Final Order 6

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 15 CA / 73/2026
AASHIF Vs. SHAHIN
01.08.2026
Present: Sh. Siyaram Sharma and Sh. Ashish, Ld. Counsel
for appellant.
Sh. D.K Singh, Ld. Counsel for respondent.
Present appeal has been filed against the impugned
order dt. 07.02.2026 vide which the application u/o 9 rule 13
CPC seeking setting aside of exparte order was dismissed.
The present appeal has been filed alongwith
application u/s 5 of Limitation Act for condonation of delay. Ld.
Counsel for appellant prayed that application be allowed as delay
in filing the appeal was not intentional but due to
misunderstanding.
The abovesaid application has been strongly opposed
by Ld. Counsel for respondent.
Arguments heard.
Considering the submission of appellant, application
stands allowed.
Now coming to the facts of the case, an application
u/o 9 rule 13 CPC were filed by the appellant set aside the
exparte order dt. 06.05.2019 as well as the exparte judgement dt.
26.09.2020. The abovesaid application was dismissed by Ld.
Trial Court observing that “the present court does not have the
power to recall its own exparte judgment”.
Ld. Counsel for appellant argued that the proceedings
in DV Matter is quasi-Civil in nature and hence the Ld. Trial
Court wrongly passed the impugned order observing that the
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court has no power to recall its own order. He also relied upon
certain judgments in this regard.
Per contra, Ld. Counsel for respondent opposed the
abovesaid application and stated that the proceedings in DV
matter are criminal in nature and therefore, the Ld. Trial Court
has rightly passed the impugned order.
Arguments heard. Record perused.
The Ld. Trial Court dismissed the abovesaid
application observing that the court has no power to review its
own order or judgment and did not decide the application on
merits. Here section 28 (2) of PWDV Act comes into picture,
which has been reproduced for easy reference:-
“ Section28 (2) of PWDV Act
(2) Nothing in sub-section (1) shall prevent the court from
laying down its own procedure disposal of an application
under section 12 under sub-section (2) of section 23.”
Section 28 (2) of PWDV, Act came into interpretation
before The Hon'ble High Court of Uttrakhand in a case titled
Nirmal Jeet Kaur Versus State of Uttrakhand [(2012) SCC Online
Uttrakhand 3356), in which, it was observed that:-
“ the proceeding under this Act is not trial of an offence
and rather proceedings are quasi civil in nature like section
125 of Cr.PC. The court has power to set aside an ex-parte
order Under Rule 7 Order IX and ex-parte judgment Under
Rule 13 order IX CPC on sufficient cause and similarly in
section 126 (2), an ex-parte order may be recalled by the
Ld. MM, so it cannot be said that this power cannot be
exercised by Ld. MM under section 28 (2) for setting aside
of any order under section 28 (2) or otherwise. This in-
terpretation of section made it clear that the provisions of
CPC may be made applicable on the proceedings under this
Act.”
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In view of the abovesaid case, it stands proved that
the court of Ld. MM dealing with cases under PWDV Act is
definitely authorized to lay down its own procedure to deal with
such complaints/ applications and this special procedure includes
an order of restoration of a complaint/ application by the way of
review or power of setting aside of ex-parte order/ judgment with
help of provisions under CPC.
Considering the above, I am the opinion that the
impugned order dated 07.02.2026 is liable to be set aside. Matter
is remanded back to the Ld. Trial court with direction to
reconsider the application U/O 9 R 13 CPC and dispose of the
same on merits, as per law, without being influenced by any
observation on facts made in this order. The opposite party/
respondent shall be at liberty to take all permissible grounds on
merit including the grounds taken before this court, as well.
The present appeal file be consigned to Record Room
after due compliance.
Trial Court Record be sent back with copy of this
order.
Parties are directed to appear before Ld. Trial Court
on 05.08.2026.
(VANDANA)
Addl. Sessions Judge-02(North)
Rohini Courts Delhi
01.08.2026
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