Case Note & Summary
The petitioners, legal representatives of Sardar Himmatbhai Khokar, filed a Regular Civil Suit No.794 of 2002 seeking cancellation of a sale deed dated 30.01.1970, alleging it to be bogus, concocted, and fraudulent. After issues were framed on 26.12.2016, the plaintiffs failed to appear to lead evidence, and the suit was dismissed for default under Order 9 Rule 8 of the Code of Civil Procedure, 1908 on 15.10.2018. The plaintiffs then filed a composite application under Section 5 of the Limitation Act, 1963 and Order 9 Rule 13 CPC for condonation of delay and setting aside the dismissal. The learned trial court rejected this application, leading the petitioners to approach the Gujarat High Court under Articles 226 and 227 of the Constitution of India. The petitioners contended that their advocate did not remain present during trial and failed to inform them of the suit's progress, resulting in their non-appearance. The High Court held that the negligence of the counsel constitutes sufficient cause for condonation of delay and that the trial court ought to have liberally construed the term 'sufficient cause' to advance substantial justice. The court quashed the trial court's order dated 28.10.2021 and directed restoration of the suit to its original status, allowing the petitioners to proceed with the litigation.
Headnote
A) Civil Procedure - Condonation of Delay - Sufficient Cause - Section 5 of Limitation Act, 1963 - The court held that the negligence of the counsel in not appearing and not informing the plaintiffs about the progress of the suit constitutes sufficient cause for condonation of delay. The court emphasized that a litigant should not suffer for the default of his advocate and that the term 'sufficient cause' should be liberally construed to advance substantial justice. (Paras 5-8) B) Civil Procedure - Setting Aside Ex Parte Decree - Order 9 Rule 13 of Code of Civil Procedure, 1908 - The court held that when a suit is dismissed for default under Order 9 Rule 8 CPC, the plaintiff can apply under Order 9 Rule 13 CPC to set aside the dismissal if he shows sufficient cause for his non-appearance. The court found that the petitioners had shown sufficient cause as they were unaware of the dismissal due to their counsel's negligence. (Paras 4-8) C) Constitutional Law - Supervisory Jurisdiction - Articles 226 and 227 of Constitution of India, 1950 - The court exercised its supervisory jurisdiction to quash the order of the trial court rejecting the composite application, as the trial court had failed to consider the principles of liberal construction of sufficient cause and the fact that the petitioners were not at fault. (Paras 1, 9)
Issue of Consideration
Whether the learned trial court erred in rejecting the composite application under Section 5 of the Limitation Act, 1963 and Order 9 Rule 13 of the Code of Civil Procedure, 1908 for condonation of delay and setting aside the dismissal of the suit for default under Order 9 Rule 8 CPC, and whether the petitioners have made out sufficient cause for the delay and non-appearance.
Final Decision
The High Court allowed the petition, quashed the order dated 28.10.2021 passed by the learned 5th Additional Civil Judge, Vadodara in Civil Misc. Application (Delay) No.1 of 2020, and directed restoration of Regular Civil Suit No.794 of 2002 to its original status.
Law Points
- Negligence of counsel constitutes sufficient cause for condonation of delay
- Liberal construction of sufficient cause under Section 5 of Limitation Act
- 1963
- Order 9 Rule 13 CPC - setting aside ex parte decree
- Order 9 Rule 8 CPC - dismissal for default
- Articles 226 and 227 of Constitution of India - supervisory jurisdiction
