# Abul Hasan & Ors v. Additional Commissioner

- **Citation:** (2020) 6 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-30
- **Case number:** Writ-C No. 13490 of 2009
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abul-hasan-ors-v-additional-commissioner-45806
- **Pages:** 12

## Headnote

A. Civil Law - Code of Civil Procedure
,1908 - Section 5 - Order 9 Rule 13 - The
Limitation Act, 1963 - allowing application
under Order 9 Rule 13 of C.P.C. - setting
aside decree ex parte against defendant -
S.D.M committed jurisdictional error - no
proper application for condonation of delay -
rightly corrected by the revision court in
exercise of its revisional power - order of the
revision court based on settled principles of law
- no illegality or infirmity in the said order - if
the act of advocate is not in furtherance to
accomplish the purpose for which he has been
engaged by his client or against the statutory
provisions or rules, such an act of advocate
would not be binding upon the client (Director
of Elementary Education Odisha & Others Vs.
Pramod Kumar Sahoo 2019 (10) SCC 674).
(Para - 23,27)

Respondent no.2 instituted partition suit before
Sub-Divisional Magistrate - under Section 176
of U.P. Zamindari Abolition and Land Reforms
Act, 1950 - ex-parte judgement and decree
passed - preliminary decree prepared - quras
prepared by lekhpal - application under Order 9
Rule 13 of C.P.C. filed by the petitioners - delay
of four years after the exparte judgement - no
application under Section 5 of The Limitation
Act, 1963 filed by the petitioners - specific
objection raised by respondent no.2 - regarding
maintainability of application under 9 Rule 13 of
C.P.C. being barred by time - S.D.M. did not
consider objections - passed a cryptic order -
allowing the application under Order 9 Rule 13
of C.P.C with cost of Rs.300/- - objection of the
petitioners - once the cost of Rs.300/- is
accepted by counsel for respondent no.2, it is
not open to respondent no.2 to challenge the
said order. (Para - 14,15,24)

HELD:- Acceptance of cost by the advocate of the
respondent no.2 is not an act in furtherance to
accomplish the purpose for which he was engaged
and also in violation of statutory provision as the
application under Order 9 Rule 13 of C.P.C. was
incompetent in absence of delay condoantion
application and any order passed condoning the delay
in filing the aforesaid application - Such an act of
respondent no.2 would not debar him from
challenging the order of S.D.M. setting aside ex-parte
judgment and decree. (Para-27)

Petitions dismissed.(E-7)

List of Cases Cited:-

1.Balwant Singh (dead) Vs Jagdish Singh & ors., AIR
(2010) SC 3043

## Text

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6 All. Abul Hasan & Ors. Vs. Additional Commissioner (Second), Allahabad Division & Ors.
255
(2020)06ILR A255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-C No. 13490 of 2009

Abul Hasan & Ors. ...Petitioners
Versus
Additional
Commissioner
(Second),
Allahabad Division & Ors.. ...Respondents

Counsel for the Petitioners:
Sri M.N. Singh, Sri Mahesh Narain Singh

Counsel for the Respondents:
C.S.C., Sri Aun Haider, Sri Pramod Kumar
Pandey, Sri Rajiv Lochan Shukla, Sri
Salman Ahmad, Sri V.K. Singh

A. Civil Law - Code of Civil Procedure
,1908 - Section 5 - Order 9 Rule 13 - The
Limitation Act, 1963 - allowing application
under Order 9 Rule 13 of C.P.C. - setting
aside decree ex parte against defendant -
S.D.M committed jurisdictional error - no
proper application for condonation of delay -
rightly corrected by the revision court in
exercise of its revisional power - order of the
revision court based on settled principles of law
- no illegality or infirmity in the said order - if
the act of advocate is not in furtherance to
accomplish the purpose for which he has been
engaged by his client or against the statutory
provisions or rules, such an act of advocate
would not be binding upon the client (Director
of Elementary Education Odisha & Others Vs.
Pramod Kumar Sahoo 2019 (10) SCC 674).
(Para - 23,27)

Respondent no.2 instituted partition suit before
Sub-Divisional Magistrate - under Section 176
of U.P. Zamindari Abolition and Land Reforms
Act, 1950 - ex-parte judgement and decree
passed - preliminary decree prepared - quras
prepared by lekhpal - application under Order 9
Rule 13 of C.P.C. filed by the petitioners - delay
of four years after the exparte judgement - no
application under Section 5 of The Limitation
Act, 1963 filed by the petitioners - specific
objection raised by respondent no.2 - regarding
maintainability of application under 9 Rule 13 of
C.P.C. being barred by time - S.D.M. did not
consider objections - passed a cryptic order -
allowing the application under Order 9 Rule 13
of C.P.C with cost of Rs.300/- - objection of the
petitioners - once the cost of Rs.300/- is
accepted by counsel for respondent no.2, it is
not open to respondent no.2 to challenge the
said order. (Para - 14,15,24)

HELD:- Acceptance of cost by the advocate of the
respondent no.2 is not an act in furtherance to
accomplish the purpose for which he was engaged
and also in violation of statutory provision as the
application under Order 9 Rule 13 of C.P.C. was
incompetent in absence of delay condoantion
application and any order passed condoning the delay
in filing the aforesaid application - Such an act of
respondent no.2 would not debar him from
challenging the order of S.D.M. setting aside ex-parte
judgment and decree. (Para-27)

Petitions dismissed.(E-7)

List of Cases Cited:-

1.Balwant Singh (dead) Vs Jagdish Singh & ors., AIR
(2010) SC 3043

2. Ramlal & ors. Vs Rewa Coalfields Ltd., AIR (1962)
SC 361

3. Ramesh Chand Sharma Vs Udham Singh Kamal &
ors., (1999) 8 SCC 304

4. Himalayan Cooperative Group Housing Society Vs
Balwan Singh, (2015) 7 SCC 373

5. Director of Elementary Education Odisha & ors. Vs
Pramod Kumar Sahoo, (2019) 10 SCC 674

(Delivered by Hon'ble Saral Srivastava, J.)

Order on Civil Misc. Delay
Condonation Application No.268647 of
2012.
256 INDIAN LAW REPORTS ALLAHABAD SERIES

1. The delay condonation application
has been filed to condone the delay in filing
the Substitution Application No.268649 of
2012 to substitute the legal heirs of
respondent no.3 Sariful Hasan, who died on
06.03.2009 and legal heirs of respondent
no.4, Nazmul
Hasan,
who died
on
06.06.2010.

2. A joint affidavit in support of
aforesaid two applications has been file by
one Abul Hasan. The aforesaid substitution
application has been filed on 10.09.2012.
The reason for delay has been stated in
paragraph 5 to 8 of the affidavit which are
being extracted hereinbelow:-

"5. That subsequent to the death
of the aforesaid respondents although
substitution application, for bringing their
heirs on record, was filed on behalf of the
petitioner in case no. 54/2008 (Shamsul
Hasan Versus Saliya Khatoon) which is
pending before the Civil Judge (Jr. Div.)
Khaga District Fatehpur but due to
inadvertent
mistake
this
substitution
application, immediately after death of the
deceased/respondents, could not be filed in
the present writ petition.

6. That recently on 20.4.2012 an
abatement application with regard to the
deceased respondent no.3 and 4 was
received in the office of the learned counsel
for the petitioners whereby the deponent
received information for taking necessary
steps and for filing of reply to the same.

7. That immediately thereafter the
deponent rush to Allahabad, informed the
aforesaid necessary facts to his learned
counsel immediately where after without
any further delay, the present substitution
application is being filed.

8. That the delay occurred in
filing the present substitution application is
neither intentionally nor knowingly as such
same may be condoned and present
substitution application may be allowed
setting aside the abatement if any."

3. The respondent no.2 filed counter
affidavit to the aforesaid delay condonation
application contending inter alia that petitioner
in paragraph 5 of the affidavit has not stated the
date of filing the substitution application in
Case No.54 of 2008 (Shamsul Hasan Vs. Saliya
Khatoon) pending before Civil Judge (Junior
Division), Khaga, District Fatehpur. It is further
stated that the deceased and petitioners
belonged to one family and were neighbours,
and petitioners had full knowledge about the
death of respondent nos.3 & 4. Thus, the delay
in filing the substitution application was
deliberate and intentional. It is further stated that
the abatement application filed by respondent
no.2 was served in the office of counsel for
petitioner on 20.04.2012, and petitioners filed
substitution application on 09.09.2012 after 114
days from the date of receiving the abatement
application without stating the cause for delay
of 114 days in filing the substitution application.
On the basis of aforesaid pleadings, respondent
no.2 has prayed for dismissal of the delay
condonation application.

4. I have considered the rival submissions
of the parties and perused the record.

5. The respondent no.3 had died on
06.03.2009 and respondent no.4 had died on
06.06.2010, therefore, there was delay of about
more than three years from the date of death of
respondent no.3 and more than two years from
the date of death of respondent no.4 in filing the
substitution application. The paragraph 5 of the
affidavit filed in support of the delay
condonation application, extracted above,
clearly reveals that petitioners had knowledge
about the death of respondent nos.3 & 4 and
they had filed the substitution application to
bring the legal heirs of respondent nos.3 & 4 on
6 All. Abul Hasan & Ors. Vs. Additional Commissioner (Second), Allahabad Division & Ors.
257
record in Case No.54 of 2008 (Shamsul Hasan
Vs. Saliya Khatoon), but no reason has been
given by the petitioners in the affidavit which
prevented the petitioners from filing the
substitution application in the present case.

6. Further, it is also admitted on
record
that
petitioners
had
received
abatement application filed by respondent
no.2 on 20.04.2012, yet petitioners did file
substitution application, and no explanation
has been tendered by the petitioners in the
affidavit for 114 days delay in filing the
substitution application after receiving the
abatement application.

7. In view of this fact, the Court is of
the opinion that there is inordinate delay of
more than three years from the date of
death of respondent no.3 and more than
two years from the date of death of
respondent no..4 in filing the substitution
application, and no cogent and sufficient
explanation has been tendered by the
petitioners which prevented them from
filing the substitution application in time,
therefore, delay in filing the substitution
application was not bona-fide.

8. At this juncture, it would be apt to
refer the judgement of Apex Court in the
case of Balwant Singh (dead) Vs. Jagdish
Singh and others, AIR 2010 SC 3043
wherein Apex Court has refused to condone
the delay of 778 days in filing the
substitution
application
by
heirs
of
appellant
who
died
on
28.11.2007.
Paragraph 13 of the judgement is extracted
hereinbelow:-

"13. As held by this Court in the
case of Mithailal Dalsangar Singh (supra),
the abatement results in the denial of
hearing on the merits of the case, the
provision of abatement has to be construed
strictly. On the other hand, the prayer for
setting aside an abatement and the
dismissal consequent upon an abatement,
have to be construed liberally. We may
state that even if the term `sufficient cause'
has to receive liberal construction, it must
squarely
fall
within
the
concept
of
reasonable time and proper conduct of the
concerned
party.
The
purpose
of
introducing liberal construction normally is
to
introduce
the
concept
of
`reasonableness' as it is understood in its
general connotation. The law of limitation
is a substantive law and has definite
consequences on the right and obligation of
a party to arise. These principles should be
adhered to and applied appropriately
depending on the facts and circumstances
of a given case. Once a valuable right, as
accrued in favour of one party as a result of
the failure of the other party to explain the
delay by showing sufficient cause and its
own conduct, it will be unreasonable to
take away that right on the mere asking of
the applicant, particularly when the delay
is directly a result of negligence, default or
inaction of that party. Justice must be done
to both parties equally. Then alone the ends
of justice can be achieved. If a party has
been thoroughly negligent in implementing
its rights and remedies, it will be equally
unfair to deprive the other party of a
valuable right that has accrued to it in law
as a result of his acting vigilantly. The
application filed by the applicants lack in
details. Even the averments made are not
correct and ex-facie lack bona fide. The
explanation has to be reasonable or
plausible, so as to persuade the Court to
believe that the explanation rendered is not
only true, but is worthy of exercising
judicial discretion in favour of the
applicant. If it does not specify any of the
enunciated
ingredients
of
judicial
pronouncements,
then
the
application
258 INDIAN LAW REPORTS ALLAHABAD SERIES
should be dismissed. On the other hand, if
the application is bona fide and based upon
true and plausible explanations, as well as
reflect normal behaviour of a common
prudent person on the part of the applicant,
the Court would normally tilt the judicial
discretion in favour of such an applicant.
Liberal construction cannot be equated
with doing injustice to the other party. In
the case of State of Bihar v. Kameshwar
Prasad Singh [(2000) 9 SCC 94], this
Court had taken a liberal approach for
condoning the delay in cases of the
Government, to do substantial justice.
Facts of that case were entirely different as
that was the case of fixation of seniority of
400 officers and the facts were required to
be verified. But what we are impressing
upon is that delay should be condoned to
do substantial justice without resulting in
injustice to the other party. This balance
has to be kept in mind by the Court while
deciding such applications. In the case of
Ramlal and others v. Rewa Coalfields Ltd.,
[AIR 1962 SC 361] this Court took the
view:

"7. In construing Section 5 is
relevant to bear in mind two important
considerations.

The first consideration is that the
expiration of the period of limitation
prescribed for making an appeal gives rise
to a right in favour of the decree holder to
treat the decree as binding between the
parties. In other words, when the period of
limitation prescribed has expired the
decree-holder has obtained a benefit under
the law of limitation to treat the decree as
beyond challenge, and this legal right
which has accrued to the decree holder by
lapse of time should not be light heartedly
disturbed. The other consideration which
cannot be ignored is that if sufficient cause
for excusing delay is shown discretion is
given to the Court to condone delay and
admit the appeal. This discretion has been
deliberately conferred on the Court in
order that judicial power and discretion in
that behalf should be exercised to advance
substantial justice. As has been observed by
the Madras High Court in Krishna v.
Chathappan, ILR 13 Mad 269.

It is however, necessary to
emphasize that even after sufficient cause
has been shown a party is not entitled to
the condonation of delay in question as a
matter of right. The proof of a sufficient
cause is a condition precedent for the
exercise of the discretionary jurisdiction
vested in the court by Section 5. If sufficient
cause is not proved nothing further has to
be done; the application for condoning
delay has to be dismissed on that ground
alone. If sufficient cause is shown then the
Court has to enquire whether in its
discretion it should condone the delay. This
aspect of the matter naturally introduces
the consideration of all relevant facts and it
is at this stage that diligence of the party or
its bona fides may fall for consideration;...

9. Thus, for the reasons given above
and in the light of judgement of Apex Court
in the case of Balwant Singh (dead)
(supra), the delay condonation application
lacks merit and is accordingly, dismissed.
Consequently, substitution application is
also dismissed and abatement application
No.128911 of 2012 filed by the respondent
no.2 is allowed and writ petition is abated
against the respondent nos.3 and 4.

Order on Writ Petition.

1. The petitioners by means of the
present writ petition have assailed the order
dated 14.08.2006 passed by the Additional
Commissioner
(Second),
Allahabad
Division, Allahabad in Revision No.333 of
2005 (Smt. Saiyda Saleha Khatoon Vs.
6 All. Abul Hasan & Ors. Vs. Additional Commissioner (Second), Allahabad Division & Ors.
259
Manzar Hasan and Others) and order dated
20.12.2008
passed
by
Additional
Commissioner
(Second),
Allahabad
Division, Allahabad on Review Application
of petitioners in Revision No.333 of 2005.

2. The facts of the present case in
nutshell are that respondent no.2 Smt.
Saiyda Saleha Khatoon instituted Case
No.10 of 1998-99 under Section 176 of
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950 in the court of SubDivisional Magistrate, Khaga, Fatehpur
(hereinafter
referred
to
as
''S.D.M,
Fatehpur') praying for decree of partition of
Gata No.66 having an area of 0.767
hectare, Gata No.826 having an area of
0.065 hectare and Gata No.850 having an
area of 0.720 hectare situated in Araji
Mauja Bahera Sadat, Pargana Hathgaam,
Tehsil Khaga, District Fatehpur.

3. The aforesaid suit has been
instituted by respondent no.2 contending
inter alia that she is the owner of half of the
aforesaid gatas and respondent nos.3 to 5
and 7 (defendants in the suit) are the owner
of remaining half of the aforesaid gatas. It
appears that the suit proceeded exparte
against the petitioners as well as respondent
nos.3 to 5 and 7. The suit was decreed exparte by judgement and order dated
23.06.1999 passed by S.D.M., Khaga,
Fatehpur. Thereafter, a preliminary decree
was prepared on 28.05.1999. Pursuant to
the aforesaid decree, quras were also
prepared on 23.06.1999.

4. The petitioners allege that they
came to know about the exparte decree
only when quras were sought to be
executed on spot on 23.06.1999. The
petitioners, thereafter, filed an application
under Order 9 Rule 13 of C.P.C. on
28.1.2003 registered as Misc. Case No.10
of 1998-99 before the S.D.M, Fatehpur for
setting aside the exparte judgement dated
23.06.1999,
preliminary
decree
dated
28.05.1999 and order dated 23.06.1999
directing for preparation of quras.

5. In the aforesaid application,
petitioners alleged that they came to know
about the exparte decree from Lekhpal
when he sought to execute the quras
prepared pursuant to the exparte decree. It
is further stated that mother of applicant
was suffering from cancer and was
undergoing treatment at Sanjay Gandhi
Postgraduate Institute of Medical Sciences
where she died and after funeral and
observing other rituals, petitioners got the
record of the case inspected and came to
know on 22.01.2003 about the exparte
decree. It is further stated that there was no
service of summons upon the petitioners
and by plying fraud, respondent no.2 has
obtained exparte decree. The necessary
averments has been made in paragraph 3, 4
& 5 of the application which are being
extracted hereinbelow:-

"nQk 3%& ;g fd izkFkhZ vcqy glu
dks vHkh gky esa gh fnlEcj ds vfUre lIrkg
esa tfj;s gYdk ys[kiky ds ek/;e ls tkudkjh
gqbZ fd okn ls lEcfU/kr fookfnr Hkwfe dk
ljdkjh caVokjk lkysgk [kkrwu us djk;k gS
ftldh ekSds ij cWVokjk vkns'k ds gh rgr
dCtk n[ky djk dj mudh esM+ ca/kokuh gS]
rqjUr gh izkFkhZ vcqy glu us vius vU; HkkbZ
,oa eUtj glu dks bldh lwpuk nhA eUtj
glu izkFkhZ dh ekW dSUlj ls ml oDr ihfM+r
Fkh ftudk bykt og iksLV xsztq,V lat;
xkW/kh laLFkku y[kum ls djk jgs Fks] fdUrq
nqHkkZX;o'k mudk bUrdky Hkh gks x;k vkSj
tc og viuh ekWdk pkyhlokW oxSjg djkus ds
i'pkr~ mUgsa tc FkksM+k fnekxh lqewy feyk rc
odhy lkgc ds ek/;e ls i=koyh cWVokjk dh
eqvkbuk djk;k rc mUgsa loZ izFke fnukad 2201-03 dks tkudkjh gq;h fd mDr lkysgk
[kkrwu okfnuh us 'kjhQqy o tQ:y ds lkFk
260 INDIAN LAW REPORTS ALLAHABAD SERIES
,oa "kM;a= ds rgr viuk mDr cWVokjk fcuk
ge izkFkhZx.k ds tkudkjh ds cxSj fof/kor~
lEeu rkehyk ds gh xyr rjhdksa ds ek/;e ls
fcuk fdlh gd o vf/kdkj ds fookfnr Hkwfe esa
viuk gd iSnk djus dh fu;r ls djk ikus esa
QkSjh rkSj ij lQy gks x;kA

nQk 4%& ;g fd izkFkhZ eUtj glu
flfoy dksVZ Qrsgiqj esa tuojh 1978 bZ0 esa
ukSdjh Tokbu djds viuk Lo;a dk jsgkbZ'k
eksgYyk pkS/kjkuk edku uEcj 67 'kgj o
ftyk&Qrsgiqj esa jgrk pyk vk jgk gSA izkFkhZ
dks dHkh Hkh mDr irs ij lEeu ugha Hkstk
x;k vkSj lfoZl irs ij Hkh okfnuh }kjk dksbZ
lEeu Hkstus dk dksbZ Hkh iz;kl tkucw> dj
ugha fd;k x;k ;|fi fd okfnuh }kjk vius
izkFkZuki= fnukad 17-12-1998 bZ0 esa bl rF;
dk mYys[k fd;k x;k fd eUtj glu iq=
de:y glu 'kgj Qrsgiqj esa ukSdjh djrs
gSaA bl izdkj eUtj glu dh Qrsgiqj ds irs
ij dksbZ Hkh lEeu U;k;ky; }kjk fuxZr ugha
gqvk vkSj u gh mu ij dkuwuu lEeu dk
dksbZ Hkh rkehyk i;kZIr gh ekuk tk ldrk
gSA

nQk 5%& ;g fd eUtj glu izkFkhZ
ds vykokW izkFkhZx.k 'ke'kqy glu] gluSu
glu] ,tkt glu o vcqy glu ij Hkh
lEeu dk O;fDrxr dksbZ rkehyk ugha gS]
fdUrq mu ij xyr rjhdksa ls b.MkslZes.V
djk fn;k x;k gS] tcfd mu ij gLo eU'kk
dkuwu vksn'k 5 fu;e 17 tkCtk nhokuh dk
Hkh vuqikyu rkehyk ugha ekuk tk ldrk
gSA**

6. The aforesaid application was
contested by respondent no.2 by filing
objection
contending
inter
alia
that
restoration application filed by petitioners
is highly time barred as it has been filed
after four years from the date of the
judgement in the partition suit. It is also
contended that claim of Badrul Hasan,
Kamrul Hasan and Faqrul Hasan, fathers of
defendants in respect of property in dispute
on the basis of some sale deed alleged to
have been executed in the year 1923 was
turned down by the consolidation officer by
judgement dated 13.04.1976.

7. It is further averred that
respondent no.2 filed a mutation case
under Section 34 of L.R. Act which was
opposed by judgement debtors and they
lost the case upto the court of Additional
Commissioner and name of respondent
no.2 has been mutated in the revenue
records.
In
the
said
application,
respondent no.2 also gave reference to
several other litigations which had been
contested between the parties. In respect
of service of notice, respondent no.2 gave
details in paragraph 7 of the objection as
to how the service of summons were
effected upon the petitioner as well as
other defendants in the suit. Paragraph 7
of the objection is being extracted
hereinbelow:-

"7 That so far the question of socalled technical service of summon and
notice is concerned, this court made every
effort to procure the attendance of all the
J.Ds and the deponent complied all the
orders of this court in this regard. For
example:-

"(I). The applicants Hasnain
Hasan and Aijaz Hasan Nos. 3 and 4 are
the real brothers and pairokar of the
applicant nos.2 and 5 were personally
served by process-server of this court on
14.12.1998 and their brothers summons
was served by affixation.

(II). That later the Gram Sabha
and the opposite parties Nos.2 and 3 and 4,
the J.Ds were also personally served who
are no other an the real uncle's son of
Manzar Hasan the Chief Mischief monger
and this court having been satisfied that
Manzar Hasan wielding his influence is
deliberately avoiding service of summons.
However, this court passed orders for
6 All. Abul Hasan & Ors. Vs. Additional Commissioner (Second), Allahabad Division & Ors.
261
summoning them by publication which was
published on 13.12.1998.

(III). That none of the J.Ds
appeared in the court and as such the 1/2
(Half) share purchased by the Saleha
Khatoon was held and ordered to be
separated.
The
court
provided
full
opportunity to the defendants and passed
the decree and final decree, delivered the
possession. The J.Ds were taking false and
lame excuses. Moreover, the share of the
Vendor and that of Saleha Khatoon is not
disputed now and cannot be asserted under
law as the same is not only barred by
principles of Resjudicata but also Role of
Estoppel and the section 49 of U.P.
Consolidation of Holdings Act.

(IV). That the J.Ds have suffered
no loss or injury or prejudice by the
preliminary/final decree as nothing has
been written in this regard and as such the
application under Order 9 Rule 13 is
totally untenable which will mean the
turning round the whole judicial process
and creating confusion and dispute on spot
regarding possession.

(V). That the application and
affidavit of some of the Judgment Debtors
are totally false and is time barred and also
has no merit and is liable to be dismissed."

8. The S.D.M, Fatehpur allowed the
application under Order 9 Rule 13 of C.P.C.
by order dated 05.07.2005. The order dated
05.07.2005 reads as:-

"i{kksa dks lqukA i=koyh ns[kkA
U;k;fgr esa ,di{kh; vkns'k fn 13-01-99] 25-0599] o 23-06-99 eq0 300@& 1⁄4rhu lkS :i;k1⁄2
gtkZuk dh vnk;xh ij fujLr fd;k tkrk gSA
g0v0
,l0Mh0,e0
05-07-05
300@&rhu lkS :i;k izkIr fd;kA
g0v0
18-07-05""

9. Against the order dated 05.07.2005,
respondent no.2 preferred Revision No.333
of 2005 before Commissioner, Allahabad
which was later on transferred to the court
of Additional Commissioner-II Allahabad
Division, Allahabad (hereinafter referred to
as
''Additional
Commissioner').
The
revision was allowed by the Additional
Commissioner by order dated 14.08.2006
by recording a finding that S.D.M.,
Fatehpur should have given notice of recall
application to respondent no.2 (revisionapplicant). It further recorded that the court
below did not return any finding in respect
of delay in filing the application under
Order 9 Rule 13 of C.P.C. and without any
order having been passed condoning the
delay in filing the application under Order
9 Rule 13 of C.P.C., the ex-parte judgement
and decree could not have been set aside by
the S.D.M, Fatehpur.

10.

The
petitioner,
thereafter,
preferred a review application against the
order dated 14.08.2006 contending therein
that finding of Additional Commissioner
that revision-applicant (respondent no.2 in
writ petition) was not heard before passing
the order on the recall application was
wrong and against the record inasmuch as
the counsel for revision-applicant had
accepted the cost of Rs.300/-. It is further
stated in the review application that no
order for condoning the delay in filing the
recall application is needed, and revision
court has erred in setting aside the order
passed by the S.D.M., Fatehpur dated
05.07.2005.
The
aforesaid
review
application
was
dismissed
by
the
Additional Commissioner by order dated
20.12.2008
as
the
Additional
Commissioner found no merit in the review
application.
262 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Challenging the aforesaid order,
learned counsel for the petitioner has
contended that the revision court has erred
in setting aside the ex-parte judgment and
decree inasmuch as respondent no.2 is
bound by the act of acceptance of cost by
his counsel which amounted to acquiescing
to the order of S.D.M., Fatehpur. Thus, he
submits that once the cost has been
accepted by counsel of the respondent no.2,
the
revision
court
has
committed
jurisdictional error in allowing the revision
and
setting
aside
the
order
dated
05.07.2005 passed by the S.D.M., Fatehpur.

12. Per contra, learned counsel for
respondents has contended that detail
objections were filed by the respondent
no.2 before the S.D.M., Fatehpur against
the application under Order 9 Rule 13 of
C.P.C. wherein respondent no.2 has averred
that there was inordinate delay in filing the
recall application and further, facts in detail
have been stated in the said objection
regarding the service of summons upon the
petitioners as well as other defendants, but
the S.D.M., Fatehpur while passing the
order dated 05.07.2005 has failed to record
any finding on the said objection. He
further contends that unless the delay in
filing the application under Order 9 Rule 13
of C.P.C. was condoned, the S.D.M,
Fatehpur had no jurisdiction to decide the
application under Order 9 Rule 13 of C.P.C.
He further submits that no application
under Section 5 of Limitation Act had been
filed praying for condonation of delay in
filing the application under Order 9 Rule 13
of C.P.C. and thus, in the absence of any
such application praying for condonation of
delay and any order passed by the S.D.M.,
Fatehpur condoning the delay in filing the
recall application, the order of S.D.M.,
Fatehpur dated 05.07.2005 is per se illegal
and
without
jurisdiction.
Thus,
the
submission is that revision court has not
committed any jurisdictional error which
calls for interference by this Court in
exercise of power under Article 226 of
Constitution of India.

13. I have considered the rival
submissions of the parties and perused the
record.

14. In the case in hand, the ex-parte
judgement and decree was passed on
23.06.1999. The preliminary decree was
prepared on 28.05.1999 and quras pursuant
to the preliminary decree were prepared on
23.06.1999. The application under Order 9
Rule 13 of C.P.C. was filed by the
petitioners on 28.01.2003 which was four
years after the exparte judgement dated
23.06.1999. The record reveals that no
application under Section 5 of The
Limitation Act, 1963 was filed by the
petitioners praying for condonation of
delay in filing application to set aside exparte judgment and decree. Even in
application under Order 9 Rule 13 of
C.P.C., the petitioners have not made any
averment explaining the delay in filing the
application. Paragraph 3 to 5 of the
application under Order 9 Rule 13 of
C.P.C., extracted above, clearly reveals that
vague averment has been made regarding
the knowledge of the exparte judgement.

15. The respondent no.2 raised a
specific
objection
regarding
the
maintainability of application under 9 Rule
13 of C.P.C. being barred by time in
paragraph 7 (v) of the objection extracted
above. The S.D.M. while allowing the
application under Order 9 Rule 13 of C.P.C.
did not deal with the objection of
respondent
no.2
regarding
the
maintainability of the application under
Order 9 Rule 13 of C.P.C being barred by
6 All. Abul Hasan & Ors. Vs. Additional Commissioner (Second), Allahabad Division & Ors.
263
time. Further, in paragraph 7 (i) to (v) of
the objection, extracted above, petitioners
have also made specific averment regarding
the service of notice upon the petitioners.
The S.D.M., Fatehpur did not consider the
aforesaid objections and passed a cryptic
order allowing the application under Order
9 Rule 13 of C.P.C with cost of Rs.300/-.

16. The petitioners raised specific
objection in revision that application under
Order 9 Rule 13 of C.P.C was barred by
time and not maintainable and further,
summons were duly served upon the
petitioners and burden was upon the
petitioners to prove that summons were not
served upon them which the petitioners had
utterly failed to do as they did not lead any
evidence to substantiate the averment made
in application under Order 9 Rule 13 of
C.P.C that summons were not served upon
them.

17. The revision court after hearing
parties recorded specific finding that in
absence
of
any
delay
condonation
application or any order passed by the
S.D.M., Fatehpur condoning the delay in
filing the application under Order 9 Rule 13
of C.P.C, the S.D.M., Fatehpur had no
jurisdiction to decide application under
Order 9 Rule 13 of C.P.C. The revision
court also noticed the fact that no notice
fixing the date of hearing on application
under Order 9 Rule 13 of C.P.C was served
upon respondent no.2, and therefore, the
order of S.D.M, Fatehpur dated 05.07.2005
is not sustainable as the same was without
hearing
the
respondent
no.2.
The
Additional Commissioner while deciding
the review application found that there was
no error committed by the revision court in
deciding the revision and, consequently,
Additional Commissioner found no merit in
the review application and rejected the
same by order dated 20.10.2008.

18. Now, the question that arises for
consideration in the present case is as to
whether S.D.M, Fatehpur had jurisdiction
to proceed with the application under Order
9 Rule 13 of C.P.C filed after the period of
limitation without condoning the delay in
filing the application.

19. Article 123 of schedule of the
Limitation
Act,
1963
provides
for
limitation in filing an application to set
aside a decree passed exparte or heard
exparte.
Article
123
is
extracted
hereinbelow:-

"THIRD
DIVISIONAPPLICATIONS
Description of application Period of
Limitation Time from which period begins
to run.
...
123. To set aside a decree
Thirty
days

The date of the decree or where
passed ex parte or to re-hear

the summons or notice was not
an appeal decreed or heard

duly served, when the applicant
ex parte.

had
knowledge of the decree.

Explanation- For the purpose of
this article, substituted service
under Rule 20 of Order V of the
Code of Civil Procedure, 1908
(5 of 1908) shall not be deemed
to be due service."

20. Thus, Article 123 provides 30
days time for filing application to set aside
the ex-parte decree from the date of the
decree or where the summons or notice was
264 INDIAN LAW REPORTS ALLAHABAD SERIES
not duly served, when the applicant had
knowledge of the decree.

21. It would be apt to refer the
judgement of Apex Court in the case of
Ramesh Chand Sharma Vs. Udham Singh
Kamal and Others 1999 (8) SCC 304
where Apex Court had set aside the
judgement
of
Central
Administrative
Tribunal
whereby
the
Central
Administrative Tribunal had allowed the
original application without condoning the
delay in filing the original application
which was admittedly filed after the period
of limitation. Paragraph 6 & 7 of the
judgement is extracted hereinbelow:-

"6. Learned Counsel for the first
respondent
urged
that
after
his
representation
was
rejected
by
the
Himachal Pradesh Government on 2nd
July,
1991.
he
had
made
another
representation pointing out the factual
position and, therefore, the period of
limitation needs to be counted not from 2nd
July, 1991 but from the date of rejection of
his
second
representation
(no
date
mentioned). He also urged that the vacancy
arose because one Shri Sita Ram Dholeta
who was holding the post and working as
Translator-cum- Legal Assistant went on
deputation in March, 1990 by keeping a
Hen on the said post. This respondent was
under a bonafide belief that until the lien
comes to an end, there may not be a clear
vacancy and, therefore, as and when such
vacancy arises, his claim would be
considered. It is in these circumstances, he
did not file O.A. at an early date. If there be
any delay, the same may be condoned.

7. On perusal of the materials on
record and after hearing counsel for the
parties, we are of the opinion that the
explanation sought to be given before us
cannot be entertained as no foundation
thereof was laid before the Tribunal. It was
open to the first respondent to make proper
application under Section 21(3) of the Act
for condonation of delay and having not
done so, he cannot be permitted to take up
such contention at this late stage. In our
opinion, the O.A. filed before the Tribunal
after the expiry of three years could not
have been admitted and disposed of on
merits in view of the statutory provision
contained
in
Section
21(1)
of
the
Administrative Tribunals Act, 1985. The
law in this behalf is now settled, (see
Secretary to Government of India and
Others v. Shivam Mahadu Gaikwad, [1995]
Supp. 3 SCC 231)"

22. The S.D.M, Fatehpur while
allowing the application under Order 9
Rule 13 of C.P.C has failed to appreciate
that the application of the petitioners under
Order 9 Rule 13 of C.P.C. was not
maintainable
in
absence
of
delay
condonation application. Further, even in
application under Order 9 Rule 13 of C.P.C,
the petitioners have not averred any fact
explaining
the
delay
in
filing
the
application under Order 9 Rule 13 of C.P.C
nor they had disclosed the date of
knowledge of the ex-parte judgement.

23. The respondent no.2 has raised the
issue of maintainability of application
under Order 9 Rule 13 of C.P.C being
barred by time and further, summons were
duly served upon the petitioners. The
aforesaid
objections
raised
by
the
respondent no.2 were not dealt by S.D.M.,
Fatehpur in allowing the application under
Order 9 Rule 13 of C.P.C. Thus, this Court
finds that S.D.M, Fatehpur has committed
jurisdictional error in allowing application
under Order 9 Rule 13 of C.P.C. without
there being any proper application for
condonation of delay which has been
6 All. Abul Hasan & Ors. Vs. Additional Commissioner (Second), Allahabad Division & Ors.
265
rightly corrected by the revision court in
exercise of its revisional power. Thus, the
order of the revision court is based on
settled principles of law and there is no
illegality or infirmity in the said order.

24. As regards the objection of the
petitioners that once the cost of Rs.300/- is
accepted by counsel for respondent no.2, it
is not open to respondent no.2 to challenge
the said order. In this regard, it would be
worth to refer two judgements of Apex
Court namely, Himalayan Cooperative
Group Housing Society Vs. Balwan Singh
2015 (7) SCC 373 and Director of
Elementary Education Odisha & Others
Vs. Pramod Kumar Sahoo 2019 (10) SCC
674 relied upon by the learned counsel for
the respondents which deals with the
clients and lawyers relationship.

25. Paragraph 23 of the judgement of
Apex Court in the case of Himalayan
Cooperative
Group
Housing
Society
(supra) is being extracted hereinbelow:-

"23. Apart from the above, in our
view lawyers are perceived to be their
client's agents. The law of agency may not
strictly apply to the client - lawyer's
relationship as lawyers or agents, lawyers
have certain authority and certain duties.
Because lawyers are also fiduciaries, their
duties will sometimes more demanding than
those imposed on other agents. The
authority-agency status affords the lawyers
to act for the client on the subject matter of
the retainer. One of the most basic
principles of the lawyer-client relationships
is that lawyers owe fiduciary duties to their
clients. As part of those duties, lawyers
assume all the traditional duties that agents
owe their principals and, thus, have to
respect the client's autonomy to make
decisions at a minimum, as to the
objectives of the representation. Thus,
according to generally accepted notions of
professional responsibility, lawyers should
follow the client's instructions rather than
substitute their judgment for that of the
client. The law is now well settled that a
lawyer must be specifically authorised to
settle and compromise a claim, that merely
on the basis of his employment he has no
implied or ostensible authority to bind his
client to a compromise/ settlement. To put it
alternatively that a lawyer by virtue of
retention, has the authority to choose the
means for achieving the client's legal goal,
while the client has the right to decide on
what the goal will be. If the decision in
question falls within those that clearly
belong to the client, the lawyers conduct in
failing to consult the client or in making the
decision for the client, is more likely to
constitute ineffective assistance of counsel"

26. Paragraphs 8 and 11 of the
judgement of Apex Court in the case of
Director of Elementary Education Odisha
(supra) relevant in the present case are
extracted hereinbelow:-

"8. Learned counsel for the
appellant submitted that the separate pay
scales are provided for Untrained Matric
Teachers (Rs.975-25-1, 150-E.B.-30-1,660)
and for Trained Matric Teachers (Rs.1,08030- 1,440-EB-30-1,800). Merely because
the respondent is intermediate, that is
higher qualification than the Matric, does
not make him a Trained Teacher. Therefore,
the concession given by the State counsel is
erroneous concession in law and, does not
bind the appellant. Reference was made to
Himalayan Coop. Group Housing Society v.
Balwan Singh & Ors.2 wherein, this Court
held as under:

"32. Generally, admissions of fact
made by a counsel are binding upon their
principals as long as they are unequivocal;
where, however, doubt exists as to a
266 INDIAN LAW REPORTS ALLAHABAD SERIES
purported admission, the court should be
wary to accept such admissions until and
unless the counsel or the advocate is
authorised by his principal to make such
admissions. Furthermore, a client is not
bound by a statement or admission which
he or his lawyer was not authorised to
make. A lawyer generally has no implied or
apparent authority to make an admission or
statement which would directly surrender
or conclude the substantial legal rights of
the client unless such an admission or
statement is clearly a proper step in
accomplishing the purpose for which the
lawyer was employed. We hasten to add
neither the client nor the court is bound by
the lawyer's statements or admissions as to
matters of law or legal conclusions...."

(Emphasis supplied)

9....

10....

11. The concession given by the
learned State Counsel before the Tribunal
was a concession in law and contrary to
the statutory rules. Such concession is not
binding on the State for the reason that
there cannot be any estoppel against law.
The rules provide for a specific Grade of
Pay, therefore, the concession given by the
learned State Counsel before the Tribunal
is not binding on the appellant".

27. In the aforesaid cases, the Apex
Court has held that if the act of advocate is
not in furtherance to accomplish the
purpose for which he has been engaged by
his client or against the statutory provisions
or rules, such an act of advocate would not
be binding upon the client. In the present
case, acceptance of cost by the advocate of
the respondent no.2 is not an act in
furtherance to accomplish the purpose for
which he was engaged and also in violation
of statutory provision as the application
under Order 9 Rule 13 of C.P.C. was
incompetent
in
absence
of
delay
condoantion application and any order
passed condoning the delay in filing the
aforesaid application. Thus, such an act of
respondent no.2 would not debar the
respondent no. 2 from challenging the order
of S.D.M., Fatehpur setting aside ex-parte
judgment and decree.