Alok Sharma, J. - (1.) THIS civil misc. appeal has been filed against the order dt. 18.11.1996, passed by the Additional District & Sessions Judge No. 3, Jaipur City, Jaipur dismissing an application filed by the appellant -defendant (hereinafter 'the defendant') under Sec. 5 of the Limitation Act seeking condonation of delay in filing an application under Order 9 Rule 13 CPC for setting aside an ex -parte decree dt. 18.05.1996. Heard the counsel for the defendant and perused the impugned order dt. 18.11.1996, passed by the trial Court.
(2.) THE facts of the case are that the respondent -plaintiff filed a suit for eviction sometime in the year 1992 inter alia on the ground of default. It transpires that in spite of service of notice on the defendant, written statement was not filed. In due course of time, the non -appearance of the defendant entailed proceedings being set ex -parte against him. An application under Order 9 Rule 7 CPC was filed before the trial Court, but without any avail. Provisional rent was thereafter determined under Sec. 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Directions therein for payment of rent during the pendency of the eviction petition were not complied with by the defendant consequent to which under Sec. 13(5) of the aforesaid Act, the defence of the defendant was struck off. Subsequently and finally ex -parte decree dt. 18.05.1996 came to be passed by the trial Court against the defendant and in favour of the plaintiff. An application under Order 9 Rule 13 CPC along with an application under Sec. 5 of the Limitation Act came to be filed on 13.01.1996. Condonation of delay was sought in moving the aforesaid application under Sec. 5 of the Limitation Act. Exercise of power under Sec. 5 of the Limitation Act is a discretionary power. No doubt to be judicially exercised in the overall facts of the case. In that context, the learned trial Court has in the impugned order taken into consideration that the ground proffered for delay in filing the application under Order 9 Rule 13 CPC was the defendant suffering a slipped disc. The trial Court found that oddly the defendant who allegedly availed homeopathic treatment for the aforesaid illness, had not filed any document in support thereof. No prescription was filed, nor any medicines even homeopathic which were used for the cure of illness were brought before the trial Court. Further it was not stated with any semblance of credibility how the defendant come to know of the ex -parte decree dt. 18.05.1996. The trial Court in the overall facts of the case took a view that there was no sufficient cause for the delay in filing the application under Order 9 Rule 13 CPC and consequently dismissed the application under Sec. 5 of the Limitation Act.
(3.) IN my considered opinion, in the overall facts of the case, the exercise of power of the trial Court under Sec. 5 of the Limitation Act being a discretionary power, it cannot be held that the trial Court has illegally or arbitrarily exercised its discretion in the instant case in refusing to condone the delay of fifteen days in filing the application under Order 9 Rule 13 C.P.C. The conduct of the defendant was contraindicative of his bona fide. That was enough for the trial Court to refuse the exercise of its discretion to condone delay. Consequently, I find no force in the civil misc. appeal. The same is dismissed.;