Gross negligence on the part of a litigant in the conduct of litigation, including the filing of an appeal, cannot be condoned under Section 5 of the Limitation Act.

1. - This appeal under Order 43, Rule 1 (d) CPC has been filed against the order dated 19.04.2010 passed by the Additional District Judge No. 1, Bhilwara camp Gangapur, whereby, the application filed by the appellant under Order 9, Rule 13 CPC was rejected. This appeal is time barred by 649 days and an application under Section 5 of the Limitation Act has been filed seeking condonation of delay in filing the appeal.

2. In the said application, it has been contended that the ex-parte decree was passed by the trial court on 13.07.2005, for which, information was not given to him nor the counsel informed him about the same. He came to know about the said ex-parte decree dated 13.07.2005 on 23.03.2007 when in pursuance of the execution launched by the plaintiff the process server came to him. As the application under Order 9, Rule 13 CPC was barred by time, the application under Section 5 of the Limitation Act was also moved. It was then stated in the application that the said application under Order 9, Rule 13 CPC was dismissed by the trial court on 19.04.2010. The counsel engaged by the appellant did not appear in the matter and another counsel appeared in the matter at the camp Court, who did not inform the appellant about the order dated 19.04.2010 and even the counsel engaged by him also did not inform him about the said order. It is claimed that again when the execution proceedings were started and the process server of the executing court visited the appellant, in the first week of February, 2012, he came to know about the dismissal of application under Order 9, Rule 13 CPC. Thereafter certified copies were obtained and counsel was contacted at Jodhpur, who instructed him to bring certain more documents and record and after collecting the same the appeal was prepared and filed. Ultimately, it was claimed in the application that the delay in filing the appeal had occurred unintentionally and there is sufficient cause within the meaning of Section 5 of the Limitation Act for condonation of delay in filing the appeal. It was also submitted in the application that when technical/procedural irregularities and substantial justice are pitted out against each other, the cause of later has to be sustained and as the appellant has a very good case on merits, the same may not be thrown out for 'short' and unintentional delay in filing the appeal.

3. Notices of Section 5 of the Limitation Act were issued to the respondent-plaintiff.

4. It was contended by counsel for the appellant that the delay in filing the appeal deserves to be condoned, as on both the occasions, when the decree was passed ex-parte and when the application under Order 9, Rule 13 CPC was rejected, the counsel did not inform the appellant and, on both the occasions, it was when the process server from the executing court approached him, that he became aware of passing of the ex-parte decree as well as the rejection of application under Order 9, Rule 13 CPC.

5. It was contended that the Court should decide the matter on merit by giving the expression 'sufficient cause', a pragmatic justice-oriented approach as held by the Hon'ble Supreme Court in the case of Union of India v. Giani, reported at 2011 AIR SCW 1388 and that litigant cannot be penalised for the default of an Advocate by relying on a judgment of this Court in the case of Narayan Lal Bagra & Anr. v. Hanuman Sharma & Ors., reported at 2008 (1) DNJ (Raj.) 344 .

6. On the other hand, it was contended by learned counsel for the respondent that the delay of 649 days cannot be condoned on mere asking. The appellant has failed to point out any sufficient cause for delay in filing the appeal. It was also submitted that the entire conduct of the litigation proves beyond doubt that the appellant has been quite negligent in prosecuting the litigation and, therefore, he is not entitled for any relief from this Court.

7. Having considered the rival submissions made at the Bar by learned counsel for the parties and