Suneet Kumar, J. - (1.) Sri Chetan Chatterjee, Advocate has put in appearance on behalf of the fourth and sixth respondent.
(2.) The defendant-applicants have approached this Court assailing the order dated 20 November 2015 passed by the revisional court/Additional District Judge, Devband, Saharanpur in Civil Revision No.40 of 2013 [Ram Kumar & others v. Monu (minor) & others] arising from order dated 13 December 2012 passed by the trial court rejecting Section 5 application along with an application under Order 9, Rule 13 C.P.C.
(3.) The revisional court noted in the impugned order that the defendant-applicants no. 1 to 4 were contesting the suit instituted for cancellation of sale-deed, the fifth applicant never put in appearance nor filed written statement, therefore, the trial court proceeded ex parte against the fifth respondent on 21 August 2000. On 6 November 2003 the applicants absented in the suit proceedings, therefore, an order was passed to proceed ex parte, thereafter, the suit was decreed on 5 August 2005. All the five applicants filed a common application under Section 5 of the Limitation Act and under Order 9, Rule 13 CPC, stating that they were advised by their counsel that whenever their presence is required, they will be informed, therefore, they did not participate in the proceeding. The trial court rejected the application which was affirmed in revision. In my opinion, the courts below were justified in rejecting section 5 application, consequently, the application under Order 9, Rule 13 . The reason assigned is not sufficient to state that litigant would not appear merely on the advise of their counsel, further, a common application could not have been filed by all the applicants as the reason for the fifth respondent for not appearing in the suit proceeding has not been stated. The reason assigned would not be applicable upon the fifth respondent as he never engaged a counsel nor participated in the proceeding, as such, the application that was filed to condone the delay appears to be misconceived.;