Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Code of Civil Procedure r. I 3 - Maintainability 1908 - 01: IX r. 9 and s.141 -Appeal against order dismissing application for restoration of application u/Or. IX |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Code of Civil Procedure, 1908 - 01: IX r. 9 and s.141 -Appeal against order dismissing application for restoration of application u/Or. IX, r. I 3 - Maintainability of - Respondent-Plaintiff filed suit against the defendant, predecessor-in-interest of the appellants - The suit proceeded ex parte against the defendant and was decreed - Defendant filed application u/Or. IX. r.I 3 to set aside the ex parte decree, however; the same was dismissed in default - Thereafter, defendant died - Legal heirs of the defendant i.e. appellants filed application praying for restoration of application filed u/Or. IX r. I 3 - Application dismissed by trial Court - Appellate Court i.e. District Judge allowed the appeal u/Or. XLJIJ, r. I rlw. s. I 04 and restored the application u/Or. IX, r. I 3 - High Court, however, proceeded to examine the question of maintainability of appeal and held that appeal filed by the appellant before the District Judge was not maintainable - Held: The application.filed by the appellants for restoration was registered in miscellaneous proceedings and as per s. 14I, provisions of Or. IX were applicable for the same 'application - When Or. IX is made applicable to proceedings in the nature of application seeking recall of the order dismissing application u/Or. IX r. I 3, the order passed by the civil court rejecting F such application is clearly referable to Or. IX r.9 and an order which is clearly referable to Or. IX, r.9 is also appealable by virtue of Or. XLJIJ, r. I (c) - Hence, appeal against the order of the trial Court was clearly maintainable u!Or. XLJJJ, 1: 1 (c) - High Court erred in holding that such appeal was not maintainable. Delay/Laches - Condonation of delay - Application filed by appellants for restoration of application u/Or. IX r.13 dismissed by the trial Court - Appellate Court i.e. District Court allowed the appeal - However, High Court held that restoration application was not maintainable and also observed that application was barred by time - Held: The appellants in their application itself hadalready given sufficient explanation for filing the delayedapplication - They were not aware of the application u!Or. IX, r.13flied by their predecessor-in-interest - Application flied by thepredecessor-in-interest was called on 19.10.2001, which was dismissed in default and he died on 20.11.2001 - The predecessor-in-interest had fallen seriously ill and was busy in treatment, henceno one could appear and after he died the application was filed -He died within a span of one month from dismissal of suit -Appellate Court rightly reversed the finding of the trial Courthaving found sufficient cause for restoration, it is just and equitable to conclude that there was sufficient cause forcon-donation of delay - Limitation Act, 1963- s.5. |
Judge | Hon'ble Mr. Justice Ashok Bhushan |
Neutral Citation | 2017 INSC 656 |
Petitioner | Jaswant Singh & Ors |
Respondent | Park.ash Kaur & Anr |
SCR | [2017] 8 S.C.R. 731 |
Judgement Date | 2017-07-21 |
Case Number | 9409 |
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