TaxTMI 
TaxTMI 
2024 (12) TMI 1777
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....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. 3. The facts leading to the present appeal are stated below: 3.1....
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....Verma as his counsel who inspected the file in the Revenue Court, Kasganj. The Appellant was informed about the ex parte decree, on 27.10.1994. The Counsel for the Appellant found copy of the ex parte decree the next day on 28.10.1994. Accordingly, on 31.10.1994 the Appellant filed the restoration application. The Appellant stated in the application that his previous counsel Shri Ramgopal Singh played fraud over him as he conspired with Respondent. 4. The Trial Court allowed the restoration application and set aside the ex parte decree by order dated 29.04.2000. It found that the Appellant is illiterate and he has put thumb impressions wherever his counsel asked him to put. He was kept unaware of the legal proceedings by the previous cou....
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....n application that he came to know about the ex parte decree on 28.10.1994 and without further delay he filed restoration application on 31.10.1994. Thus, from the date of knowledge, the limitation for filing the application will start. There was no requirement of filing a separate application for condonation of delay as the restoration application itself was not time barred. 7. The High Court by the impugned order dated 24.05.2022, dismissed the Writ petition filed by the Appellant. The High Court has held that the limitation for filing application under Order IX Rule 13 CPC is 30 days and it starts running from the date of the decree. As the ex parte decree was passed on 11.04.1994, the limitation for filing the restoration application....
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....due to negligent or fault committed by their counsel. This principle has been enunciated by this court in the case of Rafiq v. Munshilal (1981) 2 SCC 788, quoted as follows: "3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of ....
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....or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order....." 10. In the present case, the appellant has trusted his counsel to manage the suit proceedings. However, he 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. Therefore, the Additional Sessions Judge ought not to have exercised the revisio....
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....the fact that they never knew about the decree and the orders starting the ex parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hypertechnical view that no separate application was filed under Section 5. 13. The application under Order 9 Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice." 12. From the above cases, it is clear that there was no need to file a separate application for condonation of delay in the present case as well. The High Court has erred in taking a hyper technical view and c....