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2016 (6) TMI 1414 - HC - Indian LawsMaintainability of application - time limitation - Were the Courts below justified in dismissing the application filed under Order IX Rule 13 of Code of Civil Procedure on the ground of the delay of 431 days in filing the miscellaneous petition? - HELD THAT:- Both the Courts below failed to notice that the suit filed is in respect of immovable property and the rights of the parties should not be deprived only on the ground of technicality. When substantial justice and technical considerations are pitted against each other, only the substantial justice should prevail. Admittedly, in the present case there is delay of 431 days in filing the miscellaneous petition and if the delay is condoned it will no way prejudice the rights of plaintiff-respondent by giving right to the appellant to put forth his case and the petition will be decided on merits. In the present case, the appellant-defendant has explained the delay of 431 days in filing necessary application under Section 5 of Limitation Act stating that due to the ignorance of law and due to the fact that their advocate has been retired from the case without informing the stage of the suit and thereafter, the trial Court proceeded to pass an ex-parte judgment and decree, which clearly indicates in the judgment of the trial Court that the defendant was absent. The Courts below ought to have given an opportunity to the appellant-plaintiff to put forth his case by condoning the delay and decide the rights of the parties on merits. Mere dismissing the Misc. Petition on the ground of delay of 431 days would result in throwing out the appellant at the very threshold without considering the case on merits resulting in cause of justice being defeated - Admittedly in the present case, the mistake committed by the counsel for the defendant, the defendant should not suffer because of the default of his advocate. The Hon'ble Supreme Court in the case of RAFIQ AND ANOTHER VERSUS MUNSHILAL AND ANOTHER [1981 (4) TMI 255 - SUPREME COURT] while considering the delay in filing the application on account of the fault committed by the advocate on record has held that parties should not suffer. Admittedly, in the present case, the delay is 431 days and the rights of the parties in respect of immovable properties are involved and hence, the rights of the parties cannot be defeated by way of technicality - Therefore, the substantial question of law is answered in the negative holding that the Courts below were not justified in dismissing the Misc. Petition on the ground of delay - Application allowed.
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