Case Note & Summary
The case arises from a civil revision application filed by the defendant (Nasirkhan Shamsher Khan) challenging the order of the lower appellate court condoning a delay of 764 days in filing an appeal against an ex-parte decree. The trial court had decreed Regular Civil Suit No. 3225 of 2012 (Old Special Civil Suit No. 687 of 2009) on 06.01.2013, directing the defendant to hand over vacant possession of the disputed portion, remove structures, and pay occupation charges of Rs.32,000/-. The defendant claimed she had no knowledge of the suit proceedings and that summons were not duly served. She filed an appeal along with an application for condonation of delay (Misc. Civil Application No. 215 of 2015) on 06.04.2015. The lower appellate court allowed the application on 18.08.2015, observing that the trial court record showed the defendant had refused summons and an application to set aside the ex-parte order (Exh15) was rejected on 15.01.2011. The High Court, in revision, examined whether the lower appellate court's discretion was perverse or unreasonable. It held that the explanation of lack of knowledge constituted sufficient cause under Section 5 of the Limitation Act, 1963, and the appellate court's order was justified. The revision application was dismissed, and the appeal was directed to be heard on merits.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Sufficient Cause - The defendant claimed no knowledge of suit proceedings and that summons were not duly served. The trial court record showed refusal of summons and rejection of application to set aside ex-parte order. The lower appellate court condoned 764 days delay. The High Court held that the explanation of lack of knowledge constituted sufficient cause, and the appellate court's discretion was not perverse or unreasonable. (Paras 2-6) B) Civil Procedure Code - Ex-parte Decree - Setting Aside - Order 9 Rule 13 - The defendant had filed an application (Exh15) to set aside the ex-parte order, which was rejected on 15.01.2011. The High Court noted that the defendant's consistent stand of no knowledge was a valid ground for condonation of delay in appeal. (Paras 3-5)
Issue of Consideration
Whether the lower appellate court was justified in condoning a delay of 764 days in filing an appeal against an ex-parte decree on the ground that the defendant had no knowledge of the suit proceedings.
Final Decision
The High Court dismissed the civil revision application, upholding the lower appellate court's order condoning the delay. The appeal is directed to be heard on merits.
Law Points
- Condonation of delay
- Sufficient cause
- Ex-parte decree
- Limitation Act Section 5
- Knowledge of proceedings
- Refusal of summons
