Case Note & Summary
The petitioners, original defendants in Regular Civil Suit No. 8 of 1997, were subjected to an ex-parte decree passed by the Civil Judge, Junior Division, Satana, District Nashik on October 23, 2002. Aggrieved, they preferred an appeal which was delayed by 529 days. Consequently, they filed Civil Miscellaneous Application No. 29 of 2004 for condonation of delay. The IIIrd Ad-hoc Additional District Judge, Malegaon dismissed the application on July 16, 2005, holding that there were no sufficient grounds to condone the delay. The petitioners then approached the Bombay High Court by way of a writ petition. The High Court noted that both counsel admitted the impugned judgment was passed based on averments in the delay condonation application and reply. The court considered the explanation for delay: the petitioners had initially approached the wrong forum, which contributed to the delay. The court held that the expression 'sufficient cause' under Section 5 of the Limitation Act should be liberally construed to advance substantial justice, especially when the delay is not attributable to mala fides or negligence. The court found that the First Appellate Court had not properly appreciated the explanation and that the petitioners had an arguable case on merits. The court also noted that the respondent could be compensated by costs. Accordingly, the High Court allowed the writ petition, set aside the order of the First Appellate Court, condoned the delay of 529 days subject to payment of costs of Rs. 2,000 to the respondent, and directed the First Appellate Court to hear the appeal on merits within six months.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Sufficient Cause - The court held that the expression 'sufficient cause' should be liberally construed to advance substantial justice, especially when the delay is not due to mala fides or negligence. The First Appellate Court's dismissal of the delay condonation application was set aside as it failed to consider the explanation that the petitioner was pursuing a remedy before the wrong forum. (Paras 4-6) B) Civil Procedure Code - Ex-Parte Decree - Appeal - Delay Condonation - Order IX Rule 13 - The court observed that the petitioner had an arguable case on merits and that the respondent could be compensated by costs. The delay of 529 days was condoned subject to payment of costs of Rs. 2,000 to the respondent. (Paras 5-6)
Issue of Consideration
Whether the First Appellate Court erred in dismissing the application for condonation of delay of 529 days in filing the appeal against an ex-parte decree, and whether the delay should be condoned in the interest of justice.
Final Decision
Writ petition allowed. The order dated July 16, 2005 passed by the IIIrd Ad-hoc Additional District Judge, Malegaon dismissing Civil Miscellaneous Application No. 29 of 2004 is set aside. The delay of 529 days in filing the appeal is condoned subject to payment of costs of Rs. 2,000 to the respondent. The First Appellate Court is directed to hear the appeal on merits within six months from the date of the order.
Law Points
- Condonation of delay
- Sufficient cause
- Liberal construction
- Section 5 Limitation Act
- Ex-parte decree
- Right of appeal
