MAHARASHTRA RAJYA SAHAKARI ADIWASI VIKAS MAHAMANDAL MARYADIT THROUGH ITS REGIONAL MANAGER Vs. KANTI SHANTILAL

JUDGEMENT

(1.) HEARD .

(2.) THE respondent, who is the original plaintiff, filed Special Civil Suit No. 105 of 1990 in the Court of Civil Judge, Senior Division, Dhule. The said suit was subsequently transferred to the Civil Judge, Senior Division. Nandurbar in the year 1990. The suit summons was served on the Regional Manager of the applicant on 21.3.1991. He did not appear in the Court. Therefore, the matter proceededex parte against the applicant -original defendant and ultimately, decree came to be passed on 23.2.1995. The applicant defendant filed application under Order 9 Rule 13 of the Civil Procedure Code on 16.12.1995 for setting aside theex parte decree. The said application was rejected by the Trial Court on 13.11.1998. The rejection order was carried in revision. The High Court rejected the Civil Revision Application on 4.2.1992. After rejection of the Civil Revision Application, the original defendant has filed First Appeal along with the application for condonation of delay on 16.2.1999. There is delay of 1364 days in filing the First Appeal.

(3.) SHRI Deshmukh, learned Counsel vehemently submits that the time consumed in the proceeding initiated by the applicant original defendant under Order 9, Rule 13 of the Civil Procedure Code should be considered as sufficient cause for the purpose of condonation of delay. On the other hand, Shri Rane, learned Counsel submits that the time consumed in the proceeding initiated under Order 9, Rule 13 of the Civil Procedure Code cannot be treated as a sufficient cause within the meaning of Section 5 of the Limitation Act, for the purpose of setting aside the ex parte decree. According to learned Counsel Shri Rane, the present applicant -original defendant had two remedies. He exhausted one remedy i.e. the application for setting aside ex parte decree as contemplated by Order 9, Rule 13 of the Civil Procedure Code. According to learned Counsel Shri Rane, the applicant original defendant could have also filed first appeal at the same time challenging the ex parte decree. The applicant original defendant did not file first appeal and, therefore, the time consumed in the proceeding initiated under Order 9, Rule 13 of the Civil Procedure Code does not constitute a sufficient cause within the meaning of Section 5 of the Limitation Act. In order to support his submissions, he relied upon the case of JotibaLimbaji Kanashenavar v. Ramappa Jotiba Kanashenavar (1940) Bom. L.R. 957