Case Note & Summary
The appellant, Communidade of Malcornem, filed an Appeal from Order No. 19 of 2014 in the High Court of Bombay at Goa, challenging an order passed by the Lower Appellate Court in Civil Miscellaneous Application No. 143/2012. The Lower Appellate Court had dismissed the appellant's application for condonation of delay in filing an application to set aside an ex-parte decree passed against it. The appellant contended that the decree under challenge before the Lower Appellate Court was in its favour, but the respondents had filed an appeal. Summons were issued to the appellant but were served on the Administrator of the Communidade, who was based in Margao. The Administrator returned the summons stating there was no time to inform the appellant, and consequently, the appellant was not informed about the appeal. As a result, the appeal proceeded ex-parte and a decree was passed against the appellant. The appellant argued that the delay in filing the application to set aside the ex-parte decree was due to the Administrator's failure to inform, which constituted sufficient cause. The High Court, after hearing both sides, found that the appellant had made out a case for condonation of delay. The Court observed that the Administrator's action of returning the summons without informing the appellant was not attributable to the appellant. Therefore, the Court allowed the appeal, set aside the impugned order, and directed the Lower Appellate Court to decide the application to set aside the ex-parte decree on its own merits, after giving an opportunity of hearing to both parties. The Court also directed the Lower Appellate Court to dispose of the application within three months from the date of receipt of the order.
Headnote
A) Civil Procedure - Condonation of Delay - Sufficient Cause - Section 5 of Limitation Act, 1963 - The appellant, a Communidade, challenged the dismissal of its application for condonation of delay in filing an application to set aside an ex-parte decree passed by the Lower Appellate Court. The Court held that the Administrator's failure to inform the appellant about the summons constituted sufficient cause for the delay, as the appellant was not at fault. The Court set aside the impugned order and directed the Lower Appellate Court to decide the application to set aside the ex-parte decree on merits, after giving an opportunity of hearing to both parties. (Paras 4-6)
Issue of Consideration
Whether the Lower Appellate Court erred in dismissing the application for condonation of delay filed by the appellant to set aside the ex-parte decree, on the ground that the appellant had sufficient cause for the delay.
Final Decision
The High Court allowed the appeal, set aside the impugned order, and directed the Lower Appellate Court to decide the application to set aside the ex-parte decree on merits, after hearing both parties, within three months.
Law Points
- Condonation of delay
- Sufficient cause
- Ex-parte decree
- Service of summons
- Administrator's duty to inform
