The Allahabad High Court has said that if the grounds for delay in filing a case are satisfactory, then it is maintainable.
A single-judge bench of Justice Vipin Chandra Dixit passed this order while hearing a Delay Condonation Application filed by Praveen Goyal.
The first appeal has been filed by the appellant against the order dated February 7, 2011 passed by Additional District Judge, Court, Agra in Original Suit (Agra Oil and General Insurance Company and another Vs. M/s DC Trading Company, Grain Merchant and Commission Agent) along with delay condonation application supported with affidavit.
The facts of the case are that respondents-plaintiffs had filed an original suit for recovery of Rs 20 lakh along with 18% interest. It is pleaded in the plaint that plaintiff’s company deals in manufacture of mustard oil and the plaintiff’s company had purchased mustard seeds from the defendant.
It is also pleaded that during the business transaction Rs 20 lakh were paid by the plaintiffs to the defendant but the same was not adjusted by the defendant and the cheques issued by the defendant were dishonored by the bank and the defendant was not ready to refund Rs 20 lakh and as such the suit was filed by the respondents-plaintiffs for recovery of Rs 20 lakh along with 18% interest.
The notice was not served to the defendant appellant and the court below had proceeded ex-parte against the defendant and the suit was decreed by the trial court its judgment dated February 7, 2011.
When the defendant came to know about ex-parte decree dated February 7, 2021 he filed an application on August 4, 2012 under Order IX Rule 13 read with Section 151 of CPC for setting aside the exparte decree.
Counsel for appellant-defendant has not pressed the application on account of technical defects and the application filed by appellant-defendant under Order IX Rule 13 CPC was rejected by the trial court order dated September 4, 2012.
The appellant defendant again filed an application under Order IX Rule 13 CPC on September 12, 2012 for setting aside ex-parte judgment and decree dated February 7, 2011 and the application was allowed by the trial court order dated March 30, 2013 on payment of cost of Rs.5,000/- and ex-parte judgment and decree dated February 7, 2011 was set-aside.
The plaintiff-respondents had challenged the order dated March 30, 2013 by filing Civil Revision before the Court and the revision was allowed by the High Court judgment and order dated December 2, 2016 and the order dated March 30, 2013 by which application filed by appellant-defendant under Order IX Rule 13 CPC was allowed, was set-aside.
The order of the revisional court was challenged by the defendant-appellant before the Apex Court and the Special Leave Petition was dismissed by the Apex Court order dated March 6, 2017. After dismissal of SLP, the appellant-defendant has filed the first appeal along with a delayed condonation application.
It is submitted by counsel for appellant that there is no deliberate negligence on the part of the appellant in filing the appeal but as he was pursuing the application filed under Order IX Rul3 13 CPC before the court below, the delay occurred.
It is further submitted that delay occurred in filing the appeal is bonafide and is liable to be condoned by the Court and appeal preferred by the defendant is liable to be heard on merits. The counsel appearing for plaintiffs-respondents has submitted that there is inordinate delay of about 6 years in filing the appeal.
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It is further submitted that appellant-defendant has already exhausted the remedy by filing an application under Order IX Rule 13 CPC which was rejected by the Court in Civil Revision order dated December 2, 2016 and the SLP preferred by appellant-defendant was also dismissed by Apex Court and as such the appeal is not maintainable.
It is also submitted that since the appellant-defendant has opted to file an application under Order IX Rule 13 CPC for setting aside the exparte decree, the appeal under Section 96(2) CPC is not maintainable.
It is further submitted that appellant-defendant has adopted the delaying tactics and has filed an application under Order IX Rule 13 CPC without delay condonation application and later on the application was not pressed without obtaining any permission from the court below to file a fresh and thereafter another application under Order IX Rule 13 CPC was filed which was allowed by the court below and later on in the civil revision preferred by the answering respondent, the order was set-aside by the Court.
Counsel appearing for appellant-defendant in response has submitted that there is no negligence on the part of the appellant defendant and on the advice of counsel, application under Order IX Rule 13 CPC was filed and the appellant-defendant was pursuing the application under Order IX Rule 13 CPC and if there is any delay in filing the appeal, is only on account of pursuing the remedy under Order IX Rule 13 CPC.
Counsel for appellant-defendant has further submitted that there is no bar for filing the appeal under Section 96(2) of CPC under the circumstances when the application under Order IX Rule 13 CPC for recalling of ex-parte order was dismissed.
“Considering the rival submissions of counsel for parties and perusing the record, it appears that appellant-defendant has filed application under Order IX Rule 13 CPC for recalling of ex-parte order dated February 7, 2011 which was later on not pressed on account of some technical defects and another application was filed under Order IX Rule 13 CPC which was allowed by the trial court but the same was rejected in the civil revision filed by the plaintiff respondents as not maintainable being second one. Record shows that appellant-defendant continuously pursuing the application filed under Order IX Rule 13 CPC on the advice of his counsel and there is no deliberate negligence on his part in not filing the appeal in time. The cause shown in the affidavit filed in support of the delay condonation application is sufficient and the delay has properly been explained by the appellant-defendant. The delay in filing the appeal is condoned,”
-the court observed while allowing the application.
Office to allot regular number to the appeal and list for admission in 1st week of January, 2022 before appropriate Bench, the court ordered.