Pankaj Mithal, J.—Heard Sri Rajeev Kumar Srivastava, learned counsel for the petitioner and Sri K.P.S. Yadav for respondents no. 2, 3 and 4.
2. SCC Suit No. 12 of 2008 (Gaya Prasad Singh @ Harinath Singh and others v. Smt. Surajmani and others) was decreed on 06.08.2011.
3. The petitioner on 02.07.2015 applied for setting aside the aforesaid decree alleging it to be an ex-parte by filing an application under Order 9, Rule 13 CPC along with an application for condonation of delay in its filing.
4. The application of the petitioner to condone to delay in filing application under Order 9, Rule 13 CPC has been rejected by the order dated 18.03.2016.
5. The above order has been impugned by the petitioner by filing this petition under Article 227 of the Constitution of India.
6. The impugned order has been passed by Additional District Judge exercising powers of Small Causes Courts as such the order is revisable under Section 25 of the Provincial Small Causes Courts Act, 1887 by the High Court.
7. Notwithstanding the above alternative remedy, as the revisional power under Section 25 of the above Act and supervisory power under Section 227 of the Constitution of India are analogous and are exercisable by this Court, I have heard counsel for the parties on the merits of the petition.
8. The submission of learned counsel for the petitioner is that there was hardly a small delay in filing the application under Order 9, Rule 13 CPC from the date of the knowledge and as such the court below is not justifying in rejecting the same.
9. A bare perusal of the impugned order reveals that the aforesaid SCC Suit was decreed on 06.08.2011 after it was contested by the son of the petitioner Alok Kumar Mishra, who had put in appearance through Sri Mangala Prasad Pathak, Advocate.
10. The aforesaid Alok Kumar Mishra has even challenged the aforesaid judgement and decree on merits by filing a revision before the High Court which is pending.
11. This apart, there is another SCC Suit No. 20 of 2008 between the parties in respect of one adjoining shop. In the said case, the petitioner and his son Alok Kumar Mishra had put in appearance and filed vakalatnama through the same counsel Mangala Prasad Pathak.
12. In view of the aforesaid facts and circumstances, the court below held that it is next to impossible to believe that the petitioner had no knowledge of the filing of the present suit and the decree passed therein when the petitioner''s son contested the suit and both of them together are contesting the other suit jointly through the same advocate. Thus, the story that the petitioner acquired knowledge of the ex-parte decree on 19.04.2015 inspected the record on 25.05.2015 and thereafter on 02.07.2015 filed an application under Order 9, Rule 13 CPC is concocted and not acceptable.
13. In view of the aforesaid facts and circumstances of the case, as the decree alleged to have been passed ex-parte is dated 06.08.2011 and application under Order 9, Rule 13 CPC was filed on 02.07.2015 and the petitioner has been attributed knowledge of the proceedings of the suit and the decree from the very inception the delay is not small but of about four years and such the court below has rightly rejected the application under Section 5 of the Limitation Act filed for condoning the delay.
14. The facts of the case speaks much about the conduct and manner in which the petitioner had allowed the aforesaid suit to be decreed against him ex-parte after getting it contested by son itself. Accordingly, the petitioner is not entitle to any discretionary relief in the matter of condonation of delay either in the court below or by this Court.
15. The petition has no merit and is dismissed.
