VERY IMPORTANT POINT
That the expression "sufficient cause" in Section 5 of the Limitation Act, 1963 must receive a liberal construction so as to advance substantial justice. In this case even though appellant was negligent but it was not gross negligence, or deliberate inaction or lack of bonafides on his part. The delay in setting aside ex-parte decree in forma paupris is being condoned subject to payment of exemplary costs of Rs. 50,000/- to be paid to opposite side within a period of 30 days.

Headnote:Civil Procedure Code, 1908-Order 33 Rule 1-Ex-parte decree in forma pauperis-Order 9 Rule 13-Application made to set it aside very late on coming to know that the person who was appearing on behalf of company left the service since 1994 because of death of his son and none has informed him about further proceeding in Court-Ex-parte decree passed on 17.9.1993-Knowledge was on 1997 during execution proceedings-Delay of 554 days-Application moved for condonation of delay u/s 5, Limitation Act to condone delay-Rejected-Revision also rejected-Appeal to Supreme Court-Whether delay should have been condoned? (Yes)-Whether ex-parte decree is liable to be set aside? (Yes)-Result-Appeal allowed subject to payment of heavy costs-Case law discussed-(Limitation Act, 1963-Section 5 and Article 123- Sufficient cause to condone delay).
       Held : In any case in which a decree is passed ex-parte, the defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the statute. (Para 7)
       Reviewing case law held, that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial Justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bonafide is not imputable to the party seeking condonation of delay. Law of Limitation has been enacted to serve the interests of justice and not to defeat it. (Para 9)
       In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex-parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well. Consequently, the appeal is allowed by setting aside the orders impugned. The appellant s application for condoning the delay and for setting aside the ex-parte decree shall stand allowed subject to payment of exemplary costs of Rs. 50,000/- to be paid to the opposite side within a period of 30 days. If the costs are not paid within the time specified, this appeal shall be deemed to have been dismissed and the ex-parte decree passed against the appellant revived. We may clarify that the costs awarded by this order are in addition to the amount of Rs.10,000/- deposited in this court for payment to the respondent vide order dated 3.11.2000. (Paras 10 & 11)

JUDGMENT

Sethi, J.-Leave granted.

2. The respondent-plaintiff filed a suit informa pauperis under Order 33 Rule 1 of the Code of Civil Procedure against the appellant and others praying therein for issuance of direction to the defendants to deliver vacant peaceful possession of the suit lands by removing the construction, if any, put on them. He further prayed that the defendants be directed to pay a sum of Rs. 75,000/- towards mesne profits upto 24th March, 1987 and thereafter at the rate of Rs. 5,000/- per month till the delivery of possession. The suit land was agricultural land comprised in Paimash No. 199, measuring 0-4-0 Cawny, Paimash No. 200, measuring 1-0-0 Cawny Paimash No. 201, measuring 0-5-4 Cawny, Paimash No. 273, measuring 0-4-0 Cawny, Paimash No. 281, measuring 0-4-0 Cawny, Paimash No. 286 measuring 0-4-0 Cawny, Paimash No. 0-10-0 Cawny, measuring in all 3-13-0 Cawny situate in No. 141 Kottivakkam village, Sidapet Taluk, Chingleput District bearing Patta No. 32.

3. In the aforesaid suit the appellant was defendant No.9. On his service, he appeared through his counsel in the trial Court.

4. On the basis of the pleadings before it, the trial Court framed the following issues:

"1. Whether the plaintiffs mother Chokkammal , the life estate holder under the regd. will dated 30.6.32 had any right to deal with the properties covered under the said will?

2. Are the alienations made by life estate holder would bind the plaintiff?

3. Is not the plaintiff entitled to question the alienation effected by the life estate holder would who had no right to effect any alienation?

4. Are the alienees bonafide purchaser?

5. To what relief the parties are entitled?

5. As the counsel for the appellant did not appear after 17.9.1993, and the other defendants did not contest the claim of the respondent, the trial court decreed the suit ex-parte vide its unreasoned judgment dated 5th March, 1996. It was contended by the appellant that the person who was appearing on behalf of the company left the service since 1994 because of death of his son and none has informed him about further proceedings in the Court.

6. Unaware of the passing of the decree against him, the appellant could not take any proceeding in the form of an appeal or for setting it aside. He came to know about the passing of the decree in 1997 only when he received the notice for execution proceedings initiated by the respondent in Execution Petition No. 118 of 1997. The appellant thereafter filed an application for setting aside the ex-parte decree along with an application for condoning the delay. The trial court rejected the prayer of the appellant for condoning the delay of 554 days in filing the application for setting aside ex-parte decree. Aggrieved by the order of the trial court, the appellant filed a revision petition in the High Court which was dismissed vide the order impugned in the present appeal.

7. In any case in which a decree is passed ex-parte, the defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the statute.

8. In construing Section 5 of the Limitation act, the court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The court has a discr

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2001 Supreme(SC) 1003

Cases Referred (4)