Full Judgment Text
2025 INSC 672
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2025
[Arising out of SLP (C) No. 17575 of 2023]
Thirunagalingam ……..Appellant
Versus
Lingeswaran & Anr. ……Respondents
J U D G M E N T
SATISH CHANDRA SHARMA, J.
1. Leave granted.
2. The present appeal is arising out of order dated 25.04.2023
passed by the Madurai Bench of Madras High Court in
C.R.P.(MD) No. 1113 of 2023 and CMP (MD) No. 5363 of 2023
(hereinafter “ Impugned Order ”).
3. The aforesaid order was arising out of order dated
08.02.2023 passed by the Principal District and Sessions Judge,
Ramanathapuram (hereinafter “ Trial Judge ”), by which the Trial
Signature Not Verified
Digitally signed by
RADHA SHARMA
Date: 2025.05.13
17:34:56 IST
Reason:
SLP (C) No. 17575/2023 Page 1 of 18
Judge has dismissed I.A. No. 1 of 2022 in unnumbered A.S. No.
_______ of 2022 on the file of the Court.
4. The facts of the case reveal that a sale agreement was
executed on 17.08.2015 between the plaintiff (hereinafter
“ Appellant ”) and defendant (hereinafter “ Respondent No. 1 ”)
for a consideration of Rs. 3 lakhs in respect of the suit property
situated at Nainarkoil @ Naganathasamoothiram Village. The
Respondent No. 1 in the present case failed to execute the sale
deed pursuant to the sale agreement dated 17.08.2015 and in
those circumstances, the Appellant preferred a civil suit before
the Sub Court, Paramakudi, on 21.09.2015 i.e. O.S. No.
110/2015, praying for relief of specific performance of sale
agreement dated 17.08.2015. The facts further reveal that during
the pendency of the aforesaid suit, the Respondent No. 1
executed a sale deed in favour of defendant no. 2 (hereinafter
“ Respondent No. 2 ”) on 26.11.2015. In the civil suit i.e. O.S.
No. 110/2015, both the defendants filed their written statement;
however, at a later stage, stopped appearing in the matter and in
those circumstances, the defendants were proceeded against ex-
parte on 07.02.2017. The trial court finally passed an ex-parte
decree on 07.02.2017 and the Appellant thereafter preferred an
Execution Petition i.e. E.P. No. 10/2017. On account of execution
proceedings, the sale deed was also executed in favour of the
Appellant.
SLP (C) No. 17575/2023 Page 2 of 18
5. The Respondent No. 1 and Respondent No. 2 preferred
two separate applications under Order IX Rule 13 of the Code of
Civil Procedure (hereinafter “ CPC ”) i.e. I.A. No. 119/2015 and
I.A. No. 462 of 2018 along with applications for condonation of
delay of 712 and 467 days respectively, and the trial court
allowed both the applications i.e. I.A. No. 462 of 2018 and I.A.
No. 119/2018 vide order dated 19.08.2019, setting aside ex-parte
decree order and condoned the delay.
6. The Appellant preferred a revision before the High Court
by filing CRP(MD) No. 1688 and 1689 of 2019 and the same was
allowed by the High Court vide order dated 09.11.2021. The
Respondents being aggrieved by the order of the High Court,
dated 09.11.2021 preferred Special Leave Petition (C) Nos.
2054-55 of 2022 and this Court dismissed the said Special Leave
Petitions by an order dated 25.02.2022 meaning thereby that the
ex-parte judgment and decree came to be affirmed by this Court.
7. The Respondents, after the matter attained finality, on
account of dismissal of Special Leave Petitions vide order dated
25.02.2022, initiated the second round of litigation by preferring
an appeal against the ex-parte judgment and decree. The appeal
was barred by limitation and, therefore, an application was also
filed for condoning the delay of 1116 days in filing appeal under
Order XLI Rule 3A read with Section 151 of the CPC before the
SLP (C) No. 17575/2023 Page 3 of 18
First Appellate Court. The First Appellate Court by an order dated
08.02.2023 dismissed the I.A. No. 1 of 2022 in unnumbered A.S.
No. ______ of 2022 which was for condonation of delay of 1116
days and being aggrieved by the order passed by the first
Appellate Court, dated 08.02.2023, a revision was preferred
before the High Court i.e. C.R.P.(MD) No. 1113 of 2023. The
High Court, after hearing the parties has set aside the order dated
08.02.2023 vide Impugned Order dated 25.04.2023 upon a
payment of costs of Rs. 1 lakh, meaning thereby a delay of 1116
days was condoned by the High Court. The operative paragraph
of the order passed by the High Court reads as under:
“19. Considering the fact that the respondent
has been put to inconvenience by the petitioners
and since the respondent has deposited the
balance sale consideration and also invested
the balance amount together with the stamp
duty, I am inclined to intervene in favour of the
petitioners by directing the petitioners to pay a
sum of Rs. 1 lakh to the respondent. This
amount shall be paid directly to the respondent
on or before 07.06.2023. Subject to such
payment, the application filed by the petitioners
in I.A. No. 1 of 2022 to condone the delay before
the Principal District and Sessions Court,
Ramanathapuram, shall stand allowed. The
learned Principal District and Sessions Judge,
Ramanathapuram, shall number the appeal and
dispose it on merits as expeditiously as
possible, preferably, within a period of nine
months in accordance with law. The petitioners
shall report compliance by filing a suitable
SLP (C) No. 17575/2023 Page 4 of 18
memo before the learned Principal District and
Sessions Judge, Ramanathapuram.”
8. The appellant/plaintiff being aggrieved by the order dated
25.04.2023 passed by the High Court allowing the civil revision
has preferred the present appeal.
SUBMISSIONS MADE BY THE APPELLANT/
PLAINTIFF
9. The learned counsel for the appellant submitted that no
clear explanation is forthcoming for the delay that was caused in
the first round of litigation while filing the application under
Section 5 of the Limitation Act, 1963, to condone the delay under
Order IX Rule 13 of the CPC. Furthermore, the High Court failed
to appreciate that the delay caused in filing the appeal under
Section 96(2) read with Order XLI Rule 1 of CPC alone can be
excluded by applying the principle in Section 14 of the
Limitation Act, 1963. The delay of 467 days and 712 days that
was caused after the Respondents were set ex-parte , was found
to be unsatisfactory as held by the High Court in earlier C.R.P
(MD) Nos.1688 & 1689 of 2019, vide order dated 09.11.2021,
which has been affirmed by this Hon’ble Court while dismissing
the Special Leave Petitions of the respondents/defendants in SLP
Nos. 2054 and 2055 of 2022. It was submitted that the
SLP (C) No. 17575/2023 Page 5 of 18
Respondents cannot reagitate the very same question which has
attained finality in the earlier proceedings.
10. Moreover, it has been argued that the High Court erred in
applying the decision of the Hon’ble Supreme Court in N.
Mohan v. R. Madhu (2020) 20 SCC 302 in the facts of the
present case. In that case, the Respondents were never served
with the suit summons, but in the present case, the
respondents/defendants were properly served with the suit
summons, they appeared and filed a Vakalatnama, and also filed
their written statement. Moreover, in N. Mohan’s case (supra),
the issue dealt with was the maintainability of the appeal filed
under Section 96(2) of CPC against the ex-parte decree. The
same is not disputed by the appellant/plaintiff herein, as an appeal
under Section 96(2) of the CPC is maintainable. The question is
whether the enormous delay of 1116 days can be condoned
without any proper explanation.
11. That apart, it was submitted that the Court has not laid
down any ratio to be followed in the above case relied upon. It
was further submitted that the Court has taken note of the bona
fide conduct of the parties (the defendants therein) and condoned
the delay, and that the said order was not based on any legal
principle. It was further submitted that the High Court ought not
to have interfered with the order of the First Appellate Court, as
SLP (C) No. 17575/2023 Page 6 of 18
the respondents/defendants were negligent in not filing the
appeal in time and the delay has not been properly explained.
12. It was further submitted that the order of the First
Appellate Court is well-reasoned and called for no interference.
Further, after dismissal of the application filed under Order IX
Rule 13 of the CPC for condonation of delay, even though the
appeal filed under Section 96(2) of the CPC against the ex-parte
decree dated 7.2.2017 was maintainable, the huge delay of 1116
days of filing the said appeal cannot be condoned without proper
explanations.
13. Further, it was submitted that the High Court failed to
appreciate the conduct of the respondents/defendants. There is no
bar for them to file the Appeal under Section 96(2) of the CPC
against the ex-parte decree while pursuing the application filed
under Order IX Rule 13 of the CPC for condonation of delay.
Therefore, in any case, the impugned judgment is erroneous,
perverse, and warrants interference; it ought to be set aside by
this Hon'ble Court.
SUBMISSIONS MADE BY THE RESPONDENTS/
DEFENDANTS
14. Learned counsel for respondents/defendants vehemently
argued that the non-representation before the Trial Court by
SLP (C) No. 17575/2023 Page 7 of 18
respondent no. 1/defendant no. 1 and respondent no. 2/defendant
no. 2 was neither wilful nor wanton.
15. It was further submitted that a plausible explanation has
been given by the Respondents for the delay in preferring the said
petition, and the High Court was convinced with the reasonable
explanation given by the Respondents, and thereafter was pleased
to pass the Impugned Order dated 25.04.2023 in favour of the
Respondents.
16. It was further submitted that the High Court correctly
relied upon the judgment of N. Mohan (supra) while passing the
impugned order dated 25.04.2023, as it squarely applies to the
instant case. The High Court, in its judicial wisdom, was of the
considered opinion that the facts and circumstances of the instant
case are similar to the aforesaid judgment.
17. Moreover, the learned counsel for Respondents argued that
it is trite law that the application filed under Order IX Rule 13 of
the CPC and the application filed under Order 41 Rule 3(A) of
the CPC stand on a different footing. Further, in a similar case,
the Hon’ble Supreme Court has laid down the dictum in Bhanu
Kumar Jain v. Archana Kumar (2005) 1 SCC 787 , and has
postulated as follows:
“38. The dichotomy, in our opinion, can be resolved
by holding that whereas the defendant would not be
SLP (C) No. 17575/2023 Page 8 of 18
permitted to raise a contention as regards the
correctness or otherwise of the order posting the suit
for ex parte hearing by the trial court and/or
existence of a sufficient case for non-appearance of
the defendant before it, it would be open to him to
argue in the first appeal filed by him under Section
96(2) of the Code on the merits of the suit to enable
him to contend that the materials brought on record
by the plaintiffs were not sufficient for passing a
decree in his favour or the suit was otherwise not
maintainable. Lack of jurisdiction of the court can
also be a possible plea in such an appeal. We,
however, agree with Mr Chaudhari that the
“Explanation” appended to Order 9 Rule 13 of the
Code shall receive a strict construction as was held
by this Court in Rani Choudhury [(1982) 2 SCC
596], P. Kiran Kumar [(2002) 5 SCC 161] and
Shyam Sundar Sarma v. Pannalal Jaiswal [(2005) 1
SCC 436 : (2004) 9 Scale 270].”
Hence, in the light of the ratio laid down in the hereinabove
judgment, it is manifestly implied that the Respondents are
entitled to prefer the first appeal before the Hon’ble District &
Session Judge, Ramanathapurarn, Tamil Nadu and there is no bar
due to the dismissal of their earlier petition filed under Order IX
Rule 13 of the CPC.
18. Further, regarding the delay of 1116 days in filing the
condonation of delay petition, the learned counsel referred to
Section 14 of the Limitation Act and argued that in the instant
case, the Respondents after exhausting their legal rights under
Order IX Rule 13 of the CPC with informed legal counselling
SLP (C) No. 17575/2023 Page 9 of 18
decided to exercise their legal right to refer the first appeal as
against the final decretal order and judgment passed by the Trial
Court. The time taken during the pendency of the Petition under
Order IX Rule 13 of the CPC and also the revision petitions
before the various judicial forums necessarily have to be
excluded. A bare reading of Section 14 of the Limitation Act
enjoins upon the adjudicating authorities to exclude the time thus
taken during the pendency of petition filed under Order IX Rule
13 of the CPC needs to be taken into consideration for condoning
the delay in filing the first appeal and, therefore, the High Court
rightly cited and discussed the said provision and was pleased to
pass the impugned order dated 25.04.2023 in favour of the
Respondents.
19. It is further submitted that the High Court vide impugned
order directed the Respondents to pay a sum of Rs. 1 lakh to the
Appellant. Accordingly, the Respondents paid a sum of Rs. 1 lakh
to the Appellant, but he refused to receive the same. Hence, the
Respondents deposited the said amount with the court on
05.06.2023 and thereby complied with the order of the High
Court. The said conduct of the Respondents proves his bona fide
credentials.
20. It was submitted that the Respondent No. 2 holds a valid
title as bona fide purchaser in respect of the Suit Schedule
SLP (C) No. 17575/2023 Page 10 of 18
property vide registered Sale Deed dated 26.11.2015 executed by
Respondent No. 1 in favour of the Respondent No.2 at the Sub-
Registrar's Office. Since then, to date, the Respondent No. 2 is in
possession and enjoyment of the disputed property.
21. Further, it was submitted that since Respondents are
having the valid title and are also in possession and enjoyment of
the Suit Schedule Property, the balance of convenience is in their
favour only.
22. Moreover, learned counsel argued that irreparable damage,
loss, and hardships would be caused to the Respondents if the
instant appeal is allowed. At the same time, no loss or hardships
could happen to the Appellant if the instant appeal is dismissed.
DISCUSSION AND ANALYSIS
23. We have carefully considered the submissions and perused
the impugned judgment and materials on record. The point at
issue for consideration is whether the delay is to be condoned or
not, and if the delay is justifiable, then whether the case should
be allowed to proceed on merits, or be dismissed on procedural
grounds.
24. The facts of the present case are not in dispute. In the first
round of litigation, Respondents could not succeed in setting
aside the ex-parte decree passed by the Trial Court in the
SLP (C) No. 17575/2023 Page 11 of 18
aforesaid suit, and hence they preferred the appeal suit along with
the application for condonation of delay of 1116 days. The said
application for condonation of delay of 1116 days was dismissed
by the First Appellate Court vide order dated 08.02.2023.
However, the High Court, while passing the impugned order
dated 25.04.2023, relied upon the judgment of this Court passed
in N. Mohan (supra) and allowed the application for
condonation of delay of 1116 days and directed the First
Appellate Court to proceed with the appeal suit on merits.
25. In the present case, from the perusal of the record, it can
be observed that in the first round of litigation, the Respondents
were duly served with the summons after institution of the
aforesaid suit. In response, they entered an appearance and filed
their written statement, thereby submitting themselves to the
jurisdiction of the Trial Court. However, despite being present in
the initial stage of proceedings, Respondents choose not to
further appear before the Trial Court continuously. Consequently,
the Trial Court was constrained to proceed ex-parte against them.
Further, it is pertinent to note that the High Court has relied upon
N. Mohan (supra), while passing the impugned order, however,
on comparison, the facts of the said case are different from the
case at hand. In the said case, the summons to the Respondents
was sent to their old address, and the same was returned
unserved, and subsequently, the ex-parte decree was passed. In
SLP (C) No. 17575/2023 Page 12 of 18
stark contrast, the present case is distinguishable since the
summons was duly served and the respondents/defendants not
only appeared but actively participated by filing their written
statement.
26. Therefore, the dictum in N. Mohan (supra) cannot be
applied to the instant matter but the High Court placed reliance
upon the aforementioned judgment leading to the
misappreciation of the facts. Consequently, the impugned order
dated 25.04.2023 passed by the High Court is perverse in nature
and is not in conformity with the legal principles. Accordingly,
the impugned order dated 25.04.2023 is hereby set aside.
27. Proceeding further on the issue of condonation of delay of
1116 days in filing the appeal suit, we concur with the findings
of the First Appellate Court passed in order dated 08.02.2023,
that the Respondents raised the very same grounds in the present
application for condonation of delay of 1116 days, that were
raised in the applications (I.A. Nos. 462 of 2018 and 119 of 2019)
filed under Order IX Rule 13 of the CPC in the earlier round of
litigation; that is, the delay was neither wilful nor wanton. It is an
admitted fact that the said applications (I.A. Nos. 462 of 2018
and 119 of 2019) were allowed by the Trial Court, which by way
of civil revision petitions (C.R.P. (MD) Nos. 1688 & 1689 of
2019) were challenged before the High Court and the High Court
SLP (C) No. 17575/2023 Page 13 of 18
reversed the order of the Trial Court. It is not in dispute that
subsequently the order of the High Court was also affirmed by
this Court vide order passed in S.L.P. (C) Nos. 2054 & 2055 of
2022, thereby dismissing the condonation of delay petitions filed
by the Respondents.
28. Since the Respondents assigned the very same reasons in
I.A. No. 1 of 2022 in Unnumbered A.S. No… of 2022 as raised
in I.A. Nos. 462 of 2018 and 119 of 2019 that had already been
dismissed by this Court vide S.L.P. (C) Nos. 2054 & 2055 of
2022, the application for condonation of delay of 1116 days
cannot be sustained. This Court in S.L.P. (C) Nos. 2054 & 2055
of 2022, after going through the evidence placed on record,
rightly held that the delay has not been properly explained. The
relevant portion of the order is reproduced hereunder:
“5. We are in complete agreement with the view
taken by the High Court. Once it was found even by
the learned trial Court that delay has not been
properly explained, and even there are no merits in
the application for condonation of delay, thereafter,
the matter should rest there and the condonation of
delay application was required to be dismissed. The
approach adopted by the learned trial Court that,
even after finding that, in absence of any material
evidence it cannot be said that the delay has been
explained and that there are no merits in the
application, still to condone the delay would be
giving a premium to a person who fails to explain
the delay and who is guilty of delay and laches. At
SLP (C) No. 17575/2023 Page 14 of 18
this stage, the decision of this Court in the case of
Popat Bahiru Goverdhane v. Land Acquisition
Officer, reported in (2013) 10 SCC 765 is required
to be referred to. In the said decision, it is observed
and held that the law of limitation may harshly
affect a particular party but it has to be applied with
all its rigour when the statute so prescribes. The
Court has no power to extend the period of
limitation on equitable grounds. The statutory
provision may cause hardship or inconvenience to a
particular party but the Court has no choice but to
enforce it giving full effect to the same.
5.1 In the case of Maniben Devraj Shah v.
Municipal Corporation of Brihan Mumbai, (2012) 5
SCC 157, in paragraph 14, it is observed and held
as under:
“The law of limitation is founded on public policy.
The Limitation Act, 1963 has not been enacted with
the object of destroying the rights of the parties but
to ensure that they approach the court for
vindication of their rights without unreasonable
delay. The idea underlying the concept of limitation
is that every remedy should remain alive only till
the expiry of the period fixed by the legislature. At
the same time, the courts are empowered to condone
the delay provided that sufficient cause is shown by
the applicant for not availing the remedy within the
prescribed period of limitation.”
6. In view of the above and for the reasons stated
above, we are in complete agreement with the view
taken by the High Court. The Special Leave
Petitions stand dismissed.
SLP (C) No. 17575/2023 Page 15 of 18
Pending application, if any, also stands disposed
of.”
29. Therefore, this Court, having previously adjudicated upon
the application for condonation of delay filed in I.A. Nos. 462 of
2018 and 119 of 2019, and having rendered a reasoned order
passed in S.L.P. (C) Nos. 2054 & 2055 of 2022, after a thorough
perusal of the evidence and materials on record, held that the
grounds put forth were insufficient to constitute ‘sufficient cause’
under Section 5 of the Limitation Act, 1963. An order of this
Court, passed upon judicial consideration, attains finality unless
set aside through appropriate appellate or review mechanisms.
30. In the present appeal, the Respondents seek to raise the
very same reason to condone the delay as were previously
canvassed, without placing any fresh or additional material to
distinguish the current reason from the one already discussed and
dismissed. This Court is of the considered view that such a
repetition of grounds already scrutinized and held untenable
amounts to an abuse of the process of law. Although the
applications for condonation of delay are filed under different
provisions of the law but the said provisions provide for
concurrent remedies through different mechanisms and if the
application filed under one provision has already been dismissed
by a court of competent jurisdiction, by applying its judicial mind
and held that the reasons for delay were not sufficient, a
SLP (C) No. 17575/2023 Page 16 of 18
subsequent application filed under different provision, reiterating
the same contentions or grounds of delay, cannot be entertained.
31. It is a well-settled law that while considering the plea for
condonation of delay, the first and foremost duty of the court is
to first ascertain the bona fides of the explanation offered by the
party seeking condonation rather than starting with the merits of
the main matter. Only when sufficient cause or reasons given for
the delay by the litigant and the opposition of the other side is
equally balanced or stand on equal footing, the court may
consider the merits of the main matter for the purpose of
condoning the delay.
32. Further, this Court has repeatedly emphasised in several
cases that delay should not be condoned merely as an act of
generosity. The pursuit of substantial justice must not come at the
cost of causing prejudice to the opposing party. In the present
case, the respondents/defendants have failed to demonstrate
reasonable grounds of delay in pursuing the matter, and this
crucial requirement for condoning the delay remains unmet.
33. Therefore, in the case at hand, once it has been established
that the reasons provided for condoning the delay in the
application filed are not sufficient, we are not inclined to go into
the merits of the contentions raised by the learned counsel of
Respondents regarding Section 14 of the Limitation Act, 1963.
SLP (C) No. 17575/2023 Page 17 of 18
34. In view of the aforesaid facts and circumstances, this Court
is of the considered opinion that the Impugned Order dated
25.04.2023 passed by the High Court is liable to be set aside and
is, accordingly, set aside.
35. The appeal stands allowed.
36. Pending application(s), if any, shall stand disposed of.
……………………………………J.
[B.V.NAGARATHNA]
……………………………………J.
[SATISH CHANDRA SHARMA]
NEW DELHI
May 13, 2025
SLP (C) No. 17575/2023 Page 18 of 18
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2025
[Arising out of SLP (C) No. 17575 of 2023]
Thirunagalingam ……..Appellant
Versus
Lingeswaran & Anr. ……Respondents
J U D G M E N T
SATISH CHANDRA SHARMA, J.
1. Leave granted.
2. The present appeal is arising out of order dated 25.04.2023
passed by the Madurai Bench of Madras High Court in
C.R.P.(MD) No. 1113 of 2023 and CMP (MD) No. 5363 of 2023
(hereinafter “ Impugned Order ”).
3. The aforesaid order was arising out of order dated
08.02.2023 passed by the Principal District and Sessions Judge,
Ramanathapuram (hereinafter “ Trial Judge ”), by which the Trial
Signature Not Verified
Digitally signed by
RADHA SHARMA
Date: 2025.05.13
17:34:56 IST
Reason:
SLP (C) No. 17575/2023 Page 1 of 18
Judge has dismissed I.A. No. 1 of 2022 in unnumbered A.S. No.
_______ of 2022 on the file of the Court.
4. The facts of the case reveal that a sale agreement was
executed on 17.08.2015 between the plaintiff (hereinafter
“ Appellant ”) and defendant (hereinafter “ Respondent No. 1 ”)
for a consideration of Rs. 3 lakhs in respect of the suit property
situated at Nainarkoil @ Naganathasamoothiram Village. The
Respondent No. 1 in the present case failed to execute the sale
deed pursuant to the sale agreement dated 17.08.2015 and in
those circumstances, the Appellant preferred a civil suit before
the Sub Court, Paramakudi, on 21.09.2015 i.e. O.S. No.
110/2015, praying for relief of specific performance of sale
agreement dated 17.08.2015. The facts further reveal that during
the pendency of the aforesaid suit, the Respondent No. 1
executed a sale deed in favour of defendant no. 2 (hereinafter
“ Respondent No. 2 ”) on 26.11.2015. In the civil suit i.e. O.S.
No. 110/2015, both the defendants filed their written statement;
however, at a later stage, stopped appearing in the matter and in
those circumstances, the defendants were proceeded against ex-
parte on 07.02.2017. The trial court finally passed an ex-parte
decree on 07.02.2017 and the Appellant thereafter preferred an
Execution Petition i.e. E.P. No. 10/2017. On account of execution
proceedings, the sale deed was also executed in favour of the
Appellant.
SLP (C) No. 17575/2023 Page 2 of 18
5. The Respondent No. 1 and Respondent No. 2 preferred
two separate applications under Order IX Rule 13 of the Code of
Civil Procedure (hereinafter “ CPC ”) i.e. I.A. No. 119/2015 and
I.A. No. 462 of 2018 along with applications for condonation of
delay of 712 and 467 days respectively, and the trial court
allowed both the applications i.e. I.A. No. 462 of 2018 and I.A.
No. 119/2018 vide order dated 19.08.2019, setting aside ex-parte
decree order and condoned the delay.
6. The Appellant preferred a revision before the High Court
by filing CRP(MD) No. 1688 and 1689 of 2019 and the same was
allowed by the High Court vide order dated 09.11.2021. The
Respondents being aggrieved by the order of the High Court,
dated 09.11.2021 preferred Special Leave Petition (C) Nos.
2054-55 of 2022 and this Court dismissed the said Special Leave
Petitions by an order dated 25.02.2022 meaning thereby that the
ex-parte judgment and decree came to be affirmed by this Court.
7. The Respondents, after the matter attained finality, on
account of dismissal of Special Leave Petitions vide order dated
25.02.2022, initiated the second round of litigation by preferring
an appeal against the ex-parte judgment and decree. The appeal
was barred by limitation and, therefore, an application was also
filed for condoning the delay of 1116 days in filing appeal under
Order XLI Rule 3A read with Section 151 of the CPC before the
SLP (C) No. 17575/2023 Page 3 of 18
First Appellate Court. The First Appellate Court by an order dated
08.02.2023 dismissed the I.A. No. 1 of 2022 in unnumbered A.S.
No. ______ of 2022 which was for condonation of delay of 1116
days and being aggrieved by the order passed by the first
Appellate Court, dated 08.02.2023, a revision was preferred
before the High Court i.e. C.R.P.(MD) No. 1113 of 2023. The
High Court, after hearing the parties has set aside the order dated
08.02.2023 vide Impugned Order dated 25.04.2023 upon a
payment of costs of Rs. 1 lakh, meaning thereby a delay of 1116
days was condoned by the High Court. The operative paragraph
of the order passed by the High Court reads as under:
“19. Considering the fact that the respondent
has been put to inconvenience by the petitioners
and since the respondent has deposited the
balance sale consideration and also invested
the balance amount together with the stamp
duty, I am inclined to intervene in favour of the
petitioners by directing the petitioners to pay a
sum of Rs. 1 lakh to the respondent. This
amount shall be paid directly to the respondent
on or before 07.06.2023. Subject to such
payment, the application filed by the petitioners
in I.A. No. 1 of 2022 to condone the delay before
the Principal District and Sessions Court,
Ramanathapuram, shall stand allowed. The
learned Principal District and Sessions Judge,
Ramanathapuram, shall number the appeal and
dispose it on merits as expeditiously as
possible, preferably, within a period of nine
months in accordance with law. The petitioners
shall report compliance by filing a suitable
SLP (C) No. 17575/2023 Page 4 of 18
memo before the learned Principal District and
Sessions Judge, Ramanathapuram.”
8. The appellant/plaintiff being aggrieved by the order dated
25.04.2023 passed by the High Court allowing the civil revision
has preferred the present appeal.
SUBMISSIONS MADE BY THE APPELLANT/
PLAINTIFF
9. The learned counsel for the appellant submitted that no
clear explanation is forthcoming for the delay that was caused in
the first round of litigation while filing the application under
Section 5 of the Limitation Act, 1963, to condone the delay under
Order IX Rule 13 of the CPC. Furthermore, the High Court failed
to appreciate that the delay caused in filing the appeal under
Section 96(2) read with Order XLI Rule 1 of CPC alone can be
excluded by applying the principle in Section 14 of the
Limitation Act, 1963. The delay of 467 days and 712 days that
was caused after the Respondents were set ex-parte , was found
to be unsatisfactory as held by the High Court in earlier C.R.P
(MD) Nos.1688 & 1689 of 2019, vide order dated 09.11.2021,
which has been affirmed by this Hon’ble Court while dismissing
the Special Leave Petitions of the respondents/defendants in SLP
Nos. 2054 and 2055 of 2022. It was submitted that the
SLP (C) No. 17575/2023 Page 5 of 18
Respondents cannot reagitate the very same question which has
attained finality in the earlier proceedings.
10. Moreover, it has been argued that the High Court erred in
applying the decision of the Hon’ble Supreme Court in N.
Mohan v. R. Madhu (2020) 20 SCC 302 in the facts of the
present case. In that case, the Respondents were never served
with the suit summons, but in the present case, the
respondents/defendants were properly served with the suit
summons, they appeared and filed a Vakalatnama, and also filed
their written statement. Moreover, in N. Mohan’s case (supra),
the issue dealt with was the maintainability of the appeal filed
under Section 96(2) of CPC against the ex-parte decree. The
same is not disputed by the appellant/plaintiff herein, as an appeal
under Section 96(2) of the CPC is maintainable. The question is
whether the enormous delay of 1116 days can be condoned
without any proper explanation.
11. That apart, it was submitted that the Court has not laid
down any ratio to be followed in the above case relied upon. It
was further submitted that the Court has taken note of the bona
fide conduct of the parties (the defendants therein) and condoned
the delay, and that the said order was not based on any legal
principle. It was further submitted that the High Court ought not
to have interfered with the order of the First Appellate Court, as
SLP (C) No. 17575/2023 Page 6 of 18
the respondents/defendants were negligent in not filing the
appeal in time and the delay has not been properly explained.
12. It was further submitted that the order of the First
Appellate Court is well-reasoned and called for no interference.
Further, after dismissal of the application filed under Order IX
Rule 13 of the CPC for condonation of delay, even though the
appeal filed under Section 96(2) of the CPC against the ex-parte
decree dated 7.2.2017 was maintainable, the huge delay of 1116
days of filing the said appeal cannot be condoned without proper
explanations.
13. Further, it was submitted that the High Court failed to
appreciate the conduct of the respondents/defendants. There is no
bar for them to file the Appeal under Section 96(2) of the CPC
against the ex-parte decree while pursuing the application filed
under Order IX Rule 13 of the CPC for condonation of delay.
Therefore, in any case, the impugned judgment is erroneous,
perverse, and warrants interference; it ought to be set aside by
this Hon'ble Court.
SUBMISSIONS MADE BY THE RESPONDENTS/
DEFENDANTS
14. Learned counsel for respondents/defendants vehemently
argued that the non-representation before the Trial Court by
SLP (C) No. 17575/2023 Page 7 of 18
respondent no. 1/defendant no. 1 and respondent no. 2/defendant
no. 2 was neither wilful nor wanton.
15. It was further submitted that a plausible explanation has
been given by the Respondents for the delay in preferring the said
petition, and the High Court was convinced with the reasonable
explanation given by the Respondents, and thereafter was pleased
to pass the Impugned Order dated 25.04.2023 in favour of the
Respondents.
16. It was further submitted that the High Court correctly
relied upon the judgment of N. Mohan (supra) while passing the
impugned order dated 25.04.2023, as it squarely applies to the
instant case. The High Court, in its judicial wisdom, was of the
considered opinion that the facts and circumstances of the instant
case are similar to the aforesaid judgment.
17. Moreover, the learned counsel for Respondents argued that
it is trite law that the application filed under Order IX Rule 13 of
the CPC and the application filed under Order 41 Rule 3(A) of
the CPC stand on a different footing. Further, in a similar case,
the Hon’ble Supreme Court has laid down the dictum in Bhanu
Kumar Jain v. Archana Kumar (2005) 1 SCC 787 , and has
postulated as follows:
“38. The dichotomy, in our opinion, can be resolved
by holding that whereas the defendant would not be
SLP (C) No. 17575/2023 Page 8 of 18
permitted to raise a contention as regards the
correctness or otherwise of the order posting the suit
for ex parte hearing by the trial court and/or
existence of a sufficient case for non-appearance of
the defendant before it, it would be open to him to
argue in the first appeal filed by him under Section
96(2) of the Code on the merits of the suit to enable
him to contend that the materials brought on record
by the plaintiffs were not sufficient for passing a
decree in his favour or the suit was otherwise not
maintainable. Lack of jurisdiction of the court can
also be a possible plea in such an appeal. We,
however, agree with Mr Chaudhari that the
“Explanation” appended to Order 9 Rule 13 of the
Code shall receive a strict construction as was held
by this Court in Rani Choudhury [(1982) 2 SCC
596], P. Kiran Kumar [(2002) 5 SCC 161] and
Shyam Sundar Sarma v. Pannalal Jaiswal [(2005) 1
SCC 436 : (2004) 9 Scale 270].”
Hence, in the light of the ratio laid down in the hereinabove
judgment, it is manifestly implied that the Respondents are
entitled to prefer the first appeal before the Hon’ble District &
Session Judge, Ramanathapurarn, Tamil Nadu and there is no bar
due to the dismissal of their earlier petition filed under Order IX
Rule 13 of the CPC.
18. Further, regarding the delay of 1116 days in filing the
condonation of delay petition, the learned counsel referred to
Section 14 of the Limitation Act and argued that in the instant
case, the Respondents after exhausting their legal rights under
Order IX Rule 13 of the CPC with informed legal counselling
SLP (C) No. 17575/2023 Page 9 of 18
decided to exercise their legal right to refer the first appeal as
against the final decretal order and judgment passed by the Trial
Court. The time taken during the pendency of the Petition under
Order IX Rule 13 of the CPC and also the revision petitions
before the various judicial forums necessarily have to be
excluded. A bare reading of Section 14 of the Limitation Act
enjoins upon the adjudicating authorities to exclude the time thus
taken during the pendency of petition filed under Order IX Rule
13 of the CPC needs to be taken into consideration for condoning
the delay in filing the first appeal and, therefore, the High Court
rightly cited and discussed the said provision and was pleased to
pass the impugned order dated 25.04.2023 in favour of the
Respondents.
19. It is further submitted that the High Court vide impugned
order directed the Respondents to pay a sum of Rs. 1 lakh to the
Appellant. Accordingly, the Respondents paid a sum of Rs. 1 lakh
to the Appellant, but he refused to receive the same. Hence, the
Respondents deposited the said amount with the court on
05.06.2023 and thereby complied with the order of the High
Court. The said conduct of the Respondents proves his bona fide
credentials.
20. It was submitted that the Respondent No. 2 holds a valid
title as bona fide purchaser in respect of the Suit Schedule
SLP (C) No. 17575/2023 Page 10 of 18
property vide registered Sale Deed dated 26.11.2015 executed by
Respondent No. 1 in favour of the Respondent No.2 at the Sub-
Registrar's Office. Since then, to date, the Respondent No. 2 is in
possession and enjoyment of the disputed property.
21. Further, it was submitted that since Respondents are
having the valid title and are also in possession and enjoyment of
the Suit Schedule Property, the balance of convenience is in their
favour only.
22. Moreover, learned counsel argued that irreparable damage,
loss, and hardships would be caused to the Respondents if the
instant appeal is allowed. At the same time, no loss or hardships
could happen to the Appellant if the instant appeal is dismissed.
DISCUSSION AND ANALYSIS
23. We have carefully considered the submissions and perused
the impugned judgment and materials on record. The point at
issue for consideration is whether the delay is to be condoned or
not, and if the delay is justifiable, then whether the case should
be allowed to proceed on merits, or be dismissed on procedural
grounds.
24. The facts of the present case are not in dispute. In the first
round of litigation, Respondents could not succeed in setting
aside the ex-parte decree passed by the Trial Court in the
SLP (C) No. 17575/2023 Page 11 of 18
aforesaid suit, and hence they preferred the appeal suit along with
the application for condonation of delay of 1116 days. The said
application for condonation of delay of 1116 days was dismissed
by the First Appellate Court vide order dated 08.02.2023.
However, the High Court, while passing the impugned order
dated 25.04.2023, relied upon the judgment of this Court passed
in N. Mohan (supra) and allowed the application for
condonation of delay of 1116 days and directed the First
Appellate Court to proceed with the appeal suit on merits.
25. In the present case, from the perusal of the record, it can
be observed that in the first round of litigation, the Respondents
were duly served with the summons after institution of the
aforesaid suit. In response, they entered an appearance and filed
their written statement, thereby submitting themselves to the
jurisdiction of the Trial Court. However, despite being present in
the initial stage of proceedings, Respondents choose not to
further appear before the Trial Court continuously. Consequently,
the Trial Court was constrained to proceed ex-parte against them.
Further, it is pertinent to note that the High Court has relied upon
N. Mohan (supra), while passing the impugned order, however,
on comparison, the facts of the said case are different from the
case at hand. In the said case, the summons to the Respondents
was sent to their old address, and the same was returned
unserved, and subsequently, the ex-parte decree was passed. In
SLP (C) No. 17575/2023 Page 12 of 18
stark contrast, the present case is distinguishable since the
summons was duly served and the respondents/defendants not
only appeared but actively participated by filing their written
statement.
26. Therefore, the dictum in N. Mohan (supra) cannot be
applied to the instant matter but the High Court placed reliance
upon the aforementioned judgment leading to the
misappreciation of the facts. Consequently, the impugned order
dated 25.04.2023 passed by the High Court is perverse in nature
and is not in conformity with the legal principles. Accordingly,
the impugned order dated 25.04.2023 is hereby set aside.
27. Proceeding further on the issue of condonation of delay of
1116 days in filing the appeal suit, we concur with the findings
of the First Appellate Court passed in order dated 08.02.2023,
that the Respondents raised the very same grounds in the present
application for condonation of delay of 1116 days, that were
raised in the applications (I.A. Nos. 462 of 2018 and 119 of 2019)
filed under Order IX Rule 13 of the CPC in the earlier round of
litigation; that is, the delay was neither wilful nor wanton. It is an
admitted fact that the said applications (I.A. Nos. 462 of 2018
and 119 of 2019) were allowed by the Trial Court, which by way
of civil revision petitions (C.R.P. (MD) Nos. 1688 & 1689 of
2019) were challenged before the High Court and the High Court
SLP (C) No. 17575/2023 Page 13 of 18
reversed the order of the Trial Court. It is not in dispute that
subsequently the order of the High Court was also affirmed by
this Court vide order passed in S.L.P. (C) Nos. 2054 & 2055 of
2022, thereby dismissing the condonation of delay petitions filed
by the Respondents.
28. Since the Respondents assigned the very same reasons in
I.A. No. 1 of 2022 in Unnumbered A.S. No… of 2022 as raised
in I.A. Nos. 462 of 2018 and 119 of 2019 that had already been
dismissed by this Court vide S.L.P. (C) Nos. 2054 & 2055 of
2022, the application for condonation of delay of 1116 days
cannot be sustained. This Court in S.L.P. (C) Nos. 2054 & 2055
of 2022, after going through the evidence placed on record,
rightly held that the delay has not been properly explained. The
relevant portion of the order is reproduced hereunder:
“5. We are in complete agreement with the view
taken by the High Court. Once it was found even by
the learned trial Court that delay has not been
properly explained, and even there are no merits in
the application for condonation of delay, thereafter,
the matter should rest there and the condonation of
delay application was required to be dismissed. The
approach adopted by the learned trial Court that,
even after finding that, in absence of any material
evidence it cannot be said that the delay has been
explained and that there are no merits in the
application, still to condone the delay would be
giving a premium to a person who fails to explain
the delay and who is guilty of delay and laches. At
SLP (C) No. 17575/2023 Page 14 of 18
this stage, the decision of this Court in the case of
Popat Bahiru Goverdhane v. Land Acquisition
Officer, reported in (2013) 10 SCC 765 is required
to be referred to. In the said decision, it is observed
and held that the law of limitation may harshly
affect a particular party but it has to be applied with
all its rigour when the statute so prescribes. The
Court has no power to extend the period of
limitation on equitable grounds. The statutory
provision may cause hardship or inconvenience to a
particular party but the Court has no choice but to
enforce it giving full effect to the same.
5.1 In the case of Maniben Devraj Shah v.
Municipal Corporation of Brihan Mumbai, (2012) 5
SCC 157, in paragraph 14, it is observed and held
as under:
“The law of limitation is founded on public policy.
The Limitation Act, 1963 has not been enacted with
the object of destroying the rights of the parties but
to ensure that they approach the court for
vindication of their rights without unreasonable
delay. The idea underlying the concept of limitation
is that every remedy should remain alive only till
the expiry of the period fixed by the legislature. At
the same time, the courts are empowered to condone
the delay provided that sufficient cause is shown by
the applicant for not availing the remedy within the
prescribed period of limitation.”
6. In view of the above and for the reasons stated
above, we are in complete agreement with the view
taken by the High Court. The Special Leave
Petitions stand dismissed.
SLP (C) No. 17575/2023 Page 15 of 18
Pending application, if any, also stands disposed
of.”
29. Therefore, this Court, having previously adjudicated upon
the application for condonation of delay filed in I.A. Nos. 462 of
2018 and 119 of 2019, and having rendered a reasoned order
passed in S.L.P. (C) Nos. 2054 & 2055 of 2022, after a thorough
perusal of the evidence and materials on record, held that the
grounds put forth were insufficient to constitute ‘sufficient cause’
under Section 5 of the Limitation Act, 1963. An order of this
Court, passed upon judicial consideration, attains finality unless
set aside through appropriate appellate or review mechanisms.
30. In the present appeal, the Respondents seek to raise the
very same reason to condone the delay as were previously
canvassed, without placing any fresh or additional material to
distinguish the current reason from the one already discussed and
dismissed. This Court is of the considered view that such a
repetition of grounds already scrutinized and held untenable
amounts to an abuse of the process of law. Although the
applications for condonation of delay are filed under different
provisions of the law but the said provisions provide for
concurrent remedies through different mechanisms and if the
application filed under one provision has already been dismissed
by a court of competent jurisdiction, by applying its judicial mind
and held that the reasons for delay were not sufficient, a
SLP (C) No. 17575/2023 Page 16 of 18
subsequent application filed under different provision, reiterating
the same contentions or grounds of delay, cannot be entertained.
31. It is a well-settled law that while considering the plea for
condonation of delay, the first and foremost duty of the court is
to first ascertain the bona fides of the explanation offered by the
party seeking condonation rather than starting with the merits of
the main matter. Only when sufficient cause or reasons given for
the delay by the litigant and the opposition of the other side is
equally balanced or stand on equal footing, the court may
consider the merits of the main matter for the purpose of
condoning the delay.
32. Further, this Court has repeatedly emphasised in several
cases that delay should not be condoned merely as an act of
generosity. The pursuit of substantial justice must not come at the
cost of causing prejudice to the opposing party. In the present
case, the respondents/defendants have failed to demonstrate
reasonable grounds of delay in pursuing the matter, and this
crucial requirement for condoning the delay remains unmet.
33. Therefore, in the case at hand, once it has been established
that the reasons provided for condoning the delay in the
application filed are not sufficient, we are not inclined to go into
the merits of the contentions raised by the learned counsel of
Respondents regarding Section 14 of the Limitation Act, 1963.
SLP (C) No. 17575/2023 Page 17 of 18
34. In view of the aforesaid facts and circumstances, this Court
is of the considered opinion that the Impugned Order dated
25.04.2023 passed by the High Court is liable to be set aside and
is, accordingly, set aside.
35. The appeal stands allowed.
36. Pending application(s), if any, shall stand disposed of.
……………………………………J.
[B.V.NAGARATHNA]
……………………………………J.
[SATISH CHANDRA SHARMA]
NEW DELHI
May 13, 2025
SLP (C) No. 17575/2023 Page 18 of 18