Delhi District Court
Sumit Butalia vs Jitender on 4 September, 2025
IN THE COURT OF MS. SHAGUN SHARMA
DISTRICT JUDGE-12 (CENTRAL)
TIS HAZARI COURTS, DELHI
___________________________________________________
CNR No. DLCT01-003729-2025
RCA DJ No. 47/2025
MEMO OF PARTIES
Mr. Sumit Butalia,
Proprietor of M/s T. S. Industries,
House No. 21, Ground Floor, Block D,
Jangpura Extension, New Delhi.
...Appellant
VERSUS
Mr. Jitender
Proprietor of M/s Shant Motors (India),
Having its Office at 275, Krishan Gali,
Chota Bazar, Kashmiri Gate, Delhi.
...Respondent
JUDGMENT ON APPEAL UNDER SECTION 96 R/W
ORDER XLI OF THE CODE OF CIVIL PROCEDURE, 1908
JUDGMENT
(1) Vide this judgment, this Court shall dispose of the Appeal filed on behalf of the Appellant under Section 96 read with Order XLI of the Code of Civil Procedure, 1908, assailing the impugned ex-parte judgment and decree dated 22.08.2015 passed by the Learned Court of Civil Judge-14, Central District, Tis Hazari Courts, Delhi, in Civil Suit No. 260/2015, whereby the suit was decreed ex-parte in favour of the Respondent/Plaintiff.
___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 1 of 11 Clarification of Party Designation (2) For the sake of clarity and consistency, the "Appellant" herein shall be referred to as the "Defendant", and the "Respondent" herein shall be referred to as the "Plaintiff", as per their original positions before the Ld. Trial Court.
Brief Factual Matrix (3) The Plaintiff instituted Civil Suit No. 260/2015 on 02.12.2014, titled M/s Shant Motors (India) v. M/s T.S. Industries, seeking recovery of a sum of Rs. 2,53,120/- along with interest @ 18% per annum. Vide order dated 09.12.2014, the Learned Trial Court was pleased to admit the suit and issued summons to the Defendant. As per the report of the process server, the summons were returned with the remark "refused." Relying on the said report, and treating refusal as deemed service, the Learned Trial Court, vide order dated 02.03.2015, proceeded ex-parte against the Defendant. Thereafter, ex-parte Plaintiff's evidence was led, arguments were heard, and the suit was decreed in favour of the Plaintiff vide judgment dated 22.08.2015.
(4) Subsequently, the Plaintiff initiated execution proceedings. The Defendant states that he came to know about the ex-parte decree only upon receiving summons in Execution Petition No. 457/2021 on 30.07.2022, which were served at his correct address. The Defendant then filed objections in the execution proceedings on 20.04.2023. These objections were dismissed by the Executing Court on 12.10.2023.
___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 2 of 11 (5) Thereafter, on 08.01.2024, the Defendant filed an application under Order IX Rule 13 CPC along with an application under Section 151 CPC seeking condonation of delay. The said application was dismissed on 27.08.2024 by the Learned Civil Judge-05, Central, Tis Hazari Courts, Delhi. (6) Thereafter, the Defendant has preferred the present Appeal on 26.03.2025 under Section 96 CPC against ex-parte judgment dated 22.08.2015.
Ground of Challenge (7) The appeal has been filed primarily on the grounds that the returned AD report dated 19.12.2014 allegedly showing refusal of summons does not mention the name or identity of the person who refused to accept service. Thus, it cannot be relied upon to hold valid service. The Defendant contends that the address mentioned in the plaint was incorrect, as he neither resides nor works for gain at Parwano, Himachal Pradesh. The decree has been passed against a proprietorship concern, which is not a legal entity, without impleading the proprietor by name.
Application for Condonation of Delay (8) Along with the appeal, the Defendant has filed an application under Section 151 CPC seeking condonation of delay of 920 days in filing the appeal. The relevant sequence of events as pleaded is as follows :
i. The Defendant came to know of the ex-parte decree only on 30.07.2022 when summons in the execution petition were served.
___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 3 of 11 ii. He filed objections in execution proceedings on 20.04.2023, which were dismissed on 12.10.2023.
iii. Thereafter, he filed an application under Order IX Rule 13 CPC on 08.01.2024, which was dismissed on 27.08.2024.
iv. The said order of dismissal of Application under Order 9 Rule 13 was not uploaded for a long time, compelling counsel to inspect the court file to ascertain its contents.
v. Subsequently, after obtaining legal opinion, the appeal was given for drafting to counsel. However, due to the counsel's marriage (scheduled for 24.11.2024), office non-functionality, and Counsel's medical problems, there was further delay.
vi. The appeal was ultimately filed on 26.03.2025 after improvement in the counsel's health.
(9) The Defendant submits that he has been bonafidely pursuing remedies in accordance with law under Order XXI Rule 23(2) CPC and Order IX Rule 13 CPC, and thus, is entitled to exclusion of time under Section 14 of the Limitation Act, 1963. Reliance has been placed on the judgments titled as M. K. Prasad Vs. P. Arumugam, N. Mohan Vs. R. Madhu, (2020) 20 SCC, Mohan Traders Vs. A.V.M. Cattle & Poultry Feeds Mfg. Industries. It is submitted that in N. Mohan v. R. Madhu, the Hon'ble Supreme Court condoned delay of 546 days in filing the appeal, holding that where a Defendant has been bonafidely pursuing remedy under Order IX Rule 13 CPC, time spent ___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 4 of 11 therein ought to be excluded so as not to deprive him of his statutory right of appeal.
Submissions on behalf of Plaintiff (Respondent) (10) At the outset, it is submitted that the present Appeal is hopelessly barred by limitation, and the Defendant has miserably failed to show any "sufficient cause" for condonation of the inordinate delay of 920 days. The application filed under Section 5 of the Limitation Act, 1963 is devoid of merits and is liable to be dismissed at the threshold. The plea that the order dated 27.08.2024 was not uploaded on the District Court website is false, frivolous, and untenable. A vigilant litigant could have easily inspected the judicial record or applied for a certified copy. The Defendant, however, chose to remain inactive. (11) It is further submitted that the plea that the Counsel's marriage on 24.11.2024 prevented filing of the appeal is wholly misconceived. Even if assumed to be correct, there remains a further delay of 123 days from the date of marriage until the filing of the appeal on 26.03.2025, which is unexplained. A prudent litigant could have engaged another counsel. The plea of counsel's ill health is also untenable. The medical records annexed merely disclose minor abdominal pain lasting 3-4 days and do not show any chronic or serious condition preventing drafting or filing of the appeal. The Defendant has utterly failed to demonstrate that he acted with due diligence. At no stage was the Defendant pursuing any remedy before a "wrong forum," which alone could trigger Section 14 of the Limitation Act. Instead, the Defendant has repeatedly ___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 5 of 11 delayed proceedings, acted negligently, and misused the process of law. The Defendant has failed to explain the delay of 920 days on a day-to-day basis, which is a settled requirement laid down by the Hon'ble Apex Court.
(12) Plaintiff has placed reliance on several precedents i.e. Civil Appeal No. 15793 of 2019 Ajay Dabra Vs Pyare Ram & Ors, Balwant Singh (Dead) Vs Jagdish Singh & Ors (2010) 8 SCC 685, Esha Bhattacharjee Vs Managing Committee of Raghunathpur Nafar Academy & Ors (2013) 12 SCC 649 and Office of the Chief Post Master General & Ors Vs Living Media India Ltd & Anr (2012) 3 SCC 563 holding that condonation of delay is not a matter of right but requires strict diligence. (13) Arguments were heard. This Court has carefully perused the Ld. Trial Court Record, Appeal, Written Submissions and Citations filed before this Court.
Judicial Analysis and Reasoning (14) Legislative intent of Section 5 Limitation Act:-
Section 5 of the Limitation Act, 1963 empowers the Court to condone delay if "sufficient cause" is shown. The legislative object is to balance two competing considerations- on the one hand, that a litigant with a genuine cause should not be non-suited merely on account of a technicality of limitation; and on the other hand, that there must be finality in litigation and a successful party should not be deprived of the fruits of his decree on account of the negligent or casual conduct of the other side. The expression "sufficient cause" is elastic, but it is not a magic formula to cover inaction, want of diligence or negligence. The ___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 6 of 11 Court is expected to adopt a liberal approach only where the explanation for delay is bona fide, plausible and free from mala fides. Where no reasonable explanation is offered and the delay is on account of sheer indolence, the discretion under Section 5 of the Limitation Act cannot be invoked.
(15) In the present case, the ex-parte decree was passed on 22.08.2015. Admittedly, the Defendant gained knowledge of the decree on 30.07.2022, yet he did not prefer an Appeal under Section 96 CPC nor filed an application under Order IX Rule 13 CPC at that stage. Instead, after a lapse of more than 8 months from gaining knowledge, the Defendant chose to contest the decree by filing objections in the execution proceedings on 20.4.2023. These objections were duly heard and dismissed on merits on 12.10.2023. Thereafter, instead of availing the remedy of appeal promptly, the Defendant again allowed 2.5 months to lapse before filing an application under Order IX Rule 13 CPC on 08.01.2024. This application too was heard and dismissed on merits on 27.08.2024. Even then, the Defendant did not act with promptitude and allowed another 7 months to pass before instituting the present appeal.
(16) The Defendant seeks to explain the delay on grounds that (i) the dismissal order under Order IX Rule 13 CPC was not uploaded online, (ii) counsel was busy in marriage functions for several months, (iii) counsel's office was not functional, and (iv) counsel was medically unwell. (17) However, the Ld. Trial Court record reveals that on 27.08.2024, when the Order IX Rule 13 application was ___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 7 of 11 dismissed, Defendant's Counsel who is also the main Counsel before this Court was present in the Court as is reflected by the order sheet dated 27.08.2024 passed by the Ld. Court of Civil Judge. Thus, the plea that Defendant remained unaware of the order due to non-uploading is fallacious. Needless to say that a litigant is expected to pursue his case diligently and, if necessary, apply for inspection or certified copy, without delay. The explanation offered reflects casualness and negligence. (18) Further, the ground of marriage preparations of counsel, sought to justify delay of nearly four months, cannot be accepted as "sufficient cause". The medical record of the Counsel annexed only reflects a three-day ailment due to abdominal pain and does not justify the prolonged inaction. Further, no attempt was made to engage another counsel in the meantime, which shows lack of bona fides. The law expects a litigant to be vigilant about his remedies and not to remain dependent indefinitely upon one counsel, especially when statutory timelines are in question.
(19) The Defendant has placed reliance upon the judgment in N. Mohan v. R. Madhu, (2020) SCC, to contend that he has been bonafidely pursuing his remedy under Order IX Rule 13 CPC, and that the time spent therein ought to be excluded so as not to deprive him of his statutory right to appeal. However, such reliance is misplaced. This is not a case where the Defendant is only seeking exclusion of the period spent in pursuing his remedy under Order IX Rule 13. Rather, from the very inception, i.e., from the date on which he claims to have ___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 8 of 11 acquired knowledge of the ex-parte decree, there has been a consistent lapse and inaction on his part in pursuing the available remedies. Even the application under Order IX Rule 13 was filed belatedly, several months after the date of knowledge of the decree. The record further reveals that the Defendant has been adopting dilatory tactics. In these circumstances, the Defendant has failed to establish his bona fides or to show that he acted with due diligence.
(20) It is trite law that a liberal interpretation of "sufficient cause" cannot extend to condoning gross negligence or permitting a litigant to endlessly experiment with different remedies. The reasons urged by the Defendant are neither bona fide nor satisfactory. The Defendant had multiple opportunities i.e upon gaining knowledge of the decree, after dismissal of execution objections, and after dismissal of the Order IX Rule 13 application to file the present appeal, however, record reflects that at every stage, he allowed substantial periods of delay to elapse without any justifiable explanation. The reasons put forth amount to mere excuses rather than "sufficient cause" within the meaning of Section 5 of the Limitation Act.
(21) In the matter titled as Pathapati Subba Reddy (Died) by LRs and ORS Vs. The Special Deputy Collector (LA) the Hon'ble Apex Court has observed that " Courts are empowered to exercise discretion to condone the delay, if sufficient cause had been explained, but exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as , where ___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 9 of 11 there is inordinate delay , negligence and want of due diligence". The delay in filing the present Appeal remains wholly unexplained, and the grounds urged are neither plausible nor bona fide.
(22) Even otherwise, the Defendant (Appellant herein) has no case on merits. The record demonstrates that summon were duly issued at the very address which is reflected in the invoices/bills forming the basis of the suit. The process server has categorically endorsed "refused", which in law amounts to service. The objection that the process server has not specified the name of the person who refused is of no avail specially in view of the fact that the process server has not endorsed "unclaimed, not found, not known, left, wrong address" and thus a presumption of regularity attaches to judicial process. Moreover, when the Defendant appeared in execution proceedings, he took a plea that the address was not correct and the summons were not served, but significantly, he never challenged the authenticity of the bills, the underlying transactions, or his own proprietorship/identity. Similarly, in the application under Order IX Rule 13 CPC, he did not deny the business relationship nor allege that the bills annexed by the Plaintiff were fabricated. For more than 2½ years, he remained silent on these aspects. The objection that the suit was filed against the proprietorship firm without impleading the Defendant as a partner is misconceived. In Ashok Transport Agency Vs. Awadhesh Kumar (1998) 5 SCC 567, the Hon'ble Apex Court has held that a suit by or against a proprietary concern is by or ___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 10 of 11 against the proprietor of the firm. Accordingly, the objection is without merit.
Conclusion (23) In view of the foregoing discussion, the application seeking condonation of delay stands dismissed. Consequently, the appeal, being hopelessly barred by limitation, is not maintainable. Even otherwise, on merits, no ground for interference is made out as the judgment under challenge suffers from no infirmity.
(24) Copy of this judgment along with TCR be sent back to the Ld. Trial Court.
(25) File be consigned to record room after necessary compliance.
Digitally signed by SHAGUN SHAGUN SHARMA SHARMA Date:
2025.09.04 15:58:14 +0530 Announced in the open Court on 04.09.2025 (SHAGUN SHARMA) District Judge-12, Central Distt.
Tis Hazari Court, Delhi 04.09.2025 Certified that this judgment contains 11 pages and each page bears my signatures. Digitally signed by SHAGUN SHAGUN SHARMA SHARMA Date:
2025.09.04 15:58:20 +0530 (SHAGUN SHARMA) District Judge-12, Central Distt.
Tis Hazari Court, Delhi 04.09.2025 ___________________________________________________ RCA DJ No. 47/2025 Mr. Sumit Butalia Vs Mr. Jitender Page 11 of 11