Summary
After the defendants' applications under Order IX Rule 13 CPC to set aside an ex parte decree for specific performance had failed finally (the Supreme Court having dismissed their SLPs on the ground that the delay was not properly explained), they filed a first appeal under Section 96(2) CPC with a 1116-day delay, which the first appellate court refused to condone but the High Court in revision condoned relying on N. Mohan v. R. Madhu. The Supreme Court set aside the High Court's order: N. Mohan was distinguishable because the defendants here had been duly served and had filed a written statement, and reiterating grounds for delay already held insufficient in the earlier round, merely under a different provision, is an abuse of process.
Issues
- Whether a delay of 1116 days in filing a first appeal under Section 96(2) CPC against an ex parte decree should be condoned where the same grounds had been raised and rejected, up to the Supreme Court, in the earlier applications under Order IX Rule 13 CPC.
- Whether the High Court rightly relied on N. Mohan v. R. Madhu to condone the delay.
- Whether the time spent in prosecuting the Order IX Rule 13 proceedings had to be excluded under Section 14 of the Limitation Act, 1963.
Provisions considered
- Order IX Rule 13, Code of Civil Procedure, 1908The defendants' earlier applications to set aside the ex parte decree, filed with applications to condone delays of 712 and 467 days, were allowed by the trial court but reversed by the High Court in revision, and the Supreme Court dismissed the SLPs holding the delay was not properly explained. The grounds then urged (that the non-appearance was neither wilful nor wanton) were the very grounds repeated in the later application to condone the delay in filing the appeal. (¶¶ 5, 6, 27, 28, 30)
- Section 96(2), Code of Civil Procedure, 1908An appeal lies from an original decree passed ex parte. Maintainability of the appeal was not in dispute; the only question was whether the enormous delay in filing it could be condoned without proper explanation. (¶¶ 7, 10, 12, 13)
- Order XLI Rule 3A read with Section 151, Code of Civil Procedure, 1908An appeal presented after limitation must be accompanied by an application showing sufficient cause for the delay. The first appellate court dismissed the defendants' application to condone the 1116-day delay; the Supreme Court concurred with that order. (¶¶ 7, 24, 27)
- Section 5, Limitation Act, 1963An appeal or application may be admitted after the prescribed period only on sufficient cause. The grounds offered had already been held insufficient to constitute sufficient cause when the Supreme Court dismissed the SLPs in the Order IX Rule 13 round; repeating them without fresh material could not be entertained, and delay is not to be condoned as an act of generosity. (¶¶ 9, 29, 30, 31, 32)
- Section 14, Limitation Act, 1963The defendants argued that the time spent prosecuting the Order IX Rule 13 petition and revisions had to be excluded. Having found the reasons for the delay insufficient, the Court declined to go into the Section 14 contentions. (¶¶ 18, 33)
Held
- N. Mohan v. R. Madhu, on which the High Court relied, was distinguishable: there the summons had been sent to an old address and returned unserved before the ex parte decree, whereas here the defendants were duly served, entered appearance and filed their written statement, submitting to the trial court's jurisdiction, and then chose not to appear. Reliance on N. Mohan led to a misappreciation of the facts, and the High Court's order was perverse and not in conformity with legal principles. (¶¶ 25, 26)
- The defendants raised in the application to condone the 1116-day delay the very same grounds that had been raised in their Order IX Rule 13 condonation applications, which the High Court rejected in revision and this Court affirmed by dismissing the SLPs after a reasoned consideration of the evidence, holding the delay not properly explained and the grounds insufficient to constitute sufficient cause under Section 5 of the Limitation Act. An order of this Court passed upon judicial consideration attains finality unless set aside through appellate or review mechanisms. (¶¶ 27, 28, 29)
- Repeating grounds already scrutinised and held untenable, without any fresh or additional material, amounts to an abuse of the process of law. Although applications for condonation may be filed under different provisions, these provide concurrent remedies through different mechanisms; once an application under one provision has been dismissed by a competent court on a finding that the reasons for delay were insufficient, a subsequent application under a different provision reiterating the same grounds cannot be entertained. (¶ 30)
- In considering a plea for condonation of delay, the court's first duty is to ascertain the bona fides of the explanation offered rather than start with the merits of the main matter; only where the cause shown and the opposition to it are equally balanced may the court look at the merits for the purpose of condoning the delay. Delay should not be condoned merely as an act of generosity, and the pursuit of substantial justice must not come at the cost of prejudice to the opposing party. (¶¶ 31, 32)
- Once the reasons given for the delay were found insufficient, the Court declined to go into the defendants' contentions under Section 14 of the Limitation Act, 1963. (¶ 33)
Result
Appeal allowed. The High Court's order dated 25.04.2023 in C.R.P.(MD) No. 1113 of 2023 condoning the delay of 1116 days set aside; the first appellate court's order dated 08.02.2023 refusing condonation stands. Pending applications disposed of.