Gujarat HC Revives Tenant’s Delay Plea Against Ex-Parte Eviction Decree, Orders Fresh Merits Hearing

The petitioner’s suit for eviction had proceeded ex parte and resulted in an eviction decree.

He filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the decree, together with an application seeking condonation of delay.

The Small Cause Court rejected the delay application solely on the ground that the restoration application was not maintainable.

The petitioner challenged that rejection under Article 227 of the Constitution.

The respondents did not dispute the precedent relied on by the petitioner, but alleged that he had not complied with the High Court’s earlier direction to deposit mesne profits of ₹1,200 per month; the petitioner said he had deposited the amount regularly.

The petition was brought under Article 227 of the Constitution of India.

The petitioner’s application to set aside the ex parte decree was under Order IX Rule 13 CPC.

The Court referred to Prakash Chander Manchanda & Anr. v. Smt. Janki Manchanda, AIR 1987 SC 42, whose legal proposition the respondents did not dispute; the judgment does not set out that proposition in detail.

The Court’s operative procedural rule was that the delay application should be adjudicated on its own merits, rather than rejected solely on the stated ground that the restoration application was not maintainable.

The Trial Court had not examined the merits of the delay application and had rejected it solely because it considered the restoration application legally not maintainable.

The High Court regarded that approach as an egregious error, particularly since the underlying suit had proceeded ex parte and the parties did not contest the petitioner’s reliance on Prakash Chander Manchanda.

The High Court therefore set aside the rejection but left the merits of the delay application open for determination by the Trial Court.

Separately, because the parties disputed compliance with the mesne-profit deposit direction, the Trial Court was directed to verify the deposits first and allow one week to clear any shortfall before proceeding with the delay application.

The order dated 9 July 2021 was quashed and the delay application was restored to the Trial Court’s file for a fresh decision on its merits, after a reasonable opportunity of hearing and without being influenced by the earlier order or the High Court’s observations.

The Trial Court must first verify compliance with the mesne-profit deposit direction; if there is a shortfall, the petitioner must be given one week to pay it.

The delay application was to be decided as early as possible, preferably within three months of receipt of the High Court’s order.

The connected civil application was disposed of as no longer surviving; no order as to costs.