Dwarika Prasad v. Prithvi Raj Singh

Case snapshot

Sections / provisions: Limitation; Natural justice

Questions before the Court / Tribunal

• See the source-driven case record below.

Material facts and background

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 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

Appellant / assessee submissions

arose in the Appellant’s mind, he appointed Shri Ashok Kumar 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.

We have heard learned counsel for the appellant and perused the record. We are of the opinion that the High Court has erred in upholding the order of the Additional District Judge. The Trial Court had rightly allowed the

Revenue / respondent submissions

The judgment copy does not separately set out this component in a distinct section; refer to the full order and the reasoning section below.

Court / Tribunal analysis and reasoning

We have heard learned counsel for the appellant and perused the record. We are of the opinion that the High Court has erred in upholding the order of the Additional District Judge. The Trial Court had rightly allowed the

restoration application filed by the Appellant under Order IX Rule 13 of CPC. It is well settled that Courts should not shut out cases on mere technicalities but rather afford opportunity to both sides and thrash out the matter on merits. Further, we cannot let the party suffer due to negligent or fault committed by their counsel. This principle has been enunciated by this court in the case of Rafiq v. Munshilal1, 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 the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can...

Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that...

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 exparte decree. Therefore, the Additional Sessions Judge ought not to have exercised the revisional jurisdiction in interfering with the order of the Trial Court where it had exercised its discretion in setting aside the ex-parte decree for justifiable reasons accepting the reasons given by the defendant-appellant. 11. The Appellant has relied upon the following judgments in support of his submissions. In Bhagmal and Ors Vs. Kunwar Lal and Others2 this Court held as follows; “12. It is to be seen here that the question of delay

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 concluding that there was violation of mandatory provision of law. 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. In the present case, the Appellant acted bona fide and diligently. His conduct does not violate any rule of law. 13. In view of the above discussion, we allow this appeal, set aside the impugned order dated 24.05.2022 passed by High Court, and allow the writ petition and restore that of the Trial Court dated 29.04.2000. The Trial Court to proceed with O.S. No.81 of 1988 in accordance with law. As the suit is an old one, we further direct the Trial Court to expedite hearing of the suit and make an endeavour to decide the same within a year. It goes

Operative decision and relief

was completely interlinked with the merits of the matter. The appellant-defendants had 2

clearly pleaded that they did not earlier come to the court on account of the fact that they did not know about the order passed by the court proceeding ex parte and also the ex parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellantdefendants for making Order 9 Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order 9 Rule 13 application was, in our opinion, rightly considered by the appellate court on merits and the appellate court was absolutely right in coming to the conclusion that the appellantdefendants were fully justified in filing the application under Order 9 Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of 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...

Authorities and precedents appearing in the judgment

• Rafiq v. Munshilal1

This list is machine-assisted from the judgment text and is not a substitute for checking the full citation chain in the PDF.

Ratio and legal principle

The decision turns on the statutory and factual issues recorded above. The operative result is classified as Quashed / set aside. Read the rule only with the statutory version, factual findings and precedent chain recorded in the full judgment.

Why this judgment matters

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Practitioner action points

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