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The Supreme Court on Tuesday overturned the Madras High Court order, which condoned the 1,116-day delay in filing an appeal against an ex-parte decree that had become final after being dismissed by the Apex Court in a different proceeding.
The Bench of Justice BV Nagarathna and Justice SC Sharma observed that while considering a plea for condonation of delay, the first and foremost duty of the court was to 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 were equally balanced or stood on equal footing, the court may consider the merits of the main matter for the purpose of condoning the delay.
The top court of the country said 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 failed to demonstrate reasonable grounds of delay in pursuing the matter, and this crucial requirement for condoning the delay remained unmet.
It said since the respondents had already exhausted their remedy under Order IX Rule 13 CPC (application to set aside the ex-parte decree) and the same grounds (non-wilful absence) were rejected earlier, therefore, it would be impermissible for them to reagitate the same issues in a separate proceeding upon filing an appeal under Section 96(2) CPC before the High Court.
The Court held that delay could only be condoned under Order IX Rule 13 CPC if it was demonstrated that the summons was not served on the litigant or that they were prevented by sufficient cause from appearing in court. However, upon finding that the summons had been served on the Respondent and no sufficient cause was provided for their failure to appear, the Bench said the High Court’s condonation of the delay was unjustified.
Authored by Justice Sharma, the verdict pointed out that in the current petition, the respondents sought 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.
Such a repetition of grounds already scrutinised and held untenable amounted to an abuse of the process of law. Although the applications for condonation of delay were filed under different provisions of the law, they provided concurrent remedies through different mechanisms, it noted.
The Apex Court observed that if an application filed under one provision has already been dismissed by a court of competent jurisdiction, which held that the reasons for delay were not sufficient, a subsequent application filed under different provision, reiterating the same contentions or grounds of delay, could not be entertained.
This article first appeared on India Legal
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