Himachal Pradesh High Court: Ajay Mohan Goel, J. allowed a petition for setting aside the order of dismissal of a civil suit, passed by the Court of Civil Judge (Senior Division).
In the instant case, the petitioner herein had filed a civil suit for specific performance of a contract which, vide an order dated 25-02-2014, stood dismissed in default for non-prosecution by the Court of learned Civil Judge (Senior Division). Aggrieved by the same, the petitioner in September 2014, filed an application under Order IX, Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 praying for recalling of the said order. This application along with the application filed under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the application for recalling the order, stood rejected by the Trial Court. The Trial Court while dismissing the said plea of the petitioner held that the application was filed for setting aside the order of dismissal of the suit in default after about seven months and no cogent explanation was given as to why the application could not be filed within a reasonable period. Hence, the present petition.
Counsels for the petitioner, Vivek Singh Attri and Abhinav Purohit, argued that the impugned order was not sustainable in the eyes of law as it was harsh. Also, the findings returned therein were not borne out from the record of the case. On the other hand, learned Counsels for the respondents, Ajay Sharma and Anandita Sharma, argued that there was no merit in the present petition as the trial court had rightly dismissed the applications which were filed after an inordinate delay and that too without any cogent explanation.
The Court termed the order of the trial court as “harsh” and observed that “Though, the application for setting aside the order vide which the suit was dismissed in default was filed after about seven months but such a delay cannot be said to be an inordinate delay”.
It was further opined that “the Court has to understand that whenever applications are filed by the parties for the purpose of explanation of delay, the Court cannot accept that each and every word contained in the application per se would be substantiated by the applicant, because it is common knowledge that majority of contents of such like applications are dictated on legal solicitation so given to the party concerned.” Taking a subtle view on such cases, the Court said, “In these circumstances, the Court has to be slightly sensitive and in case the delay is not that inordinate and the other party can be monetarily compensated, then the Court rather than following a hyper-technical approach has to follow an approach which is more humane and justice-oriented.”
In the light of the above, the Court quashed and set aside the impugned order.[Rama Nand v. Kuldeep Bansal, 2019 SCC OnLine HP 623, decided on 10-05-2019]