Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 3321 of 2021 Petitioner :- Ramgopal @ Gopal Respondent :- Anita Counsel for Petitioner :- Amit Kumar Rai
Hon'ble Ajit Kumar,J.
Heard learned counsel for the petitioner.
By means of this petition under Article 227 of the Constitution, the petitioner has challenged the order of the Principal Judge, Family Court, Varanasi dated 06.03.2021 passed in Misc. Case No.135 of 2003 on the ground that the court is proceeding to consider evidence on an application under Order IX Rule 13 CPC without condoning the delay under Section 5 of the Indian Limitation Act, 1963.
Counsel for the petitioner submits that the court has to record sufficient cause and condone the delay and then it should proceed to permit the party to lead evidence on the question of ex parte decree.
Upon perusal of the order of the Principal Judge, Family Court, Varanasi, it clearly transpires that earlier also the petitioner had approached this Court by moving a petition under Article 227 of the Constitution, being Matters under Article 227 No.914 of 2018 (Ramgopal @ Gopal Vs. Anita) with a plea that Section 5 application should be directed to be decided first. The Court observed that there was nothing wrong in deciding both the applications i.e. application under Section 5 of Limitation Act as well as the application under Order IX Rule 13 CPC together. However, before passing the final order and if the court below wants to condone the delay, it shall record sufficient cause for the same.
From the order impugned it clearly transpires that only evidence is being led under Order IX Rule 13, this Court had already permitted the Trial Court/Family Court to proceed to decide both the aforesaid applications together.
In such facts and circumstances, therefore, I do not find any justification to interfere with the order of the Principal Judge, Family Court dated 06.03.2021 as any interference would amount to sitting in appeal over the directions of this Court's earlier order, quoted in the order impugned itself.
This petition lacks merits and is accordingly rejected.
Order Date :- 27.7.2021 Shahroz