Rajasthan High Court - Jaipur
Bhagwan Das Gupta vs Jhumar Lal Agarwal And Others on 28 May, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL FIRST APPEAL NO.54/2012. Bhagwan Das Gupta Vs. Jhumar Lal Agarwal & Ors. Date of order:- May 28, 2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.K. Daga for the defendant-appellant. Shri J.P. Goyal, Senior Advocate with Shri Abhi Goyal for plaintiff-respondent No.1. Shri S.C. Gupta for defendant-respondents No.2 & 3. ***** Reportable BY THE COURT:-
1) This appeal has been filed by the defendant-appellant against the judgment & decree dated 1/6/2007 passed by Additional District & Sessions Judge No.1, Jaipur Metropolitan, Jaipur whereby he decreed the suit filed by plaintiff-respondent No.1 Jhumarlal Agrawal for recovery of Rs.6,34,124.27 paisa, which included the principal amount and interest @12% per annum along with cost of Rs.5000/- and solvent security from the date of filing of the suit till actual recovery against defendant-appellant Bhagwan Das Gupta and defendants No.2 and 3 Naresh Chand Goyal and Shyam Sunder Goyal, respectively.
2) Though the period of limitation for filing appeal is 90 days, but the present appeal has been filed by the defendant-appellant with the delay of 1591 days, equivalent to almost 4 years. Plaintiff-respondent has seriously contested the application filed by the defendant-appellant under Section 5 of the Limitation Act seeking condonation of delay. Arguments on such application were heard. This order will dispose of the aforesaid application.
3) It would be significant to notice at the outset that ex-parte decree was passed against the defendant-appellant on 1/6/2007. Defendant-appellant filed an application under Order 9 Rule 13 CPC against the aforesaid ex-parte decree, which application was dismissed by the learned trial court on 28/7/2008. Appeal thereagainst, beaing S.B. Civil Misc.Appeal No.3311/2008, was filed before the court by the present defendant-appellant. This court allowed the appeal vide judgment dated 17/4/2009 on the condition of appellant depositing 50% of the decreetal amount and furnishing solvent security with the executing court for the balance amount of 50% and also paying a sum of Rs.5,000/- as costs to the plaintiff respondent and parties were directed to appear before the trial court on 18/5/2009. Before however appellant could deposit 50% of the decreetal amount and furnishing solvent security with the executing court, execution of the decree passed by the learned trial court was stayed by this court in the appeal filed by the co-defendants Naresh Chand Goyal and Shyam Sunder Goyal, in S.B. Civil Regular First Appeal No.552/2007. It was on that premise that the appellant did not deposit the amount in terms of directions of this court dated 17/4/2009. But the appellant deposited the amount of Rs.5,000/- as cost awarded by this court and requested the trial court for dropping of execution proceedings against him. When execution proceedings were not dropped, defendant-appellant filed a writ petition before this Court bearing S.B. Civil Writ Petition No.15863/2010 on 30/11/2010, which however was dismissed as withdrawn vide order dated 29/11/2011 with liberty to the appellant to file civil regular first appeal. It was thereafter that the appellant obtained certified copy of the judgment & decree dated 1/6/2007 and filed the present appeal on 7/1/2012 with the delay of 1591 days. The delay is sought to be explained by stating that the appeal could not be filed within limitation owing to the circumstances narrated above and that the appellant did not deposit half of the decreetal amount on account of bonafide belief that he was not required to do so because execution of entire judgment & decree has been stayed in the appeal filed by the co-defendants. Appellant filed an affidavit before the executing court stating that he is owner of Plot No.A-51, Rohini Nagar-II, Jaipur measuring 252 square meter, which may be taken as collateral security of 50% in terms of the order of this court in appeal. If eventually matter is decided against him, recovery may be made by sale of such plot, which was worth Rs.6 lacs. The executing court issued warrant of recovery on 27/5/2010 against defendant-respondent No.2-Naresh Chand Goyal & defendant-respondent No.3-Shyam Sunder Goyal. The executing court thereafter issued attachment warrants against defendant-appellant on 6/8/2010 and then issued proclamation-notice on 27/9/2010. In those facts, appellant filed writ petition, which was dismissed as withdrawn vide order dated 29/11/2011 with the liberty to him file civil regular first appeal. It is against the backdrop of these facts that present appeal has been filed by the defendant-judgment-debtor on 7/1/2012 with the application seeking condonation of delay of 1591 days narrating the aforesaid events as sufficient cause for condonation of delay.
4) The application has been contested by the Plaintiff-respondent/decree-holder, who has filed reply thereto opposing condonation of delay on the premise that the plea set up by the defendant-appellant is not bonafide and prayed for dismissal of the application for condonation of delay.
5) This Court has heard Shri R.K. Daga, learned counsel for the defendant-appellant Shri Bhagwan Das Gupta, Shri J.P. Goyal, learned senior counsel for plaintiff-respondent No.1 Jhumar Lal Agarwal and Shri S.C. Gupta, learned counsel appearing for defendant-respondents No.2Naresh Chand Goyal & defendant-respondent No.3-Shyam Sunder Goyal. This Court has anxiously considered rival submissions and perused the material available on record.
6) Shri R.K. Daga, learned counsel for the defendant-appellant has argued that the suit against the appellant was decreed in absentia. This being an ex-parte decree, appellant filed an application under Order 9 Rule 13 CPC before the trial court. The said application was dismissed by the trial court vide order dated 28/7/2008. Appellant filed S.B. Civil Misc.Appeal No.3311/2008 against the aforesaid order. This Court allowed the appeal vide judgment dated 17/4/2009 and set-aside the ex-parte judgment & decree dated 1/6/2007 subject to certain conditions, noted above, with direction to the parties to appear before the trial court on 18/5/2009. Learned counsel for the defendant-appellant submits that since the defendants-respondents already deposited the entire decreetal amount, execution of the decree remained stayed pursuant to the interim-order of this Court in S.B. Civil Regular First Appeal No.552/2007 filed by the co-defendant guarantors and even if therefore the appellant did not deposit the same, impugned judgment & decree of the learned trial court dated 1/6/2007 would not be taken to have revived against the appellant. In the appeal filed by the co-defendants/guarantors of the appellant, this Court required them vide order dated 27/2/2007 to deposit 50% of the decreetal amount with the executing court within a period of eight weeks and furnish the solvent security for the balance amount. The aforesaid interim-order was confirmed by this Court in that appeal on 20/1/2009 directing that the amount so deposited by them shall be deposited in the FDR for a period of two years with any nationalised bank.
7) Shri R.K. Daga, learned counsel for the appellant further argued that defendant-respondents No.2Naresh Chand Goyal & defendant-respondent No.3-Shyam Sunder Goyal, guarantors of the defendant-appellant in their appeal failed to deposit 50% of the decreetal amount within a period of eight weeks allowed by this court. This court vide order dated 10/1/2008 on their application, extended time by further four weeks to make compliance of that order. It was made clear that in case they failed to comply with the order dated 27/2/2007, it would be open for the Plaintiff-respondent to get the decree executed in their favour. When the defendant-respondents No.2 and 3, the guarantors failed to make compliance of the said order, plaintiff decree-holder filed an execution petition, being Execution Petition No.22/2008, on 19/7/2008 against the judgment-debtor including the defendant-appellant herein. It was thereupon that the defendants No.2 and 3 deposited the complete decreetal amount of Rs.6,34,124.27 paisa and furnished solvent security with regard to remaining amount payable and amount of interest on the principal amount from the date of filing of the suit till the said deposit in terms of the interim-order modified by this court on 23/9/2008, which is apparent from the order-sheet of the trial court dated 13/10/2008 (Ann.3 in SBCWP No.15863/2010). Original order dated 20/1/2009 was further modified on 20/1/2009 directing that the amount so deposited shall be kept in FDR in nationalised bank for a period of two years, which should be periodically extended. Executing court vide order dated 13/10/2008 stayed further execution proceedings and thereafter vide order dated 16/3/2009 directed deposit of the decreetal amount in the FDR again as per order of this court.
8) It was further argued that on account of this development, the defendant-appellant filed an application before the executing court on 18/5/2009 stating that on inspection of the records in the execution proceedings, it transpired that the decree-holder has filed an execution petition only against defendant judgment-debtor Nos.2 and 3, who have deposited 100% decreetal amount. Since the execution petition has not been filed against the defendant-appellant, it was no longer necessary for him to furnish the solvent security. However, he is willing to deposit Rs.5000/- towards the cost. He should therefore be exempted from furnishing solvent security. He simultaneously moved an application for extension of time to furnish solvent security. Thereafter, the defendant-appellant herein filed one more application on 23/5/2009 before the executing court with the averments that he offered to pay Rs.5,000/- to the decree-holder, which he declined, therefore he deposited the said amount with the court on 18/5/2009. A request was made for passing appropriate order. With that application, appellant filed an affidavit stating that he is owner of Plot No.A-51, Rohini Nagar, Jaipur measuring 252 square meter, which may be taken as collateral security of 50% in terms of the order of this court. If eventually matter is decided against him in appeal, recovery may be made by sale of such plot, which was worth Rs.6 lacs. The executing court even then issued attachment warrants on 6/8/2010 and thereafter issued proclamation-notice on 27/9/2010.
9) Shri R.K. Daga, learned counsel for the appellant has submitted that delay in filing of this appeal in view of above facts thus stands fully explained. Delay in filing appeal was caused due to bonafide reasons, therefore the delay may be condoned. When already against the same judgment and decree, appeal at the instance of co-defendants is pending before this court, appeal filed by the appellant herein ought to be decided on merits rather than dismissing the same on technicality of limitation.
10) Shri R.K. Daga, learned counsel for the appellant has argued that it is well settled that the liability of the principal judgment-debtor, and that of the surety and the guarantor is co-extensive. Execution of a decree can be sought against guarantor alone. Learned counsel for the appellant in support of his argument has relied on the judgments of Supreme Court in Ram Kishun Vs. State of U.P. : (2012) 11 SCC 511, State Bank of India Vs. Messrs. Indexport Registered and others : AIR 1992 SC 740, Andhra Pradesh High Court in Indian Overseas Bank Vs. G.Ramulu & Ors. : 1999 (Suppl. Civil Court Cases 461 (A.P.) 461 and Allahabad High Court in Smt.Sudha Devi Vs. State of U.P. & another : 1993 Civil Court Cases 159 (Allahabad). It is argued that as per the ratio of these judgments, if the decree is passed against the defendants jointly and severally, then, the same can be executed against any of the defendant as per Section 128 of the Indian Contract Act.
11) Shri R.K. Daga, learned counsel for the appellant also cited judgment of the Supreme Court in Bhanu Kumar Jain Vs. Archana Kumar & Anr. : 2005(1) Supreme Today 102 = AIR 2005 SC 626 and argued that there is no bar in law for availing remedy of filing application for setting aside the ex-parte decree and also filing regular first appeal against such judgment and decree. It was further argued that Section 5 of the Limitation Act, 1963 has to be interpreted liberally while deciding said application for condonation of delay. Learned counsel in support of this argument has placed reliance upon the judgments of Supreme Court in State of Jharkhand & Ors. Vs. Ashok Kumar Chokhani & Ors. : AIR 2009 SC 1927, Union of India Vs. Giani : 2011 (6) SRJ 440, Sainik Security Vs. Sheela Bai & Ors. : 2009 (1) Civil Court Cases 197 (S.C.), Shital Deen Vs. State of U.P. & Ors. : 2010 (1) Civil Court Cases 157, C.K. Prahalada & Ors. Vs. State of Karnataka & Ors. : 2009 DNJ (SC) 1186 & Devineni Padmaja Vs. Vundavalli Srinivasa Rao : 2012(4) Civil Court Cases 395 (S.C.) and judgment of Himachal Pradesh High Court in Indira Devi Vs. Surendra Gupta : 2011(1) Civil Court Cases 366 (H.P.).
12) Shri J.P. Goyal, learned senior counsel appearing for plaintiff-respondent No.1 opposed the application for condonation of delay and argued that the defendant-appellant has approached this court for setting aside the ex-parte decree and his failure to avail the order dated 17/4/2009 passed in S.B. Civil Misc.Appeal No.3311/2008 by not making deposit of the decreetal amount and not furnishing the solvent security for remaining balance amount, which bar him from filing this civil regular first appeal, with such an enormous delay. Appellant having deliberately not complied with the aforesaid condition stipulated in the order of this court dated 17/4/2009, has not come before this court with clean hands. His conduct has not been bonafide. Learned senior counsel argued that if at all appellant wanted to file civil regular first appeal, nothing prevented him to file such an appeal in time. He has by his conduct disentitled himself to any equitable relief. It is argued that ignorance of law cannot a ground of condonation of delay, whereas in the present case, even this has not been contended on behalf of the appellant that he could not file appeal due to ignorance of law. He filed an application under Order 9 Rule 13 CPC after much delay only when he knew about passing of the interim order passed in the appeal filed by the co-defendants. He filed number of applications before the executing court thwarting execution of the judgment and decree against him on one pretext or the other, which conduct of the appellant clearly shows that he was well advised. He however was trying to avoid execution of the decree by raising flimsy objections. Enormous delay of more than four years cannot be taken to have been explained, muchless, satisfactorily explained, and the explanation given by the appellant does not qualify being sufficient cause in the meaning of Section 5 of the Limitation Act, 1963. Learned senior counsel for the plaintiff-respondent has in support of his arguments relied on the judgments of Supreme Court in Katari Suryanarayana & Ors. Vs. Koppisetti Subha Rao : AIR 2009 SC 2907, Balwant Singh (Dead) Vs. Jagdish Singh & Ors. : AIR 2010 SC 3043 & P.K. Ramachandran Vs. State of Kerala and another : 1998(4) ICC 445 and judgment of this Court in Bal Kishan Sharma and ors. Vs. Radhey Shyam Godhawat : 2012(2) WLC (Raj.) 63.
13) Shri S.C. Gupta, learned counsel appearing for defendant-respondents No.2 and 3 has argued that it was the appellant, who had the first obligation to deposit the half decreetal amount and furnish solvent surety for rest as per judgment of this Court in his appeal against ex-parte decrees. Defendants No.2 and 3 could not immediately arrange for 50% of the decreetal amount pursuant to the interim-order passed by this court initially on 27/2/2007. They could not manage to pay such amount even when time was extended further by four weeks vide order dated 10/1/2008. Lastly when this Court by order dated 23/9/2008 required them to make compliance of the aforesaid order within one month, defendants had to arrange for money. They deposited the money under compulsion on 13/10/2008 because had they failed to comply with the said order, their house would have been put to auction. Fact that judgment & decree directs recovery of the money jointly and severally from all the defendants and defendants No.2 and 3 have deposited the entire amount with solvent security under compulsion does not grant immunity to the defendant-appellant in the present appeal, who was the principal borrower, defendants No.2 and 3 being merely his guarantors. Application for condonation of delay should therefore be dismissed.
14) Facts of the case as noted in earlier part of this judgment clearly go to show that the appellant availed remedy of filing an application under Order 9 Rule 13 CPC before the trial court praying for setting aside the ex-parte judgment and decree dated 1/6/2007. On dismissal of such application, he succeeded in pursuing this court to set-aside such ex-parte decree on the condition of his depositing 50% of the decreetal amount and furnishing solvent security for the remaining amount before the executing court with prayer of costs of Rs.5,000/- to the plaintiff. Yet, he did not comply with any of the directions. The said order dated 17/4/2009 was passed by this court while allowing the appeal requiring the defendant-appellant to comply with the aforementioned conditions within a period of four weeks and appear before trial court on 18/5/2009. Presently, it is not the question before this court whether civil regular first appeal against the ex-parte decree under Section 96 CPC would not maintainable? What is being decided here is that despite filing of application under Order 9 Rule 13 CPC and thereafter dismissal of the application and thereafter acceptance of appeal by this court with the aforesaid conditions, failure of the appellant to comply with those conditions, can be taken to have satisfactorily explained the delay. There is no valid explanation why those conditions were not complied with. Even if delay is considered from the date of judgment of this court passed in appeal filed by the appellant under Order 43 Rule 1(d) CPC on 17/4/2009 whereby, he was granted four weeks time to comply with the conditions of depositing 50% of the decreetal amount and solvent security for remaining 50% of the decreetal amount, there is no sufficient explanation even otherwise for the delay of 2 years, which has occurred after that day.
15) The Supreme Court after consideration of the previous case law on the subject in Bhanu Kumar Jain supra in paras 21, 22 & 23 held, as under:-
21. An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the following grounds:
(i) The materials on record brought on record in the ex-parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and
(ii) The suit could not have been posted for ex-parte hearing.
22. In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.
23. When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true.
16) In Rani Choudhury Vs. Lt. Col. Suraj Jit Choudhury : AIR 1982 SC 1397, it was observed by the Supreme Court that the explanation to Order 9 Rule 13 CPC has been inserted vide Code of Civil Procedure (Amendment) Act, 1976 with the avowed purpose of abridging and simplifying the procedural law. By enacting the Explanation, Parliament left it open to the defendant to apply under Order 9 Rule 13 CPC for setting aside an ex parte decree only if the defendant opted not to appeal against the ex-parte decree or, in the case where he had preferred an appeal but the same has been dismissed as withdrawn. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer an adjudication by the appellate court on the merits of the decree or have the decree set aside by the trial court under Order 9 Rule 13 CPC. The legislative intent incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him or the appeal has been disposed of on any other ground other than the ground that the appellant has withdrawn the appeal, he was denied the right to apply under Order 9 Rule 13 CPC.
17) The effect of Explanation so inserted vide Amendment has been explained by the Supreme Court in Bhanu Kumar Jain supra that despite dismissal of application under Order 9 Rule 13 CPC, regular appeal under Section 96(2) CPC against ex-parte decree would still be maintainable. In application under Order 9 Rule 13 CPC, apart from questioning the correctnes or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. When an ex-parte decree is passed, the defendant has two options, one, to file regular appeal and another, to file an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree. He can take recourse to both the proceedings simultaneously but in the event that appeal is dismissed as a result whereof the ex-parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 CPC, a petition under Order 9 Rule 13 CPC would not be maintainable. However, Explanation I appended to said provision does not suggest that the converse is also true. In appeal filed under 96 CPC, having regard to Section 105 of the Code, it is also permissible for the appellant to raise a contention as regards the correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein.
18) In that view of the matter, it cannot be said that dismissal of the application filed by the appellant under Order 9 Rule 13 CPC, which order has attained finality on his failure to comply with the conditions on which the impugned judgment & decree dated 1/6/2007 was set-aside by the judgment of this court dated 17/4/2009 passed in S.B. Civil Misc.Appeal No.3311/2008 under Order 43 Rule 1(d) CPC, would bar filing of appeal under Section 96(2) of the Code of Civil Procedure, 1908 on the grounds available under sub-Section (2) of Section 96 CPC. But this is not the point, which this court is called upon to decide in the present proceedings. The question, which this court is required to decide is that when appeal under Order 43 Rule 1(d) CPC filed by the appellant was allowed by this court on the condition of depositing 50% decreetal amount and furnishing solvent security for rest 50% decreetal amount within four weeks and that period of four weeks expired on 16/5/2009, whether delay of about 2 years till 7/1/2012 when appellant filed this appeal, can be taken to have been satisfactorily explained?
19) In support of the contention that appellant was not required to deposit 50% of the decreetal amount, two reasons have been given, which the learned counsel for the appellant has sought to explain : (i) that the appellant could not have deposited 50% of the decreetal amount because execution of the judgment and decree which was passed against all the defendants was stayed by this court, (ii) that co-defendants, who are also judgment- debtors being guarantors, had already deposited the entire decreetal amount, therefore there was no need for the appellant to deposit of said 50% of the decreetal amount in compliance aforesaid judgment of this court supra. The plaintiff decree-holder in the present case proceeded only against the guarantors first. Learned counsel for the appellant has sought to rely on number of judgments of Supreme Court holding that the liability of the principal judgment-debtor, surety and the guarantor is co-extensive and execution of a decree can be sought against guarantor first. All these arguments are hardly appealing. Even if the co-defendants had deposited the entire decreetal amount in the aforementioned circumstances, that would not give immunity to the appellant from being proceeded against in the execution proceedings because that deposit was made by co-defendants pursuant to the interim-order passed by this court in their appeal on the condition of investing the said amount in FDR for a period of two years during pendency of appeal. As far as plaintiff is concerned, he would not get anything out of that money. Fact that the decree was passed against all the defendants, is a circumstance that justify separate execution against defendant-appellant herein. And most significantly, conduct of the appellant is indeed such, which clearly shows his intention to flout the aforesaid conditions imposed by this court.
20) In the present case, on account of non-compliance of the conditions imposed by this court while allowing the appeal filed by the appellant under Order 43 Rule 1(d) CPC, that appeal at the maximum can be taken to have been dismissed thus, making the order of dismissal of application under Order 9 Rule 13 CPC final. Once, appeal against rejection of his application under Order 9 Rule 13 CPC is dismissed or is taken to have been dismissed, as in the present case, consequence thereof would be that in the facts of this case, defendant-appellant would be disentitled from raising the same contention in the first appeal as sufficient cause to explain delay of interregnum period because appellant failed to avail benefit of the order by satisfying the conditions of positive order passed in his favour by this Court.
21) Explanation, which the appellant has given is that he unsuccessfully attempted to avoid execution of the decree against him by still relying on the aforesaid two conditions imposed by this court in his appeal and in doing so, he tried to avoid deposit of 50% of the decreetal amount and furnish solvent security for rest 50% of the decreetal amount and remained contended by merely filing an affidavit offering to give his house in collateral security in lieu thereof and finally by offering only to deposit Rs.5,000/- as cost on 23/5/2009. Thereafter, he remained completely silent for more than three years. When the trial court issued attachment warrant on 6/8/2010 and proclamation-notice on 27/9/2010, apprehending confiscation of his property, he woke up to the necessity of filing writ petition. Filing of writ petition was ill-advised and misconceived. Though appellant has taken many grounds for condonation of delay but he also sought to explain the delay by narrating the fact about filing of the writ petition and eventual, withdrawal of the writ petition on 29/11/2011 and thereafter filing of the present appeal on 7/1/2012. Those facts hardly constitute as sufficient cause to explain the enormous delay as 4 years. Filing of writ petition by him and on that pretext seeking to explain delay of subsequent 15 months, does not justify the delay because writ petition against execution proceedings cannot be taken to have been in substitution of regular first appeal. When the conduct of the appellant is such that he failed to comply with the judgment of this court dated 17/4/2009 allowing the civil misc.appeal filed by him and setting aside the judgment and decree on certain condition and deliberately avoided to make compliance of the condition stipulated in that order, this cannot be accepted as believable, reasonable or sufficient explanation of delay.
22) In the judgment of the Supreme Court in Ashok Kumar Chokhani cited by the learned counsel for the appellant, it was held that while deciding the application for condonation of delay, the court is not required to go into merits unless sufficient ground for delay is explained. On facts, the Supreme Court maintained the order of the High Court refusing to condone the delay. In Giani supra, the Supreme Court recorded its satisfaction that the statements in the applications for condonation of delay do constitute sufficient cause in not preferring the appeals within limitation. In Sainik Security supra, delay of 769 days in filing appeal was condoned on the basis of finding by the Supreme Court on facts stated in the application constituting sufficient cause for condonation of delay in filing appeal. This one is a very small judgment wherein no discussion of facts have been made. In C.K. Prahalada supra, High Court condoned the delay in appeal filed by the State, therefore, the Supreme Court declined to make interference and directed the State to pay the cost of Rs.10,000/-. In Devineni Padmaja supra, again, delay of 992 days was condoned by the High Court requiring the appellant to deposit half of the decreetal amount and permitting plaintiff-respondent to withdraw the same, which order was complied with by the defendant-appellant. During pendency of appeal before the Supreme Court, defendant was required to further deposit Rs.2,50,000/-, which he deposited. In those facts, it was held by the Supreme Court that High Court was justified in condoning the delay. None of the judgments cited by the learned counsel for the appellant help him in the present case.
23) The Supreme Court in Katari Suryanarayana & Ors. supra held that mere ignorance of legal consequence without something more, would, be not sufficient to condone such a huge delay.
24) The Supreme Court in Balwant Singh (Dead) supra held that mere fact that applicants had no knowledge of pending appeal and acquiring knowledge only when their counsel informed them about hearing of appeal, would not justify delay of two years for setting aside of abatement. It was held that liberal approach to continue sufficient cause in the meaning of Section 5 of Limitation Act, does not mean doing injustice to opposite party. While explaining the import of the words sufficient cause, their lordships in para 14 of the judgment, observed, as under:-
14. In the case ofUnion of India v. Tata Yodogawa Ltd.,[1988 (38) Excise Law Times 739 (SC)], this Court while granting some latitude to the Government in relation to condonation of delay, still held that there must be some way or attempt to explain the cause for such delay and as there was no whisper to explain what legal problems occurred in filing the Special Leave Petition, the application for condonation of delay was dismissed. Similarly, in the case ofCollector of Central Excise, Madras v. A.MD. Bilal & Co., [1999 (108) Excise Law Times 331 (SC)], the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisions of Order 22 Rule 9, CPC has been the subject matter of judicial scrutiny for considerable time now. Sometimes the Courts have taken a view that delay should be condoned with a liberal attitude, while on certain occasions the Courts have taken a stricter view and wherever the explanation was not satisfactory, have dismissed the application for condonation of delay. Thus, it is evident that it is difficult to state any straight-jacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression `sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect `sufficient cause' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997] The expression `sufficient cause' implies the presence of legal and adequate reasons. The word `sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plenitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
25) It was further held by the Supreme Court in in Balwant Singh (Dead) supra in para 16 of the report, as under:-
........ Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. ...................
26) The aforesaid judgment of Supreme Court in Balwant Singh (Dead) supra was affirmed in Lanka Venkateshwarlu Vs. State of U.P. : AIR 2011 SC 1199 reiterating the principle related to delay attributable to inefficiency and ineptitude of Government pleaders, as under:-
Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Court do not enjoy un-limited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised n a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers.
The concepts such as liberal approach, justice-oriented approach, substantial justice cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay.
27) The Supreme Court in P.K. Ramachandran supra held that law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds.
28) Supreme Court in another judgment in Ramlal Vs. Rewa Coalfields Ltd. : AIR 1962 SC 361 in para 5 thereof, held as under:-
..........It is, however, necessary to emphasis that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by s. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration .....................
29) The true legal position, therefore, is that the words sufficient cause in Section 5 of the Limitation Act and Order XXII, Rule 9 of the Code should receive a liberal construction so as to advance substantial justice only when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.
30) Appellant has thus failed to satisfactorily explain the huge delay of more than four years in filing the present appeal before this Court. Explanation of delay furnished by him cannot be said to constitute a sufficient cause to justify condonation of enormous delay of 1591 days as it lacks bonafides, in that the appellant was well advised and appealed to this court against rejection of his application under Order 9 Rule 13 of the Code. Appellant failed to comply with the conditions of the order of this Court dated 17/4/2009 setting aside the ex-parte decree and rather sought to justify non-compliance of those conditions in execution proceedings.
31) The application filed under Section 5 of the Limitation Act, 1963 seeking condonation of delay is thus liable to be dismissed and the same is accordingly dismissed. Consequently, the appeal is also dismissed with no order as to costs.
(MOHAMMAD RAFIQ), J.
anil All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum J