JOHN SIMON Vs. T H MOHAMMED KUNJU

JUDGEMENT

(1.) The appellant was set exparte in the suit filed by the respondent for realization of money and an exparte decree was passed on 10.6.2004. On 8.7.2004, the appellant filed an application to set aside the exparte decree. But the application was filed under Order IX Rule 9 of the Code of Civil Procedure instead of Order IX Rule 13. The court below dismissed the application mainly on two grounds: (1) Though the application is filed within the period of limitation, the appellant has not explained the reason why he did not file the application before 8.7.2004. (2) The application is filed quoting a wrong provision of law.

(2.) Article 123 of the Limitation Act provides a period of limitation of thirty days to make an application to set aside a decree passed exparte. The time begins to run from the date of decree or where summons or notice was not duly served, when the applicant had knowledge of the decree. In the case on hand, time begins to run from 9.6.2004, the date of decree. The application was filed within the period of limitation provided under Article 123 of the Limitation Act. Rule 13 of Order IX of the Code of Civil Procedure provides that in any case in which a decree is passed exparte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside. The applicant has to satisfy the Court that he was prevented by sufficient cause from appearing when the suit was called on for hearing. If an application is filed within time, there is no question of any condonation of delay under Section 5 of the limitation Act. The applicant need explain the delay only if the application is not filed within the prescribed period of limitation. He is not bound under law to explain the delaying making the application, if the application is filed within time. Of course, the Court can also consider as to why the application was not filed promptly, depending upon the facts and circumstance of each case, to arrive at a conclusion as to whether the case put forward by the applicant that he was prevented by sufficient cause from appearing before court is true or not. Only for that purpose, the Court could take into account the fact that the application was filed not immediately after the exparte decree was passed but on the last date or immediately before the expiry of the period of limitation. An application under Order IX Rule 13 cannot be dismissed on the ground that the applicant had not explained the delay from the date on which he recovered from his illness to the date of filing of the application, if the application under Order IX Rule 13 was filed within the period of limitation prescribed under Article 123 of the limitation Act. The view taken by the court below that the appellant was bound to explain the delay is, therefore, erroneous, illegal and unsustainable. In G. P. Srivastava v. R.K.Raziada and others ((2000) 3 SCC 54), the Supreme Court has held that the words "was prevented by sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties. It was held:

(3.) It is well settled that quoting a wrong provision of law is not a ground for rejecting the prayer in an application. (See Ahser v. Raru (1979 KLT 260); Thankamma v. Vaikom Town Juma Masjid Mahal Sangham (1987(2) KLT 780); Shaji Varghese v. Cherian (1993(1) KLT 133); New Model Bank ltd. (in liquidation) v. P.A.Thomas (1959 KLT 1237) and Kunhikayyumma and another. V. Union of India and others (AIR 1984 Kerala 184)). The appellant has filed the application under rule 9 of Order IX of the Code of Civil Procedure. The appellant was the defendant in the suit. Evidently, Rule 9 of Order IX does not apply, Only Rule 13 of Order IX applies. Simply because a wrong provision of law was quoted, the court below was not justified in dismissing the application on that ground.