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TANMOY (director)     03 November 2012

Condonation of delay and exparte

in a civil suit defendant did not appear and therefore was proceeded exparte but before the decree of suit defendant appeared and filed a petition to condone the delay in appearing without filing a petition to set aside the decision of court to proceed exparte. whether condonation for delay petition can be filed without filing petition to set aside order of the civil court in which civil court decided to proceed exparte?


 2 Replies

Vishal Gehrana (Advocate)     03 November 2012

The party of a suit is free to attend the proceedings even if the suit is going exparte against it. If he is doing that and attending the proceedings without filing an application for setting aside the exparte order under Order 9 rule 7 Civil Procedure Code, 1908, the court can note this fact and pass an exparte decree against him. The effect of an exparte order is that the written statement of the defendant will not be taken into account and he will not be allowed to give evidences on the same statments. Though he can participate in the final arguements, if he wants.

Here, in your case, as the defendant has not filied any application for setting aside an exparte order, the court will/should not set aside the exparte order passed against him. The application for condonation of delay under section 5 of Limitation Act has to filed to take the benefit of the provisions of Limitation Act and to extend the period of limitation already expited. Normally this application is to be filed with the main application for which the applicant wants to extend the limitation period. However, in your case, as the defendant has filed only condonation application, he will file the setting aside application once the court will allow the previous one. You can argue that both the applications must be filed together coz otherwise the defendant could unnecessarily delay the proceedings.

surjit singh (Assistant)     06 November 2012

In this case it appears that the the defendant has not appeared inspite of the formalities of substituted servisce of notice by giving  paper publicatioln etc is done. The defendant has got a right to appear before the court till the judgment is not  pronounced. In this case the defendant has not appered and so the order to proceed exparte has been passed. Now the queston is whether the defendant will be allowed to file his written statmnet, the period of filing WS is of 60 days and beyond that 60 days upto 90 days it is upon the court to fix a date for filing of the WS as per the Order VIII Rule 1. But the court has the power to accept the written statement it appears to the court that a reasonable explanation has been made for the delay. If you have a good case and if you go much deeper into these technicalities the decision in the suit will be delayed.

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