IMPORTANT POINT
Mistake of Counsel or ignorance of law on part of counsel cannot be ground for condonation of delay.

Bela M. Trivedi, J.— The precise question that falls for consideration before this court is as to whether delay occurred in filing the present appeal filed under section 96 of CPC, challenging the ex parte decree passed by the trial court should be condoned on the ground that the applicants-appellants (original-defendants)had filed an application under order 9, Rule 13 of CPC before the trial court for setting aside the same ex parte decree, which application ultimately came to be dismissed by the trial court?

2. A few facts, giving rise to the present application field under section 5 of the Limitation Act seeking condonation of delay occurred in filing the appeal are that the present respondent (original plaintiff) had filed a suit being No.4/2007(13/95)(42/1995) against the present applicants-appellants (original defendants) in the court of Addl. District Judge (Fast Track) No.7, Jaipur City, Jaipur (hereinafter referred to as the ‘trial Court’), on 17.01.1995. seeking specific performance of an agreement alleged to have been executed by the appellants in favour of the respondent on 29.11.1986 with regard to thc sale of the suit property described in para No.1 of the plaint. In the said suit, the summons were sought to be served on the appellants-defendants, however, the same were allegedly refused by the appellants and therefore the trial court passed an order on 13.08.1998 to proceed ex parte against the appellants. The trial court ultimately considering the evidence on record adduced by the respondent-plaintiff decreed the said suit, vide the judgment and decree date 18.08.2007. According to the appellants. They came to know about the said ex parte decree on 12.08.2008 and therefore they filed an application under Order 9, Rule 13 of CPC 20.10.2008 for setting aside the said ex parte decree. The said application of the appellants came to be dismissed by the trial court vide order dated 03.09.2011. The appellants thereafter have field the present appeal under Section 96 read with Order 41, Rule 1 of CPC challenging the judgment and decree dated 18.8.2007 passed by the trial court in the Civil Suit No.4/2007. Since there was a delay of about 1421 days in filing the appeal, the appellants have filed the present application under section 5 of the Limitation Act seeking condonation of the said delay.

3. The application seeking condonation of delay has been resisted by the respondent-plaintiff by filing the reply and the appellants have also filed the rejoinder to reply filed by the respondent.

4. It has been submitted by the learned counsel Mr. Ajeet Bhandari for the appellants that the appellants were pursuing the remedy under Order 9, Rule 13 of CPC by filing the application for setting aside the ex parte decree dated 18.08.2007 passed by the trial court and that the said application came to be dismissed only on 03.09.2011, which had caused delay in filing the present appeal under section 96 of CPC. Mr. Bhandari also submitted that the expression “sufficient cause” contained in section 5 of the Limitation Act should receive a liberal construction so as to advance the substantial justice, as propounded by the Apex court in the case of The State of West Bengal v. The Administrator, Howrah Municipality and others, AIR 1972 SC 749. According to Mr. Bhandari, after the passing of the ex parte decree by the trial court, there were two courses open to the appellants, one, by filing an application under Order 9 Rule 13 of CPC for setting aside the ex parte decree and the other, by filing a regular appeal under Section 96 of the CPC challenging the legality and validity of the said ex parte decree. He further submitted that there is no bar in any of the statutes against filing regular appeal under section 96 of CPC after the dismissal of application made under Order 9, Rule 13 of CPC and that the explanation contained in Rule 13 of Order 9 would come into play only when the appeal against a decree passed ex parte has been d