Dilip B. Joshi vs Vidya Sahakari Bank Ltd.
2004 Latest Caselaw 541 Bom

JUDGMENT

V.C. Daga, J.

1. This petition raises a question whether or not Section 5 of the Limitation Act is applicable to the application filed under Order 9, Rule 13 of the Code of Civil Procedure.

The Facts :

2. The facts giving rise to the present petition in nutshell are that a dispute came to be filed in the Maharashtra State Co-operative Court, Pune; wherein written statement was filed by the opponents and proceedings were adjourned for framing issues and further hearing. One witness was examined in the said proceedings by the disputant. However, he could not be cross-examined by the Counsel for the opponent as he was absent when the case was called out and examination-in-chief was recorded. The dispute came to be decided ex-parte.

3. On 6-3-2002 petitioner was served with notice of demand by the award holder-Bank demanding amount of award awarded by the Co-operative Court. The petitioner, after acquiring knowledge of adverse decree on 14-3-2002, applied for setting aside ex-parte decree along with application for condonation of delay.

4. The learned Judge of the Co-operative Court, relying upon judgment of the learned Single Judge of this Court in the case of Justice Francis Cardoz v. Bhaskar Bhatt 1998(1) Mah.L.R. 722, held that Section 5 could not be made applicable to the application moved under Order 9, Rule 13 of the Civil Procedure Code and went on to reject the application seeking condonation of delay for want of power to condone without considering merits thereof. This order is a subject matter of challenge in the present petition filed under Article 227 of the Constitution of India.

The Submissions :

5. This is a unique case wherein Counsel appearing for rival parties in one voice contended that the view taken by the learned Single Judge of this Court in the case of Justice F. Cardoz (supra) cannot be supported on any count. Learned Counsel appearing for both the parties brought to my notice earlier judgment of the learned Single Judge of this Court, in the case of N.N. Waghmare v. N.M. Mokal, ; wherein it has been ruled that Section 5 of the Limitation Act is very much applicable to the application moved under Order 9, Rule 13 of the Civil Procedure Code. Shri Deshpande, learned Counsel for the respondent submitted that the judgment in the case of Justice F. Cardoz (supra) appears to have been delivered without noticing the binding judgment of learned Single judge of this Court in Nivruti Waghmare's case (supra) as such subsequent judgment in the case of Justice F. Cardoz is liable to be treated as per incurium and impugned order be set aside and proceedings be remitted back to the trial Court with further direction to decide the same in accordance with law within a reasonable time. However, learned Counsel for the petitioner urged that it would be necessary to refer this matter to a larger Bench in view of the conflicting views of the co-ordinate Benches.

Consideration :

6. Having heard rival parties, before proceeding to consider the scope of Section 5 of the Limitation Act, 1963, ('new section' for short) let me consider the historical background as to how Section 5 in the present Limitation Act of 1963 came on the statute. Conflicting judicial interpretations received by Section 5 of the Limitation Act, 1908 ("the old section" for short) compelled the legislature to reframe Section 5 while enacting new Limitation Act of 1963. Before going to the various conflicting views, let me notice the text of old Section 5 of the Limitation Act, which was as under:

"5. Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by any enactment or rule for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation -- The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."

7. In Gadre v. Brijnundan Saran XLV ILR All. 332, the suit was filed for recovery of arrears of rent in Small Causes Court at Cawnpore. Under an order of the learned District Judge the case was transferred for disposal to the Court of the Second Subordinate Judge of Cawnpore. It came to be decided ex parte. The application for setting aside ex parte decree was filed in the Court of the very Judge; who had passed the ex parte decree. But by that time application matured for hearing he had become Judge of the Small Causes Court at Cawnpore. In accordance with the provisions of Section 17 of the Provincial Small Cause Court Act, the defendant along with his application to set aside ex parte decree made an offer to furnish security. The very Judge by his order accepted the security which was offered by the defendant. However, application was ultimately, returned for being presented to the proper Court. By the time, the application was taken out in proper Court thirty days had elapsed. Even under these peculiar circumstances, it was held that Section 5 then applicable did not apply nor could the period during which the application laid pending in the Court of Small Causes be excluded. The High Court observed that the Judge concerned acted improperly who returned the application but did not condone delay occurred in moving such application.

8. In yet another interesting case Khairati v. Umar Din, AIR 1922 Lahore 266, the suit was decreed ex parte on 19th November, 1919 while the defendant was in jail. After being released on 14th May, 1920, he filed application for setting aside ex parte decree on 15th June, 1920. The trial Court dismissed the said application as time barred. In appeal the District Court condoned delay applying Section 5 of the Limitation Act, 1908. The High Court held that Section 5 could not have been applied to an application to set aside an ex-parte decree. In AIR 1927 Lahore 342, Pal Singh v. Harnam Singh, similar view was taken. Similarly, in Pundalik v. Ganpat AIR 1934 Nagpur 42 identical view was reiterated.

9. In Ajan Khan v. Alaf Gul, AIR 1935 Peshawar 146, it was held that the Court had no inherent power to enlarge period of limitation laid down in the statute. The view taken by most of the High Courts was that justice, equity and good conscience could not be invoked while entertaining a time barred application for setting aside ex-parte decree, (See AIR 1936 Rangoon 305 Jagadamma v. Naresh Pandey. In Ranglal v. Manjaji, AIR 1956 Hyderabad 29, the court refused to invoke inherent powers and the provisions of Section 151 of the Civil Procedure Code to condone delay in moving such applications.

10. The Section 5 of the Limitation Act, 1963 is the product of the suggestion made by the Law Commission of India in their report while considering replacement of Limitation Act, 1908. The Law Commission while suggesting modifications had suggested modifications to the then existing previsions of Section 5; so as to make it more specific rather than leaving it to different States or the High Court to extend the application of Section 5 to applications other than those enumerated in section and emphasized that a uniform rule should be adopted applying it to all applications except those arising under Order XXI of the Civil Procedure Code, relating to execution. The report of the Law Commission in this behalf reads as under:

"We are of the opinion that instead of leaving it to the different States or the High Courts to extend the application of Section 5 to applications other than those enumerated in the section, a uniform rule should be adopted applying it to all applications except those arising under Order XXI of the Code of Civil Procedure relating to execution. In the case of special or local laws, it would be open to such laws to provide that Section 5 will not be applicable."

11. Based on the above recommendations of the Law Commission, undermentioned Section 5 of the Limitation Act, 1963 came on the statute.

"Extension of period in certain cases -- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation -- The fact that the appellant or the applicant was misled by any order, practice, or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

12. The comparison between the old and new Section 5 will reveal that following changes have been brought about in the old Section 5 of the Limitation Act.

(a) The words "or application for review or for leave to appeal or other applications to which this section may be made applicable by or under any enactment for the time being in force" have been replaced by the expression "or any application other than an application under any of the section of Code of Civil Procedure, 1908".

(b) The words "Period of limitation prescribed therefor" have been substituted for the words "prescribed period".

(c) For the word "when" the word "if" has been substituted.

(d) A new explanation has been added at the end of the section.

13. The present Section 5 applies to all appeals, applications other than those arising under Order XXI of the Civil Procedure Code. The section applies by virtue of its own force and the matters (other than suits and orders) for which limitation is prescribed by the new Act. This follows from the use of the words "after the prescribed period" in the section.

14. The above Section 5 of the Limitation Act, 1963 was a subject matter of consideration in the case of Nivruti Nana Waghmare v. M.M. Mokal, ; Wherein an ex-parte decree for possession was passed against the petitioner tenant on 16-10-1974. On 8-10-1975, the petitioner tenant made an application for setting aside the said ex-parte decree. It was rejected. Appeal was dismissed inter alia; holding that the petitioner had no just and sufficient cause not to file application within prescribed period of limitation. The tenant had approached this Court by way of writ petition. It was argued that Section 5 of the Limitation Act, 1963 did not apply to an application for setting aside ex-parte proceedings. The learned Single judge while repelling this submission dealt with the issue in detail in para 19 of his judgment in the following words.

".......But the next submission of Mr. Shah is something which eludes comprehension. It is his contention that the application is barred by limitation and the delay cannot be condoned in such a case because, suggests Mr. Shah, the provisions of Section 5 of the Limitation Act could not apply to these proceedings. Now to my mind such a contention needs just be stated to be rejected."

It was held that since Article 123 prescribed period of limitation of 30 days for an application under Order 9, Rule 13 of the Civil Procedure Code, the provisions of Section 5 would apply to such applications.

15. In Justice F. Cardoz v. Bhaskar Bhatt, 1998(1) Mah.L.R. 722 learned Single Judge of this Court has just taken a contrary view holding that under Article 123 of the Limitation Act, the Court had no power and jurisdiction to condone any delay. It was thus ruled that Section 5 does not apply to the application for setting aside ex-parte decree. From the text of judgment it is clear that the judgment of this Court in Nivruti N. Waghmare (supra) was not brought to the notice of the learned Single Judge.

16. At this stage, it is necessary to consider; is it necessary to refer the issue in this case to a larger Bench to resolve conflicting views of the co-ordinate benches of this Court. In my considered opinion, in view of the various judgments of the Supreme Court holding the field, which directly deal with the issue involved in this case, no reference to a larger Bench is necessary.

17. In the case of Sushila Narahari v. Nandkumar, , while dealing with application for condonation of delay in filing application under Order 9, Rule 13 of the Civil Procedure Code, the Apex Court held that delay caused due to advocate's dereliction in duty in withdrawing vakalatnama without notice to his client resulting in an ex-parte decreed against the appellant, was a sufficient cause to condone delay, Refusal to condone delay on the part of the Court was not justified. Para 4 of the said, judgment reads as under ;

"A reading of the facts leave us with no doubt that the advocate has derelicted his duty to inform the client by registered post if there was any non-co-operation on behalf of the appellants. Consequently, when the suit had come up for trial, he had withdrawn his vakalatnama without notice to the appellants. The trial Court set the appellants ex-parte and decreed the suit for specific performance. The application for condonation of delay of 40 days was filed. The Court refused to condone the delay. In view of the above, we find that she is well justified in filing the application with the delay. The delay is accordingly condoned. The ex-parte decree is set aside. The trial Court is directed to give opportunity to the appellants to cross-examine the witness examined by the respondents of the suit and also adduce evidence on her behalf. The trial Court is further directed to dispose of the matter as expeditiously preferably within one year from the date of receipt of the copy of the order."

In the above case, the Supreme Court did recognise applicability of Section 5 of the Limitation Act, 1963 to the application moved under Order 9, Rule 13 of the Civil Procedure Code.

18. In the case of C.K. Lokesh v. P.E. Panduranga Naidu, the Supreme Court considered applicability of Section 5 of the Limitation Act, 1963 to the application moved under Order 9, Rule 13 of the Civil Procedure Code. The Supreme Court in that case held that the District Judge was justified in entertaining and allowing an application for condonation of delay moved under Section 5 of the Limitation Act and that the High Court was in error in interfering with the order condoning delay. Appeal was accordingly allowed. The order of the High Court was set aside. The order of the District Judge was restored. The Supreme Court applied Section 5 to the application moved under Order 9, Rule 13 of the Civil Procedure Code. The judgment clearly stipulates application of Section 5 of the Limitation Act to the application moved under Order 9, Rule 13 of the Civil Procedure Code.

19. In recent judgment in case of M.K. Prasad v. P. Arumugam, , again the Supreme Court had occasion to consider applicability of Section 5 of the Limitation Act, to the application moved under Order 9, Rule 13 of the Civil Procedure Code. It would be relevant to quote observations made by the Supreme Court in that judgment:

"In any case in which a decree is passed ex parte, the defendant can apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the Court regarding the existence of circumstances which prevented him from approaching the Court within the limitation prescribed by the Statute."

"In construing Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The Court has a discretion to condone or refused to condone the delay as is evident from the words "may be admitted" used in the section.........."

In the very same judgment the Apex Court approved following observations of the Madras High Court in the case of Krishna v. Chathappan (1989) ILR 13 Mad 269:

"Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."

In N. Balakrishnan v. M. Krishnamurthy, , the Apex Court observed as under:

"It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometime delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, muchless in revisional jurisdiction unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refused to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusions of the lower Court."

The Apex Court, while concluding, observed in para 9 in the case of M. K. Prasad (supra) as under :

"In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilance but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding an exemplary cost. In the interest of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application, for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well. Consequently, the appeal was allowed by setting aside the impugned order............"

20. In view of the above judgments of the Apex Court, the judgment delivered by the learned Single Judge of this Court in the case of Justice F. Cardoz (supra) being in ignorance of the previous decisions of this Court as well as that of the Supreme Court will have to be regarded as per incurium and cannot be said to be a good law in view of the subsequent judgment of the Supreme Court in the case of M. K. Prasad (cited supra).

21. Now, the next question for consideration is: whether after setting aside the impugned order, the matter should be remitted back to the trial Court for reconsideration on merits or this Court should consider the same on its own merits to cut short further length of litigation.

22. In order to answer this question, one has to turn to the application for condonation of delay. Application for condonation of delay reveals that the judgment and order was delivered on 4-2-2002. Petitioner/Applicant got knowledge of the same on 6-2-2002; when he received notice of demand from the Opponent- Bank. He, immediately, thereafter applied for the certified copies. The same were received by him on 8-3-2002. March 9th, 10th and 12th of 2002 being holidays, no application under Order 9, Rule 13 of the Civil Procedure Code could be moved. It could be moved only on 14th March 2002. As such, there was a delay of about 6 days, on the part of the petitioner, in moving application under Order 9, Rule 13 of Civil Procedure Code for setting aside ex parte decree. Having examined the facts and circumstances of the case, I do not think justice would lie in remanding back the case merely for considering an application seeking condonation of delay of about 6 days on merits.

23. Having heard the parties on merits, on the application seeking condonation of delay, I am inclined to hold that the petitioner/applicant has established sufficient cause for condonation of delay. The delay of 6 days needs to be condoned in the interest of justice for the reasons stated.

24. In the result, the impugned order rejecting application seeking condonation of delay is set aside. Delay in moving application under Order 9, Rule 13 of the Civil Procedure Code is condoned. Matter is remitted back to the trial Court for consideration of the application under Order 9, Rule 13 of the Civil Procedure Code on its own merits in accordance with law, as expeditiously as possible; at any rate, within a period of six months from the date of receipt of the writ of this order. Rule is made absolute in terms of this order with no order as to costs.