The central legal point established in the judgment is that 'sufficient cause' for setting aside an ex-parte decree must be liberally construed and is a question of fact to be determined based on the varied and special circumstances of the case.

MANMOHAN, J.

I.A. 4957/2016

Keeping in view the averments in the application, the delay in filing the application under Order 9 Rule 13 CPC is condoned.

Accordingly, the application stands disposed of.

I.A. 4956/2016

1. Present application has been filed by the applicants/defendants under Order 9 Rule 13 CPC, for setting aside ex-parte decree dated 17th September, 2015.

2. Learned counsel for the applicants/defendant states that after receiving the summons in the plaintiff’s suit on 11th December, 2013, the law department of the defendant contacted the local advocate who assured the applicants/defendants that there was no merit in the matter and this Court would dismiss the suit due to lack of territorial jurisdiction. He states that relying on the said legal advise, the defendants did not enter appearance in the present suit.

3. He states that thereafter the applicants/defendants received notice on 14th March, 2017 of a letter dated 8th March 2017, which contained papers pertaining to execution petition being EC 5 of 2017 filed by the petitioners/respondents in the High Court of Kolkata for execution of decree dated 17th September, 2015.

4. Learned counsel for the applicants/defendants states that after receiving the notice for the execution petition the applicants/defendants contacted and consulted their present advocate on 4th April, 2017 and filed the instant application on 13th April 2017.

5. Learned counsel for the applicants/defendants submits that in the present case, the defendants were prevented by sufficient cause from appearing in the present suit. In support of his submission the learned counsel for the applicants/defendants relies on the judgment of the Hon’ble Supreme Court in G.P. Srivastava v. R.K. Raizadaand Others, (2000) 3 SCC 54. The relevant portion of the said judgment is reproduced herein below:-

“7. Under order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar fact and circumstances of each case. The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier……”

6. The plaintiff in his reply dated 17th August, 2017 stated that the application is barred under Section 5 of the Limitation Act, 1963 as the limitation for filing an application under Order 9 Rule 13 is 30 days. He states that the defendants were served summons for the suit on 11th December, 2013 and the defendants chose not to appear believing that the plaintiff’s suit would be dismissed. He also states that the application filed by the applicants/defendants shows deliberate and mala fide intent of applicants/defendants to delay the payment due to the plaintiff/respondent.

7. Having heard learned counsel for the parties, this Court is of the view that the applicant/defendants had knowledge of the plain