Gujarat High Court
Oravel Stays Ltd. (Earlier Known As ... vs Jayesh Ramdebhai Bokhiria on 7 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3393 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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ORAVEL STAYS LTD. (EARLIER KNOWN AS ORAVEL STAYS PVT. LTD.)
Versus
JAYESH RAMDEBHAI BOKHIRIA
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Appearance:
MR JEET B KARIA(11991) for the Petitioner(s) No. 1
MR DIGANT B KAKKAD(6523) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/07/2025
ORAL JUDGMENT
1. The present writ application is filed under Article 227 of
the Constitution of India, seeking the following relief:-
"A. Quash and set aside: (i) the ex parte judgement and decree
both dated 04.05.2022 in Regular Civil Suit No.49 of 2022 by the
Court of learned Second Additional Senior Civil Judge, Porbandar
(Annexure-B) and the order therein dated 20.04.2022 (Annexure-
C),
(ii) order dated 03.05.2023 in Civil Misc. Application No.62 of 2022
(Annexure-D) by the Court of learned Second Additional Senior
Civil Judge, Porbandar which dismissed the application under
Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting
aside of the said ex parte decree dated 04.05.2022, and
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(iii) the judgement dated 30.10.2023 in Misc. Civil Appeal No.5 of
2023 by the Court of learned Principal District Judge, Porbandar
(Annexure-E),
and consequently remand the matter for the Regular Civil Suit
No.49 of 2022 in the Court of learned Second Additional Senior
Civil Judge, Porbandar to be conducted de novo in the presence of
the Petitioner and other defendants;
In the alternative to prayer 6 A. above, grant prayer 6 B. below:
B. Quash and set aside: (i) the order dated 03.05.2023 in Civil
Misc.Application No.62 of 2022 (Annexure-D) by the Court of
learned Second Additional Senior Civil Judge, Porbandar
dismissing application under Order IX Rule 13 of the Code of Civil
Procedure, 1908 for setting aside of the said ex parte decree dated
04.05.2022, and
(ii) the judgement dated 30.10.2023 in Misc. Civil Appeal No.5 of
2023 by the Court of learned Principal District Judge, Porbandar
(Annexure-E),
and consequently the matter be remanded for fresh consideration
of Civil Misc. Application No.62 of 2022 in the Court of learned
Second Additional Senior Civil Judge, Porbandar including on the
aspect of delay/condonation of delay as well as granting liberty to
the Petitioner to file an application for condonation of delay therein;
C. Pending the admission and final hearing of the present Petition,
stay the operation and execution of the ex parte Judgement and
Decree dated 04.05.2022 in Regular Civil Suit No.49 of 2022
(Annexure-B) by the Court of learned Second Additional Senior
Civil Judge, Porbandar;
D. Provide costs; and
E. Pass such other and further orders which this Hon'ble Court
deems fit in proper in the facts and circumstances of the case."
2. THE SHORT FACTS OF THE CASE
2.1. The petitioner herein is the original Defendant No. 1,
whereas the respondent herein is the original plaintiff who
filed Regular Civil Suit No. 49 of 2022 seeking recovery of
Rs.17,36,099/- from the petitioner-Defendant No. 1 and other
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defendants though joined in the suit, were not joined in the
present writ application. For sake of convenience, herein after,
parties to present application will be referred as per their
original position in the suit.
2.2. The Trial Court appears to have decided the suit ex
parte against the defendants, thereby passed judgment and
decree in favor of the plaintiff, whereby directing the
defendants to pay Rs.17,36,099/- with 7% interest from 26th
June, 2020 till realization. Such judgment and decree came to
be passed by the Trial Court on the 4th of May 2022.
2.3. The Defendant No. 1 appears to have filed an
application, being Civil Miscellaneous Application No. 62 of
2022 under Order IX Rule 13 of the Civil Procedure Code,
1908 (hereinafter referred to as the "CPC"), after about four
months from the passing of such decree, albeit without filing
any separate application for seeking condonation of delay in
filing such application. So, the plaintiff appears to have filed
an impugned application below Exhibit 8 in the restoration
application - Civil Miscellaneous Application No. 62 of 2022,
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whereby contended that in the absence of a separate delay
application being not filed in the restoration application, such
restoration application requires to be rejected as having filed
after prescribed period of Limitation Act, 1963. The plaintiff
has placed reliance upon Article 123 of the Limitation Act in
support of his contention so raised in the impugned
application.
2.4. Per contra, Defendant No. 1 submitted before the Trial
Court that as per Article 123 of the Limitation Act, from the
date of knowledge, the restoration application was filed in
time, and as such, there was no delay in filing the restoration
application, and otherwise also, sufficient cause was made out
for any delay that occurred in filing the restoration application.
2.5. After hearing the parties, the Trial Court, vide its
order dated 3rd May 2023, allowed the application of the
plaintiff filed below Exhibit 8 in Civil Miscellaneous
Application No. 62 of 2022 and, consequently, rejected the
restoration application solely on the ground that as no separate
delay application was filed by Defendant No. 1 in the
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restoration application, such restoration application requires to
be rejected.
2.6. The Defendant No. 1 appears to have challenged the
aforesaid order passed by the Trial Court before the Appellate
Court by way of filing Miscellaneous Civil Appeal No. 5 of
2023, which also came to be dismissed by the Appellate Court
vide its judgement/order dated 30th October, 2023.
3. Being aggrieved and dissatisfied with both these orders
passed by the Trial Court as well as the Appellate Court,
Defendant No. 1 has preferred the present application.
4. SUBMISSION OF THE PETITIONER-DEFENDANT NO. 1
4.1. Learned Advocate Mr. A.S.Vakil, with learned
Advocate Mr. Jeet B. Kariya, would submit that the orders
impugned in the present application are bad in law and,
inasmuch as they were not passed in accordance with law,
requires to be quashed and set aside by this Court while
exercising its power under Article 227 of the Constitution of
India.
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4.2. Learned Advocate Mr. Vakil would submit that as per
the settled legal position of law, while filing an application
under Order IX Rule 13 of the CPC, Defendant No. 1 was not
required to file a separate delay application, especially when it
had already explained the delay, if any, in filing such an
application under Order IX Rule 13 of the CPC.
4.3. Learned Advocate Mr. Vakil would further submit that
due to an incorrect address being mentioned in the pre-suit
notice as well as in the suit, as regards Defendant No. 1, no
notice came to be received by Defendant No. 1, which resulted
into passing of the ex parte judgment and decree against it.
4.4. It is submitted that when it came to his knowledge
about passing of such judgment and decree against Defendant
No. 1, immediately, within 30 days from such knowledge,
Defendant No. 1 had filed an application under Order IX Rule
13 of the CPC for setting aside such ex parte judgment/decree,
and as such, there was no delay in filing such application. It is
submitted that courts below have not properly appreciated
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Article 123 of Limitation Act, in its true spirit thereby, resulted
into miscarriage of justice.
4.5. Learned Advocate Mr. Vakil would further submit that
assuming without admitting, that there was a delay of about
four months in filing the application under Order IX Rule 13
of the CPC by Defendant No. 1, the said delay was properly
explained in the application itself, which ought to have been
considered by the Trial Court while adjudicating Civil
Miscellaneous Application No. 62 of 2022, and by not doing
so, it committed a jurisdictional error while allowing the
impugned application filed below Exhibit 8 by the plaintiff in
such application.
4.6. Learned Advocate Mr. Vakil would further submit that
as per the settled legal position of law, "sufficient cause"
which is to be shown while filing an application under Order
IX Rule 13 of CPC or, as the case may be, for the delay in
filing such an application, should be construed liberally, and a
hyper-technical approach is required to be avoided by the Trial
Court while adjudicating such an application.
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4.7. Learned Advocate Mr. Vakil would further submit that
to advance substantial justice between the parties, the Trial
Court should not have rejected application under Order IX Rule
13 of the CPC merely because it was not accompanied by a
separate delay application, and as such, the impugned
application filed by the plaintiff is misconceived in law and
ought to have been rejected.
4.8. To buttress his arguments, Learned Advocate Mr. Vakil
would rely upon the decision of the Hon'ble Supreme Court of
India in the case of Sesh Nath Singh and Anr. vs. Baidyabati
Sheoraphuli Co. Operative Bank Ltd. and Anr. reported in
(2021) 9 SCC 717.
5. SUBMISSION OF THE RESPONDENT-PLAINTIFF
5.1. Per Contra, Learned Advocate Mr. Digant Kakkad
would vehemently submit that this Court should not entertain
the present application at the instance of a defaulting
defendant No.1 who chosen not to appear and contest the suit
and is facing a money decree. It is submitted that this Court
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should not exercise its power under Article 227 of the
Constitution of India in favour of the petitioner - defendant
No.1.
5.2. Learned Advocate Mr. Kakkad would further submit
that the impugned application was correctly filed by the
plaintiff, inasmuch as there was a delay in filing the
application under Order IX Rule 13 of CPC filed by Defendant
No. 1, who was required to file a separate delay application,
which is a mandatory requirement in law, and having not
done so, the Trial Court and, as the case may be, the
Appellate Court have not committed any serious error of law
while rejecting such application, thereby allowed the impugned
application of the plaintiff.
5.3. Learned Advocate Mr. Kakkad would further submit
that there is no provision under the CPC and/or the Limitation
Act which would indicate that there is no requirement to file a
separate delay application. It is submitted that delay in filing
any application requires to be explained by filing a separate
delay application, and if the Court concerned is not satisfied
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with such explanation of delay, the Trial Court may reject such
delay application, and thereafter the impugned application
would not survive.
5.4. Learned Advocate Mr. Kakkad would further submit
that the judgment of the Hon'ble Supreme Court, relied upon
by the petitioner, would not be applicable to the facts of the
present case, inasmuch as when the plaintiff specifically
pointed out before the Trial Court in Civil Miscellaneous
Application No. 62 of 2022 that there was a delay of about
four months in filing such application, it was incumbent upon
Defendant No. 1 to file a separate delay application, and
having chosen not to file it, no error can be found with the
orders of the Trial Court as well as the Appellate Court, which
have rejected Civil Miscellaneous Application No. 62 of 2022.
5.5. To buttress his arguments, Learned Advocate Mr.
Kakkad would rely upon the judgment in the case of
Ashokbhai Ukabhai Molaviya versus Chandraknat Mancharam
Patel reported in 2023 (0) AIJEL-HC 247568.
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6. No other and further submissions are made.
7. Heard learned advocate Mr.A.S.Vakil with learned
advocate Mr.Jeet B. Kariya for the petitioner - defendant no.1
and learned advocate Mr.Digant Kakkad for the respondent -
plaintiff at length.
8. POINT FOR DETERMINATION
8.1. Whether in the facts and circumstance of the case, the
Trial Court and, as the case may be, the Appellate Court
committed any gross error of law and/or a jurisdictional error
while rejecting the impugned application being Civil
Miscellaneous Application No. 62 of 2022, filed by Defendant
No. 1 under Order IX Rule 13 of the CPC on sole ground that
it was not accompanied by any separate delay application?
8.2. Is there any mandatory requirement under law to file
a separate delay application in an application filed under
Order IX Rule 13 and/or Order IX Rule 9 and/or Order IX
Rule 4 of the CPC, having been filed after the period of
limitation prescribed under Limitation Act, 1963?
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9. ANALYSIS
10. At the outset, it would require to be observed that as
such, the issue germane in the present writ application is no
longer remain res integra, being squarely covered by the
following two decisions of the Hon'ble Supreme Court of India.
10.1. I would like to first place reliance upon a decision of
the Hon'ble Supreme Court delivered as far as back in the
year, 2010, in the case of Bhagmal and Others vs. Kunwar Lal
and others, reported in (2010) 12 SCC 159, wherein it was
held thus:-
"12. It is to be seen here that the question of delay was completely
interlinked with the merits of the matter. The appellant-defendants
had clearly pleaded that they did not earlier come to the court on
account of the fact that they did not know about the order passed
by the court proceeding ex parte and also the ex parte decree
which was passed. It was further clearly pleaded that they came
to know about the decree when they were served with the
execution notice. This was nothing, but a justification made
by the appellant-defendants for making Order 9 Rule 13
application at the time when it was actually made. This was
also a valid explanation of the delay. The question of filing Order
9 Rule 13 application was, in our opinion, rightly considered by the
appellate court on merits and the appellate court was absolutely
right in coming to the conclusion that the appellant-defendants
were fully justified in filing the application under Order 9 Rule 13
CPC at the time when they actually filed it and the delay in filing
the application was also fully explained on account of the fact that
they never knew about the decree and the orders starting the ex
parte proceedings against them. If this was so, the Court had
actually considered the reasons for the delay also. Under such
circumstances, the High Court should not have taken the
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hyper technical view that no separate application was filed
under Section 5.
13. The application under Order 9 Rule 13 CPC itself had all
the ingredients of the application for condonation of delay in
making that application. Procedure is after all handmaid of
justice................ "
(emphasis supplied)
10.2. Even recently, on 20th December 2024, the Hon'ble
Supreme Court again reiterated the aforesaid principle, in case
of Dwarika Prasad (D), Thr. Lrs. vs. Prithviraj Singh reported
in 2024 SCC OnLine SC 3828, arising out of Special Leave
Petition (C) No. 11259 of 2022, wherein paras 9, 11, and 12,
held thus:-
"9. We have heard learned counsel for the appellant and perused
the record. We are of the opinion that the High Court has erred in
upholding the order of the Additional District Judge. The Trial Court
had rightly allowed the restoration application filed by the Appellant
under Order IX Rule 13 of CPC. It is well settled that Courts should
not shut out cases on mere technicalities but rather afford
opportunity to both sides and thrash out the matter on merits.
Further, we cannot let the party suffer due to negligent or fault
committed by their counsel. This principle has been enunciated by
this court in the case of Rafiq v. Munshilal1, quoted as follows:
"3. The disturbing feature of the case is that under our
present adversary legal system where the parties
generally appear through their advocates, the obligation of
the parties is to select his advocate, brief him, pay the fees
demanded by him and then trust the learned Advocate to
do the rest of the things. The party may be a villager or
may belong to a rural area and may have no knowledge of
the court's procedure. After engaging a lawyer, the party
may remain supremely confident that the lawyer will look
after his interest. At the time of the hearing of the appeal,
the personal appearance of the party is not only not
required but hardly useful. Therefore, the party having
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done everything in his power to effectively participate in
the proceedings can rest assured that he has neither to go
to the High Court to inquire as to what is happening in the
High Court with regard to his appeal nor is he to act as a
watchdog of the advocate that the latter appears in the
matter when it is listed. It is no part of his job. Mr A.K.
Sanghi stated that a practice has grown up in the High
Court of Allahabad amongst the lawyers that they remain
absent when they do not like a particular Bench. Maybe,
we do not know, he is better informed in this matter.
Ignorance in this behalf is our bliss. Even if we do not put
our seal of imprimatur on the alleged practice by
dismissing this matter which may discourage such a
tendency, would it not bring justice delivery system into
disrepute. What is the fault of the party who having done
everything in his power expected of him would suffer
because of the default of his advocate. If we reject this
appeal, as Mr A.K. Sanghi invited us to do, the only one
who would suffer would not be the lawyer who did not
appear but the party whose interest he represented. The
problem that agitates us is whether it is proper that the
party should suffer for the inaction, deliberate omission, or
misdemeanour of his agent. The answer obviously is in
the negative. Maybe that the learned Advocate absented
himself deliberately or intentionally. We have no material
for ascertaining that aspect of the matter. We say nothing
more on that aspect of the matter. However, we cannot be
a party to an innocent party suffering injustice merely
because his chosen advocate defaulted. Therefore, we
allow this appeal, set aside the order of the High Court
both dismissing the appeal and refusing to recall that
order....."
11. The Appellant has relied upon the following judgments in
support of his submissions. In Bhagmal v. Kunwar Lal this Court
held as follows;
"12. It is to be seen here that the question of delay was
completely interlinked with the merits of the matter. The
appellant-defendants had clearly pleaded that they did not
earlier come to the court on account of the fact that they
did not know about the order passed by the court
proceeding ex parte and also the ex parte decree which
was passed. It was further clearly pleaded that they came
to know about the decree when they were served with the
execution notice. This was nothing, but a justification
made by the appellant-defendants for making Order 9
Rule 13 application at the time when it was actually made.
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This was also a valid explanation of the delay. The
question of filing Order 9 Rule 13 application was, in our
opinion, rightly considered by the appellate court on merits
and the appellate court was absolutely right in coming to
the conclusion that the appellant-defendants were fully
justified in filing the application under Order 9 Rule 13
CPC at the time when they actually filed it and the delay in
filing the application was also fully explained on account of
the fact that they never knew about the decree and the
orders starting the ex parte proceedings against them. If
this was so, the Court had actually considered the reasons
for the delay also. Under such circumstances, the High
Court should not have taken the hypertechnical view that
no separate application was filed under Section 5.
13. The application under Order 9 Rule 13 CPC itself had
all the ingredients of the application for condonation of
delay in making that application. Procedure is after all
handmaid of justice."
12. From the above cases, it is clear that there was no need to
file a separate application for condonation of delay in the
present case as well. The High Court has erred in taking a
hyper technical view and concluding that there was violation
of mandatory provision of law. Endorsing such a view would
effectively mean ignoring the purpose of judicial procedure. The
procedure cannot stand in the way of achieving just and fair
outcome. In the present case, the Appellant acted bona fide and
diligently. His conduct does not violate any rule of law."
(emphasis supplied)
10.3. Thus, in view of the aforesaid authoritative
pronouncements of the Hon'ble Supreme Court of India, there
should not be any cavil on the issue that whenever an
application is filed by plaintiff/defendant under Order IX Rule
4 of the CPC and/or under Order IX Rule 9 and/or Order IX
Rule 13 of the CPC, as the case may be, before the Trial
Court, no separate delay application needs to be filed in a case
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where such application is filed after the period of limitation as
prescribed under the Limitation Act, 1963 i.e. Article 122 and
or Article 123.
11. Now, adverting to the facts of the present case, The Trial
Court has completely lost sight of the aforesaid position of law
when it accepted the impugned application filed below Exhibit
8 by the plaintiff, thereby, it has accepted the plea of the
plaintiff that as Defendant No. 1 had filed the restoration
application beyond the period of 30 days from the passing of
the decree and there was a delay of about four months in
filing such application, and having not filed any separate delay
application, such application filed under Order IX Rule 13 of
the CPC requires to be rejected.
12. The Appellate Court, though it discussed all the facts and
circumstances of the matter and also placed reliance upon the
provisions of law, i.e., Order IX Rule 13 of the CPC and
Article 123 of the Limitation Act, and also the fact that Section
5 of the Limitation Act shall be applicable to applications
made under Order IX Rule 13 of CPC as per the Gujarat
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Amendment, as referred in its impugned order, despite that,
rejected the appeal of Defendant No. 1.
13. According to my view, the Trial Court as well as the
Appellate Court have both committed a serious error of law
and also jurisdictional error by allowing the impugned
application filed below Exhibit 8 by the plaintiff and dismissing
Miscellaneous Civil Appeal No. 5 of 2023 filed by Defendant
No. 1, respectively, and consequently, rejecting the application
filed by Defendant No. 1 under Order IX Rule 13 of the CPC
on the hyper-technical ground that it was not accompanied by
a separate delay application. As such, the issue involved in the
matter being covered by the aforesaid two direct decisions, the
impugned orders passed by the Trial Court as well as the
Appellate Court require to be quashed and set aside.
14. Nonetheless, learned advocate Mr. Kakkad has raised
several grounds/submissions in support of his arguments and
also relied upon the decision of Coordinate Bench of this
Court, which, after considering the decision of the Hon'ble
Supreme Court in the case of Sesh Nath Singh (supra), held
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that in the absence of a separate delay application and in not
seeking condonation of delay in filing such an application
under Order IX Rule 4 of the CPC, no error can be found in
the order passed by the Trial Court while rejecting such
application on the ground of not filing a separate delay
application as application was filed beyond the period of
limitation. So, in view of aforesaid, I have to deal with this
submission and to examine as to whether the decision of the
Coordinate Bench of this Court passed in the case of
Ashokbhai (supra) can be said to be the correct law or not.
15. I have minutely gone through the decision of the
Coordinate Bench of this Court in the case of Ashokbhai
(supra), wherein the aforesaid decisions of the Supreme Court
in the case of Bhagmal (supra) was not brought to its notice,
as it does not appear that it has been considered/noticed.
16. Be that as it may, the judgment on which reliance was
placed by the Coordinate Bench of this Court while taking the
aforesaid view is a case of Ragho Singh vs. Mohan Singh and
others reported in (2001) 9 SCC 717, and so also another
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decision of Coordinate Bench of this Court in the case of
Kalpeshbhai Natwarlal Patel vs. State of Gujarat and others
reported in 2009 (3) GLH 372.
16.1. It appears that in a case of Ragho Singh (Supra), an
appeal was filed before the Additional Collector with 10-day
delay, wherein no separate delay application was filed, and in
that background of facts, the Hon'ble Supreme Court did not
disturb the order passed by the High Court, which had set
aside the order passed by the Board of Revenue, which upheld
the order of Additional Collector entertaining the appeal
without there being an application seeking condonation of
delay in filing the appeal as according to High Court, such
recourse is not permissible without filing separate delay
application. The facts and provision of law in said case was
complete different than case on hand.
16.2. Likewise, in the Kalpeshbhai (supra) also, it is not
arising out of any proceeding like the present one but an
observation made by this Court, in the aforesaid decision in
the context of peculiar facts of that case, which arose out of
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tenancy proceedings, unlike civil proceeding in the case on
hand. Thus, the ratio of decision in the case of Kalpesh (supra)
would not be applicable at all in a case like the present one.
16.3. As such, when a special appeal is filed before
competent authority, like Collector, under any Special Act, as
per the provisions of such Special Act, which may requires to
file the separate delay application seeking condonation of
delay, and if not filed, would stand on a completely different
footing than an application filed under Order IX Rule 4 and/or
Order IX Rule 9 and/or Order IX Rule 13 of CPC, as in the
aforesaid provisions of the CPC, "sufficient cause" is the
paramount consideration to be considered while adjudicating
such application, which is also a ground to be considered by
the court while condoning the delay.
16.4. Thus, whenever an application is filed under Order IX
Rule 4 and/or Order IX Rule 9 and/or Order IX Rule 13 of
CPC and/or an application is filed under any other order of
CPC, having similar provision, it cannot be equated with an
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appeal proceeding to be filed either before a civil court and/or
before any special authority.
16.5. It would not be out of place to mention here that if
there is any regular civil appeal would have been filed under
Order XLI by any party and there is a delay in filing such
appeal, a separate delay application requires to be filed as per
Rule 3A of Order XLI of CPC, which is a mandatory
requirement under law and in that case, in absence of separate
delay application, the appeal would not be maintainable.
16.6. Thus, according to my view, the decision of the
Supreme Court in the case of Ragho Singh (supra) and co-
ordinate bench of this Court in the case of Kalpesh (supra)
would not ipso facto apply in cases wherein an application is
filed under Order IX Rule 4, Order IX Rule 9, or Order IX
Rule 13 of the CPC, as the case may be.
17. So far as the decision of the Hon'ble Supreme Court in
the case of Sesh Nath Singh (supra) is concerned, wherein it
was held thus:-
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"61. Section 5 of the Limitation Act, 1963 does not speak of
any application. The section enables the court to admit an
application or appeal if the applicant or the appellant, as the
case may be, satisfies the court that he had sufficient cause
for not making the application and/or preferring the appeal,
within the time prescribed. Although, it is the general practice
to make a formal application under Section 5 of the
Limitation Act, 1963, in order to enable the court or tribunal
to weigh the sufficiency of the cause for the inability of the
appellant applicant to approach the court/tribunal within the
time prescribed by limitation, there is no bar to exercise by
the court/tribunal of its discretion to condone delay, in the
absence of a formal application.
62. A plain reading of Section 5 of the Limitation Act
makes it amply clear that, it is not mandatory to file an
application in writing before relief can be granted under
the said section. Had such an application been
mandatory, Section 5 of the Limitation Act would have
expressly provided so. Section 5 would then have read
that the court might condone delay beyond the time
prescribed by limitation for filing an application or appeal, if
on consideration of the application of the appellant or the
applicant, as the case may be, for condonation of delay, the
court is satisfied that the appellant applicant had sufficient
cause for not preferring the appeal or making the application
within such period. Alternatively, a proviso or an Explanation
would have been added to Section 5, requiring the appellant
or the applicant, as the case may be, to make an application
for condonation of delay. However, the court can always
insist that an application or an affidavit showing cause
for the delay be filed. No applicant or appellant can
claim condonation of delay under Section 5 of the
Limitation Act as of right, without making an
application."
(emphasis supplied)
17.1. The plain reading of the aforesaid decision of the
Hon'ble Supreme Court and its ratio binding to this Court
would indicate that in a case where the Court insists on the
filing of a separate delay application by the applicant while
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adjudicating such type of applications, having been filed under
Order IX Rule 13 of the CPC, etc., in that eventuality, the
applicant is required to file a separate delay application;
otherwise not.
17.2. It is very clearly observed that while filing such kind
of application, wherein there was delay in filing such
application, no separate delay application as such is required
to be filed.
17.3. According to my view, the ratio of the decision of the
Supreme Court in the case of Sesh Nath Singh (supra) would
be that there is no requirement under law to file a separate
delay application when an applicant files an application in the
proceeding like under Order IX Rule 4 and/or Order IX Rule 9
and/or Order IX Rule 13 of the CPC, as the case may be,
unless insisted upon by the Court.
18. Thus, according to my view, in light of the authoritative
pronouncement of the Hon'ble Supreme Court of India in the
cases of Bhagmal (Supra), Dwarika Prasad (supra), and Sesh
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Nath Singh (supra), the view taken by the Coordinate Bench of
this Court in the case of Ashokbhai (Supra) is not the correct
position of law, which, according to my view, is per incuriam,
having not been found to be in consonance with the law laid
down by the Supreme Court in the above-referred decisions.
19. Having so discussed position of law and facts herein
above which are very eloquent, none of submissions made by
learned advocate Mr. Kakkad impressed this Court to endorse
the view of Trial Court confirmed by Appellate Court, but
would like to accept submissions of learned advocate Mr.
Vakil.
20. CONCLUSION
20.1. According to my view, as per the settled legal position
of law as discussed hereinabove, there is no requirement under
law to file a separate delay application in an application being
filed either under Order IX Rule 4 and/or Order IX Rule 9
and/or Order IX Rule 13 of the CPC, even though filed after
period of limitation.
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20.2. Nonetheless, the Court is required to decide whether
any sufficient cause has been made out from a bare reading of
such application which prevented the applicant from filing such
application beyond prescribed period of limitation, apart from
the sufficient cause, which prevented the applicant from not
appearing when the suit was called on for hearing.
20.3. The upshot of the aforesaid discussion, observations,
and reasons, I am of the view that the Trial Court as well as
the Appellate Court have committed a gross error of law and,
inasmuch as a jurisdictional error while allowing the impugned
application filed below Exhibit 8 by the plaintiff in Civil
Miscellaneous Application No. 62 of 2022.
20.4. The Trial Court egregiously erred in rejecting Civil
Miscellaneous Application No. 62 of 2022 filed by Defendant
No. 1 which erroneously confirmed by Appellate Court when
dismissed Misc. Civil Appeal No.5 of 2023.
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20.5. Consequently, the impugned orders are hereby quashed
and set aside and the matter is remanded back to the Trial
Court.
20.6. Having so held that no separate delay application
needs to be filed along with Civil Miscellaneous Application
No. 62 of 2022, the Civil Miscellaneous Application No. 62 of
2022 is restored back on its original file of Trial Court.
20.7. The Trial Court is hereby directed to hear and decide
Civil Miscellaneous Application No. 62 of 2022 on its own
merits.
20.8. If the Trial Court is of the opinion that there was a
delay in filing Civil Miscellaneous Application No. 62 of 2022,
then, the aspect of sufficient cause being made out by the
applicant-Defendant No. 1 while filing Civil Miscellaneous
Application No. 62 of 2022 after the period of limitation as
prescribed under Article 123 of the Limitation Act, be
examined along with the sufficient cause made out by the
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defendant No.1 having not appeared when the suit was called
on for hearing.
20.9. It is also open for the Trial Court to direct the
defendant no.1 - applicant to file an appropriate separate
delay application in case of necessity, which can be done so in
view of the ratio of Sesh Nath Singh (supra).
20.10. The parties are at liberty to file their appropriate
written response/submissions in support of their respective
defences before the Trial Court while pursuing Civil
Miscellaneous Application No. 62 of 2022.
20.11. The Trial Court is hereby directed to decide Civil
Miscellaneous Application No. 62 of 2022 in accordance with
the law as early as possible, preferably within a period of two
months from the date of receipt of a copy of this order, albeit
after giving an opportunity of hearing to all the parties
concerned and so also without being influenced by any of the
observations made either by Trial Court or Appellate Court
while passing impugned orders and/or this Court hereinabove.
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20.12. Rule is made absolute to the aforesaid extent. No
order as to costs.
Sd/-
(MAULIK J.SHELAT,J)
MOHD MONIS
