The Bombay High Court has clarified that the time spent in diligently pursuing a remedy under Order IX Rule 13 of the Code of Civil Procedure to set aside an ex parte decree constitutes sufficient cause for condoning delay in filing a subsequent first appeal, even where earlier applications were dismissed. This ruling reinforces the principle that procedural rigour must not override substantive justice when litigants act in good faith.
Background & Facts
The Dispute
The dispute originated from a 1970 development agreement between the original plaintiffs (developers) and the original defendants, who later formed the Ram Saket Co-operative Housing Society Ltd. The plaintiffs filed Suit No. 182 of 1988 seeking declaration that the agreement was revoked and for possession of the land on which the housing society’s building was constructed. The society, as Defendant No. 3, claimed ownership and possession of the structure built under the agreement.
Key Facts
- The suit was filed in the High Court in 1988.
- Written statement by Defendant No. 3 was filed in August 2006.
- Cross-examination of plaintiff’s witnesses concluded on 18 December 2008.
- On 23 August 2012, the suit was transferred to the City Civil Court due to enhancement of pecuniary jurisdiction.
- Defendant No. 3 claims it received no notice of transfer and lost track of the proceedings.
- On 19 July 2013, the City Civil Court issued a notice for appearance; Defendant No. 3 did not appear.
- Evidence of Defendant No. 3 was closed on 21 January 2014.
- Impugned judgment and decree were passed on 10 April 2014.
- On 26 September 2014, society members were threatened with eviction, prompting inquiry.
- On 17 October 2014, Defendant No. 3 filed Notice of Motion No. 3969 of 2015 under Order IX Rule 13 CPC.
- The application was dismissed by the City Civil Court on 7 April 2015.
- Appeal from Order No. 618 of 2015 was filed on 28 April 2015 and dismissed by the Bombay High Court on 6 November 2025.
- Review petition filed on 17 November 2025 and dismissed on 27 November 2025.
- Special Leave Petition (SLP) filed on 12 December 2025 and dismissed by the Supreme Court on 5 January 2026.
- First Appeal (FA No. 582 of 2026) and application for condonation of delay filed on 8 January 2026.
- Total delay in filing first appeal: 4258 days (from 10 April 2014 to 8 January 2026).
- The society has 13 members residing in the building for over 40 years.
Procedural History
- 1988: Suit No. 182 filed in High Court.
- August 2006: Written statement filed by Defendant No. 3.
- 18 December 2008: Cross-examination of plaintiff’s witness concluded.
- 23 August 2012: Suit transferred to City Civil Court.
- 19 July 2013: Notice issued by City Civil Court for appearance.
- 21 January 2014: Evidence of Defendant No. 3 closed.
- 10 April 2014: Ex parte decree passed.
- 17 October 2014: Application under Order IX Rule 13 CPC filed (delay of 171 days).
- 7 April 2015: City Civil Court dismissed Order IX Rule 13 application.
- 28 April 2015: Appeal from Order filed before Bombay High Court.
- 6 November 2025: High Court dismissed Appeal from Order.
- 17 November 2025: Review petition filed.
- 27 November 2025: Review petition dismissed.
- 12 December 2025: SLP filed before Supreme Court.
- 5 January 2026: SLP dismissed.
- 8 January 2026: First Appeal and condonation application filed.
The Parties' Positions
The appellant (Ram Saket Co-operative Housing Society Ltd.) contends that it acted diligently after discovering the ex parte decree, and the delay in filing the first appeal was entirely due to the time consumed in pursuing remedies under Order IX Rule 13 CPC. The respondent (original plaintiff) argues that the society engaged in dilatory tactics, took inconsistent stands in pleadings, and that the explanation for delay was previously rejected at all levels.
Relief Sought
The appellant seeks condonation of 4258 days’ delay in filing the first appeal against the ex parte decree dated 10 April 2014, and permission to proceed with the appeal on merits.
The Legal Issue
The central question was whether the time spent in prosecuting an application under Order IX Rule 13 of the CPC, even if ultimately dismissed, constitutes sufficient cause under Section 5 of the Limitation Act, 1963 to condone delay in filing a first appeal against the same ex parte decree.
Arguments Presented
For the Appellant/Petitioner
Counsel for the appellant relied on Bhivchandra Shankar More v. Balu Gangaram More (2019) 6 SCC 387 to argue that the period spent in pursuing a statutory remedy under Order IX Rule 13 CPC - including appeals and SLPs - must be excluded from the delay in filing the first appeal. He submitted that the society acted in good faith: upon learning of the decree, it promptly engaged new counsel, searched records, and filed the Order IX Rule 13 application within 171 days. The subsequent litigation was pursued without interruption, demonstrating due diligence. The absence of any reasoned finding on the explanation for the 171-day delay in filing the Order IX Rule 13 application meant the issue had not been finally adjudicated.
For the Respondent/State
Counsel for the respondent contended that the explanation for delay - change of advocates and search of records - was previously rejected by the City Civil Court, the High Court, and the Supreme Court. He relied on Thirunagalingam v. Lingeswaran (2025 SCC OnLine SC 1093) to argue that once a court has rejected a specific explanation for delay, it cannot be re-agitated in subsequent applications. He further highlighted the society’s inconsistent pleadings regarding the post box and its failure to disclose a prior 1999 suit for specific performance, suggesting mala fide conduct.
The Court's Analysis
The Court undertook a detailed examination of the procedural history and the jurisprudence on condonation of delay. It distinguished Thirunagalingam on critical grounds. In that case, the Supreme Court had already rendered a reasoned finding that the explanation for delay was insufficient, and the same grounds were re-asserted in the subsequent appeal. Here, the Court found no such adjudication.
"The Trial Court has not adjudicated the merits of the application under Order IX Rule 13 of CPC holding it to be meritless and while dismissing the application renders a one line finding that there is no bonafide reason for delay without even venturing into the reason set forth for the delay."
The Court emphasized that the City Civil Court’s order dismissed the Order IX Rule 13 application solely on the ground of non-appearance on the hearing date, without addressing the explanation for the 171-day delay in filing the application itself. The High Court’s dismissal of the appeal from order and the Supreme Court’s summary dismissal of the SLP also did not engage with the sufficiency of the explanation for delay.
The Court held that the doctrine of res judicata or issue estoppel does not apply where no reasoned finding has been rendered on the specific ground of delay. The explanation - change of advocates, search of records, and procedural confusion following transfer - was deemed plausible and not indicative of gross negligence. The Court adopted a liberal approach, noting that the society had pursued remedies continuously and without interruption for over a decade.
The Court further observed that the society’s conduct in the 1999 suit and its inconsistent pleadings were irrelevant to the issue of delay in filing the first appeal, as those matters had already been adjudicated and did not affect the bona fides of the current application.
The Verdict
The interim application for condonation of delay was allowed. The Court held that the 4258-day delay in filing the first appeal is condoned, as the period spent in prosecuting the Order IX Rule 13 proceedings constitutes sufficient cause under Section 5 of the Limitation Act, 1963. The first appeal (FA No. 582 of 2026) is permitted to proceed on merits. No monetary relief or specific direction was granted beyond permitting the appeal to be heard.
What This Means For Similar Cases
Prosecuting Order IX Rule 13 Remedies Excludes Delay in First Appeal
- Practitioners may now confidently argue that time spent in pursuing Order IX Rule 13 applications - including appeals and SLPs - must be excluded from the limitation period for filing a first appeal against an ex parte decree.
- This applies even if the Order IX Rule 13 application is dismissed, provided the litigant acted diligently and no reasoned finding on the delay explanation was rendered.
Absence of Reasoned Finding Precludes Res Judicata on Delay
- If lower courts dismiss applications under Order IX Rule 13 with a generic finding like "no sufficient cause shown" without analyzing the specific explanation, that dismissal does not bar re-assertion of the same explanation in a condonation application for a subsequent appeal.
- Practitioners must ensure that pleadings clearly distinguish between the cause of non-appearance and the cause of delay in filing the application.
Liberal Interpretation Favors Substantive Justice
- Courts are expected to adopt a liberal approach to condonation when the delay is attributable to procedural confusion or administrative oversight, not deliberate evasion.
- The burden shifts to the opposing party to prove mala fide or gross negligence; mere inconsistency in earlier pleadings does not automatically negate bonafides in a condonation application.
