Case Note & Summary
The respondent (original plaintiff) filed Regular Civil Suit No. 140/1997 for specific performance of contract against the appellant (original defendant). The suit was decreed ex parte on 04.09.1998. The appellant then filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) to set aside the ex parte decree, which was accompanied by a delay condonation application. The trial court rejected the delay condonation, but the appellant challenged that in Writ Petition No. 312/2004, which was allowed by the High Court on 27.04.2004. Thereafter, the Order IX Rule 13 application was heard on merits and dismissed on 29.08.2008. The appellant appealed that dismissal in M.C.A. No. 47/2008, which also failed. Meanwhile, the appellant also filed a regular civil appeal against the original ex parte decree, but with a delay of over 2 years. That appeal was accompanied by Miscellaneous Civil Application No. 201/2000 for condonation of delay. The learned Principal District Judge, Amravati, rejected the delay condonation application on 09.12.2009, holding that the appellant had not shown sufficient cause for the delay. The appellant then filed the present second appeal under Section 100 CPC, which was admitted on 10.03.2010 on substantial questions of law. The High Court, after hearing both sides, examined whether the lower appellate court erred in rejecting the delay condonation. The court noted that the appellant's explanation for the delay was that he was pursuing the remedy under Order IX Rule 13 and its appeal. However, the court held that the pendency of those proceedings does not automatically constitute sufficient cause for the delay in filing the regular appeal. The appellant could have filed the regular appeal simultaneously or after the Order IX Rule 13 proceedings, but he failed to do so and did not explain the entire period of delay. The court found that the lower appellate court had correctly exercised its discretion in rejecting the delay condonation, as the appellant had not made out a case of sufficient cause. Consequently, the second appeal was dismissed, and the order rejecting the delay condonation was upheld.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Sufficient Cause - The appellant sought condonation of delay of over 2 years in filing appeal against ex parte decree in a specific performance suit - The court held that the explanation of pursuing other remedies (Order IX Rule 13 application and its appeal) does not constitute sufficient cause for the entire delay, as the appellant ought to have filed the appeal simultaneously or explained the delay after those proceedings - Held that the lower appellate court's rejection of delay condonation was justified (Paras 5-8). B) Civil Procedure Code - Ex Parte Decree - Order IX Rule 13 - Remedy of Appeal - The appellant had filed an application under Order IX Rule 13 to set aside ex parte decree, which was dismissed, and the appeal against that dismissal also failed - The court noted that the appellant could have filed the regular appeal simultaneously or after the Order IX Rule 13 proceedings, but the delay in filing the appeal was not explained - Held that the mere pendency of other proceedings does not automatically condone delay in filing the main appeal (Paras 3-6).
Issue of Consideration
Whether the lower appellate court erred in rejecting the application for condonation of delay in filing the regular civil appeal against the ex parte decree, and whether the delay of over 2 years was sufficiently explained.
Final Decision
The second appeal is dismissed. The order dated 09.12.2009 passed by the learned Principal District Judge, Amravati, in Miscellaneous Civil Application No. 201/2000 rejecting the condonation of delay is upheld.
Law Points
- Condonation of delay
- Sufficient cause
- Limitation Act
- Section 5
- Order IX Rule 13 CPC
- Ex parte decree
- Second appeal
- Substantial question of law
