dated 24.05.2022 of the High Court of Judicature at Allahabad in WC No. 18990 of 2004 Appearances for Parties Nikhil Jain, Ms. Divya Jain, Gagan Kumar, Ms. Maheen Khan, Advs. for the Appellant. Krishna Ballabh Thakur, Adv. for the Respondents. Judgment / Order of the Supreme Court Judgment Vikram Nath, J. 1. Leave granted. 2. This appeal assails the final judgement and order passed by Allahabad High Court in Writ Petition No.18990/2024 on 24.05.2022 whereby the High Court dismissed the Writ Petition and upheld the order of the District Judge, Etah in Civil Revision No.53 of 2000. The District Court, Etah (“Revisional Court”) had allowed the Civil Revision filed by Respondent Prithvi Raj Singh under section 115 of Civil Procedure Code (“CPC”) against the order dated 29.04.2000 passed by Additional Civil Judge (Junior Division) Kasganj (“Trial Court”) in Civil Miscellaneous Case No.33/1994. The Trial Court thereby had allowed the restoration application under Order IX Rule 13 and section 151 of CPC filed by the Appellant Dwarika Prasad. The High Court has effectively dismissed the restoration application, confirming the ex parte decree dated 11.04.1994 passed in favor of Respondent. [2024] 12 S.C.R. 2077 Dwarika Prasad (D) Thr. LRs. v. Prithvi Raj Singh 3. The facts leading to the present appeal are stated below: 3.1. Respondent-Plaintiff Prithviraj Singh instituted a civil suit registered as O.S. No.81 of 1988 seeking declaration of a sale deed as null and void on the ground of fraud played by the Appellant-defendant. Plaintiff averred that his grandfather Shri Guljari Lal was a bhumidhar with transferable rights of agricultural plot No. 315 area 0.66 Hectare, situated at Itwarpur, Pargana- Sahawar, District Etah and also of agricultural plot No.141 area 0.34 Hectare situated at Village Bodha Nagria. In the name of providing treatment, Appellant-defendant Dwarika Prasad took the grandfather of plaintiff to Kasganj. On 16.01.1979 the appellant got a sale deed executed by his grandfather by way of fraud in his favour. 3.2. The Court of First Additional Munsif, Kasganj, Etah decreed the suit ex parte by order dated 11.04.1994 on account of non-appearance of defendant and declared the sale deed in question to be void and unenforceable. 3.3. The Appellant-defendant filed restoration application under Order IX Rule 13 and Section 151 of CPC on 31.10.1994. He stated that he was uneducated, naïve and old aged person unable to understand Court proceedings; he had put full faith in his previous counsel Shri Ramgopal Singh. However, on 26.10.1994 the Respondent and his brothers publicly said to the Appellant that they have got the sale deed cancel
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