Maharashtra Rajya Sahakari ... vs Kanti Shantilal And Company
2002 Latest Caselaw 746 Bom

JUDGMENT

B.B. Vagyani, J.

1. Heard.

2. The respondent, who is the original plaintiff, filed Special Civil Suit No. 105 of 1990 in the Court of Civil Judge, Senior Division, Dhule. The said suit was subsequently transferred to the Civil Judge, Senior Division. Nandurbar in the year 1990. The suit summons was served on the Regional Manager of the applicant on 21.3.1991. He did not appear in the Court. Therefore, the matter proceeded ex parte against the applicant-original defendant and ultimately, decree came to be passed on 23.2.1995. The applicant defendant filed application under Order 9 Rule 13 of the Civil Procedure Code on 16.12.1995 for setting aside the ex parte decree. The said application was rejected by the Trial Court on 13.11.1998. The rejection order was carried in revision. The High Court rejected the Civil Revision Application on 4.2.1992. After rejection of the Civil Revision Application, the original defendant has filed First Appeal along with the application for condonation of delay on 16.2.1999. There is delay of 1364 days in filing the First Appeal.

3. The respondent-original plaintiff resisted the application for condonation of delay on the ground that there is inordinate delay and the delay is not at all satisfactorily explained.

4. Shri Deshmukh, learned Counsel vehemently submits that the time consumed in the proceeding initiated by the applicant original defendant under Order 9, Rule 13 of the Civil Procedure Code should be considered as sufficient cause for the purpose of condonation of delay. On the other hand, Shri Rane, learned Counsel submits that the time consumed in the proceeding initiated under Order 9, Rule 13 of the Civil Procedure Code cannot be treated as a sufficient cause within the meaning of Section 5 of the Limitation Act, for the purpose of setting aside the ex parte decree. According to learned Counsel Shri Rane, the present applicant-original defendant had two remedies. He exhausted one remedy i.e. the application for setting aside ex parte decree as contemplated by Order 9, Rule 13 of the Civil Procedure Code. According to learned Counsel Shri Rane, the applicant original defendant could have also filed first appeal at the same time challenging the ex parte decree. The applicant original defendant did not file first appeal and, therefore, the time consumed in the proceeding initiated under Order 9, Rule 13 of the Civil Procedure Code does not constitute a sufficient cause within the meaning of Section 5 of the Limitation Act. In order to support his submissions, he relied upon the case of Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar (1940) Bom. L.R. 957.

5. I gave anxious consideration to the rival submissions made at the Bar. The applicant-original defendant no doubt filed application under Order 9, Rule 13 of the Civil Procedure Code for setting aside ex-parte decree. At the same time, the applicant-defendant could have filed civil appeal challenging the ex parte decree. Admittedly, the applicant - original defendant did not exhaust another remedy though provided by law. It is material to note that there was no bar to file an appeal against the ex parte decree. The applicant is the Maharashtra Rajya Sahakari Adiwasi Vikas Mahamandal Maryadit. The suit summons was served on the Regional Manager. He could have also filed civil appeal against the ex parte decree. It is strange that till rejection of Civil Revision Application on 4.2.1999, it did not strike to the applicant to file civil appeal against the ex parte decree. The decree came to be passed on 23.2.1995. The said decree has achieved finality long back. Certain rights are vested in the respondent-original plaintiff. In the case of Jotiba Limba (referred supra), on similar facts this Court has held that time consumed in the proceedings under Order 9, Rule 13 of the Civil Procedure Code to set aside ex parte decree cannot be treated as sufficient cause for not preferring the appeal within the period of limitation. The ratio in the case of Jotiba Limba (referred supra) is squarely applicable to the facts of the present case. There is inordinate delay of 1364 days in filing the First Appeal. The delay is not at all satisfactorily explained. In view of these circumstances, the prayer for condonation of delay is liable to be rejected.

6. In the result, Civil Application for condonation of delay stands rejected.