Case Note & Summary
The case involves a Second Appeal filed by Pushkaraj Wagh (appellant/original defendant) against an exparte decree passed in Spl. Civil Suit No. 22/2013 by the 3rd Civil Judge Sr. Divn., Aurangabad on 05.03.2015. The suit was filed by respondent No. 1, a registered partnership firm, seeking specific performance of an agreement to transfer leasehold rights in MIDC Plot No. K129, Waluj, Aurangabad. The appellant-defendant and respondent No. 2 (MIDC) were served but did not file written statements, leading to an exparte decree directing the appellant to execute a registered deed of assignment. The appellant filed a First Appeal along with an application for condonation of delay of 121 days (MARJI No. 239/2015) on 03.08.2015. The appellant contended that he was residing at Pune, his lawyer did not communicate the stages of the case or the disposal, his father (a retired IAS officer aged 78) was dependent on him, and he met with an accident, preventing him from attending court. He claimed he came to know about the decree only upon receiving a caveat notice on 04.06.2015. The first appellate court rejected the condonation application, leading to the present Second Appeal. The High Court admitted the appeal on the substantial question of law: whether the first appellate court erred in not following settled principles of law while rejecting the application for condonation of delay. The High Court held that the first appellate court failed to adopt a liberal approach and that the appellant had shown sufficient cause for the delay. The court set aside the impugned order and directed the first appellate court to decide the appeal on merits after condoning the delay, with no order as to costs.
Headnote
A) Civil Procedure - Condonation of Delay - Section 5 of Limitation Act, 1963 - Sufficient Cause - The first appellate court rejected the application for condonation of delay of 121 days filed by the appellant-defendant against an exparte decree. The appellant contended that he was residing at Pune, his lawyer did not inform him about the stages, his father was a senior citizen dependent on him, and he met with an accident. The High Court held that the first appellate court erred in not considering the explanation liberally and that the delay was not due to wilful neglect. The court set aside the order and directed the first appellate court to decide the appeal on merits after condoning the delay. (Paras 1-10) B) Civil Procedure - Exparte Decree - Setting Aside - Order 9 Rule 13 CPC - The appellant-defendant sought to challenge an exparte decree passed in Spl. Civil Suit No. 22/2013. The High Court observed that the first appellate court should have adopted a liberal approach in condoning the delay to decide the matter on merits rather than on technicalities. (Paras 3-10)
Issue of Consideration
Whether the first appellate Court erred in not following settled principles of law while rejecting the application for condonation of delay?
Final Decision
The High Court allowed the Second Appeal, set aside the order of the first appellate court rejecting the condonation application, and directed the first appellate court to decide the First Appeal on merits after condoning the delay. No order as to costs.
Law Points
- Condonation of delay
- sufficient cause
- liberal approach
- exparte decree
- substantial question of law
