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Sultan And Others v. District Judge, Bijnor And Others - WRIT - C No. 18869 of 1998  RD-AH 14434 (23 August 2007)
Court No. 35
Civil Misc. Writ Petition No. 18869 of 1998
Sultan and others Vs. District Judge, Bijnor and others
Hon. Dilip Gupta, J.
This petition has been filed for quashing the order dated 26.5.1997 passed by the learned Ist Additional Civil Judge( Junior Division) Bijnor whereby the application filed by petitioner Nos. 1 and 2 under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the 'CPC') filed along with an application under Section 5 of the Limitation Act for setting aside the ex parte decree against the defendants was rejected. The order passed by the learned District Judge, Bijnor by which the Revision against the aforesaid order was dismissed, has also been challenged in this petition.
The records of the writ petition indicate that Original Suit No. 443 of 1989 was instituted by private respondent No.3 Hanif against the petitioners for cancellation of the sale-deed dated 25.4.1989. The defendants were Irfan and Furqan (petitioner Nos. 3 and 4) and Sultan and Gulfam (petitioner Nos. 1 and 2).The said Sultan and Gulfam were minors. An application was, accordingly, moved by the plaintiff under Order 32 Rule 3 CPC for appointment of a guardian by the Court. This application was allowed by the Court and the mother of the minors Smt. Hamidan was appointed as the guardian by the Court. The defendants did not file any written-statement and nor they contested the Suit. It was ultimately decreed ex parte on 8.1.1993.
An application under Order 9 Rule 13 CPC together with an application under Section 5 of the Limitation Act was moved on 30.9.1994 on behalf of the two minors under the guardianship of their uncle Hasinuddin. The Court rejected the application filed under Section 5 of the Limitation Act on the ground that there was unexplained delay of more than one year and eight months. Civil Revision No. 63 of 1997 was, however, filed by all the four defendants. The Revisional Court noticed that Irfan and Furqan had also joined as revisionists even though they had not filed any application under Order 9 Rule 13 CPC for setting aside the ex parte decree. The Revisional Court also noticed that Hasinuddin had no locus to file the Revision as a guardian of the minors since he was not the natural guardian and nor was he appointed by the Court particularly when there was no allegation that the guardian appointed by the Court, Smt. Hamidan who was the mother of the minors had any interest adverse to the interest of the minors. The Revisional Court also noticed that though the payment towards the sale-deed had been made by Irfan and Furqan but it was surprising that they had not filed any application under Order 9 Rule 13 CPC to set aside the decree and proceedings under Order 9 Rule 13 CPC had been started after more than one year and eight months at the behest of the minors. In such circumstances, the Court found no error in the view taken by the learned Ist Additional Civil Judge in dismissing the application under Section 5 of the Limitation Act.
I have heard the learned counsel for the petitioners and have perused the materials available on record.
The application under Order 9 Rule 13 CPC had been rejected as the application filed under Section 5 of the Limitation Act had been rejected. Learned counsel for the petitioner did not address the Court on the application filed under Section 5 of the Limitation Act and merely submitted that the trial Court committed an error in appointing Smt. Hamidan, the mother of the minors, as their guardian. In my opinion, this issue can be considered only if the application under Section 5 of the Limitation Act is allowed because it is only under such circumstances that the application under Order 9 Rule 13 CPC can be heard on merits. The reasons given by the Courts below in rejecting the application filed under Section 5 of the Limitation Act do not suffer from any infirmity.
The writ petition is, accordingly, dismissed. Interim order, if any, stands vacated.
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