The test for condonation of delay in an appeal and under Order 9 Rule 13 of the CPC is stringent, and the plaintiff's readiness and willingness to pay the balance sale consideration is crucial as per Section 16(c) of the Specific Relief Act, 1963.

RAJIV SAHAI ENDLAW, J.

1. This appeal impugning the ex parte judgment and decree (dated 22.01.2010 of the Court of Additional District Judge-01, North, Delhi in CS No.242/2009 filed by the respondent for specific performance of an Agreement of Sale) is accompanied with CM No.7455/2013 for condonation of 1155 days delay in filing the appeal.

2. Notice only of the application seeking condonation of delay in filing the appeal was issued and the counsel for the respondent / plaintiff has filed reply thereto. When the matter was listed on 19.08.2013, finding that the appellant / defendant had also applied under Order 9 Rule 13 of the CPC but which application had been dismissed by the learned Additional District Judge vide order dated 26.03.2013, it was enquired from the counsel for the appellant / defendant whether the appellant / defendant had preferred any remedy there against. The counsel for the respondent / plaintiff informed that the appellant had preferred FAO No.246/2013 against the order of dismissal of the application under Order 9 Rule 13 of the CPC but which appeal had also been dismissed vide order dated 29.05.2013. It was in these circumstances enquired from the counsel for the appellant whether not the scope of this appeal was confined only to the error if any in the judgment on the basis of ex parte pleadings and evidence and not on the ground of the appellant / defendant having been wrongfully proceeded against ex parte and which aspect at least as far as this Court is concerned had attained finality with the order dated 29.05.2013. Before the counsel for the appellant / defendant could reply, realizing that formal notice of the appeal had not been issued and the Trial Court record had not been requisitioned, a formal notice of the appeal also was issued subject to the decision on the application for condonation of delay, and the appeal was listed for hearing. Thereafter on 02.09.2013 it was informed that the appellant / defendant had preferred a Special Leave Petition to the Supreme Court against the order dated 29.05.2013 of this Court and which had also been dismissed.

3. It was the contention of the senior counsel for the respondent on 02.09.2013 that the grounds taken by the appellant / defendant in the application for condonation of 1155 days delay in preferring the appeal were the same as taken in the application under Order 9 Rule 13 CPC application and which had been dismissed and order whereon had attained finality till the Supreme Court and thus the delay on the same grounds could not be condoned. The counsel for the appellant / defendant had sought time to examine the Order 9 Rule 13 proceedings.

4. The counsel for the appellant / defendant has today argued. (i) that though the Order 9 Rule 13 application had also been filed beyond the period of limitation prescribed therefor but was not accompanied by any application under Section 5 of the Limitation Act, though the learned Additional district Judge had considered the Order 9 Rule 13 application on merits; (ii) that the tests to be applied in condoning the delay in preferring an application under Order 9 Rule 13 and in preferring an appeal would be different, with the test being more stringent in the former than the latter because the effect of condoning the delay in filing the application under Order 9 Rule 13 of the CPC is to set aside an ex parte decree whereas the effect of condoning the delay in preferring the appeal is only to allow consideration of the judgment and the decree on the basis of the records before the Trial Court. Reliance in this regard is placed on D.V.H. Industries Vs. Hartley Knits 176 (2011) DLT 106 (DB) where inspite of dismissal of an application under Order 9 Rule 13 of the CPC, the delay in preferring the appeal was condoned.

5. The learned Additional District Judge vide order dated 26.03.2013 dismissed the application filed by the appellant / defendant under Order 9 Rule 13 of the CPC finding / recording / holding:

(