[1].IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
JUDGMENTM/S.SREI International Finance Limited versus Ashok Kumar S.B.CIVIL MISC.
APPEAL No.1606/2013 Date of Judgment: November 28, 2014.
PRESENT HON'BLE Mr.JUSTICE P.K.LOHRA, J.
Mr.S.D.Vyas with Mr.P.S.Chundawat, for the appellant.
Mr.Vikas Balia, for the respondent.
Reportable BY THE COURT: Appellant-defendant has laid this appeal under Order 43 Rule 1(d) read with Section 104 of the Code of Civil Procedure (for short, ‘CPC’) assailing the order dated 26th of July 2013 passed by Addl.
District Judge, Rajsamand, whereby its application under Order 9 Rule 13 read with Section 151 CPC for setting aside ex-parte decree dated 19th January 2006 was rejected.
Succinctly stated, the facts of the case are that respondent-plaintiff instituted a civil suit against [2].appellant for recovery of a sum of Rs.1,60,155 before learned trial Court, wherein besides money decree he also prayed for relief of perpetual injunction.
The suit was initially contested by appellant and its cause was pleaded by a lawyer but subsequently due to absence of appellant as well as its lawyer, at the threshold ex-parte proceedings were taken against it on 17.11.2005 and eventually the suit was decreed ex-parte on 17th of February 2006.
For setting aside ex-parte decree, appellant company made endeavor by laying application under Order 9 Rule 13 read with Section 151 CPC on 10th of February 2009.
The said application was preferred by appellant after delay of three years from the date of passing of ex-parte judgment and decree, therefore, an endeavor was made at its behest for seeking condonation of delay by way of laying application under Section 5 of the Limitation Act.
In its application, the appellant company has inter-alia averred that on its behalf a lawyer was engaged, who was entrusted the brief, but of his own volition he has not appeared before the learned trial Court on 17.11.2005 and therefore the learned Court below proceeded ex-parte against the appellant and its right to file written statement was forfeited.
Finally, the learned trial Court passed the ex-parte decree.
[3].Appellant set out a specific case in its application that the lawyer representing their cause before the learned trial Court assured that as and when any assistance would be required by company, requisite information would be furnished to it but no such information was divulged by the counsel.
With these averments, the appellant has pleaded that there were good and sufficient reasons for absence of the appellant on 17.11.2005 as well as on 19.01.2006.
Attributing callousness and total apathy on part of the lawyer representing its cause, appellant has averred in the application that it came to know about the ex-parte judgment and decree on 6th of February 2009 and immediately requisite application for obtaining certified copy was filed and after obtaining certified copy on 7th February 2009, the application has been filed for setting aside ex-parte decree.
For seeking condonation of delay in belated presentation of application under Order 9 Rule 13 CPC, appellant has pleaded the same facts.
In support of both the applications, on behalf of appellant company, affidavit of its Manager (Law) was submitted.
The respondent-plaintiff contested the application for setting aside ex-parte judgment and [4].decree and submitted its reply refuting all the averments.
On behalf of respondent, a separate reply was also submitted to counter the averments contained in application under Section 5 of the Limitation Act.
In reply, on behalf of respondent, it is pleaded with emphasis that appellant company had full knowledge about the proceedings in the suit and it was aware about passing of the ex-parte decree.
The respondent has also submitted in the reply that being party to the litigation, it was obligation of the appellant to ascertain the status of the suit, which was filed against it, and by not doing so it has shown total callousness and negligence, which is hardly a ground for setting aside ex-parte decree.
Respondent’s specific plea was that a litigant, who has shown apathy for its cause, cannot be allowed any latitude by the Court for its lapses.
Elaborating the sequence of events to prove that appellant had knowledge about ex-parte proceedings against it and passing of ex-parte decree in the suit, respondent has averred in the reply that in other litigation, i.e.Case No.9/2001 between same parties, pending before other Court, when information about ex-parte judgment and decree was conveyed to him, he has admitted that requisite information has been conveyed to him by his [5].client.
With these averments, the respondent has pleaded that cause shown by the appellant for its absence on 17.11.2005 and 19.01.2006 is false and concocted.
The learned District Judge, after hearing arguments of the rival parties, dismissed the application vide its order dated 30th August 2012 by simply saying that it has been filed belatedly therefore not maintainable.
The appellant feeling aggrieved by order dated 30th August 2012 filed S.B.Civil Misc.
Appeal No.2431 of 2012 before this Court.
The said appeal was finally decided by this Court by its order dated 5th April 2013 and the matter was remanded back with certain directions.
Order dated 5th April 2013 is reproduced as under: “This appeal has been filed against the order dated 30.08.2012 passed by District Judge, Rajsamand in Civil Misc.
Case No.63/2011, whereby he rejected the application filed by the appellant under Order 9 Rule 13 CPC for setting aside the ex-parte judgment dated 19.1.2006 and ex- parte judgment dated 19.1.2006 and ex- parte decree dated 17.2.2006.
Learned counsel for the appellant submits that the learned court below has not considered the issue regarding maintainability in right perspective.
He wants that the matter should be remanded [6].to the concerned court below with the direction to decide the application afresh.
Learned counsel appearing on behalf of the respondent has not opposed the same, but at the same, he has requested this Court that the Court below be directed to decide the aforesaid application within a period of three months, if possible.
In view of above, this appeal is disposed of with the following directions: i) The order dated 30.8.2012 passed by the court below is quashed and set-aside; ii) The matter is remanded to the court below with the direction to decide the application afresh as early as possible and if possible, within a period of three months from the date of receipt of certified copy of this judgment, in accordance with law and in the light of judgments to be cited by learned counsel for the parties, if any.
Stay application also stands disposed of accordingly.”
.
After remand order, the learned trial Court considered both the applications of appellant on merits and, in the light of evidence tendered by both the parties, declined to condone the delay and rejected application under Section 5 of the Limitation Act entailing rejection of application for setting aside ex-parte judgment and decree.
[7].Learned counsel for the appellant submits that the learned Court below, while passing the impugned order, has placed reliance on the testimony of counsel representing its cause in the matter before the learned Court below and, therefore, the order impugned is vitiated in law.
Elaborating his submission, learned counsel has urged that any communication between a lawyer and his client is a privileged communication under Section 126 of the Indian Evidence Act 1872 (for short, ‘Act of 1872’) and therefore any deposition of a lawyer against his own client is not worth any credence and solely on that count the impugned order cannot be sustained.
Learned counsel for the appellant further submits that while passing the impugned order, the learned Court below has placed reliance on the record of other litigation, which was pending between the rival parties, by summoning it under Order 13 Rule 10 CPC without there being any affidavit in support of the application, is sufficient to annul the impugned order inasmuch as order summoning the record of other litigation itself was dehors the law.
Learned counsel has also submitted that while passing the order for summoning record of other Court, not furnishing copy of [8].the application to the appellant, pre-supposes that the learned Court below while exercising power under Order 13 Rule 10 CPC has not adhered to the prescribed mandatory procedure rendering the order summoning the record of other Court vulnerable and eventually the impugned order which has been passed on perusal of the said order.
Buttressing his submission with full emphasis, learned counsel submits that as a matter of fact requisite informations were not divulged by the counsel representing the cause of the appellant before the learned Court below and that is why the ex-parte judgment and ex-parte decree was passed, which being a vital issue, ought to have been examined by the learned Court below while considering the application for setting aside ex-parte decree as well as for condonation of delay.
Lastly, the learned counsel for the appellant submits that criteria for deciding application under Order 9 Rule 7 and Order 9 Rule 13 CPC are different.
In support of his contentions, learned counsel for the appellant has placed reliance on following judgments: AIR1964SC993– Arjun Singh versus Mohindra Kumar AIR2001SC2497– M.K.Prasad Vs.P.Arumugam AIR1954(Raj.) 241 – Moti Bai versus State [9]. AIR1941(Oudh) 341 – Gokal Prasad versus Thakurain Mahadei Kuar AIR1981SC917–Supdt.
& Remembrancer, Legal AffaiRs.W.B.Vs.S.Bhowmick AIR1982(Delhi) 486 - : R.
Ramalingam and another versus P.R.Thakur and others On the other hand, learned counsel for the respondent has stoutly defended the impugned order and submits that a party to litigation showing total callousness and apathy towards the litigation cannot be allowed to take premium of its serious lapses.
Learned counsel for the respondent has argued that the suit was filed in February 2000 and ex-parte decree was passed on 19th January 2006 and for setting aside the same the appellant has submitted application under Order 9 Rule 13 CPC after a lapse of three years without explaining the inordinate delay and therefore the learned Court below has rightly declined the prayer of the appellant for condonation of delay, which requires no interference.
Learned counsel submits that the learned Court below, on evaluation of the grounds, set out in the application for setting aside ex-parte decree and condonation of delay, has exercised its discretion judiciously, which is not liable to be interfered with in limited scope of judicial review in this appeal.
Countering the argument of the learned [10].counsel for the appellant that deposition by counsel earlier representing the cause of the appellant before the learned trial Court is vitiated because of the alleged legal embargo under Section 126 of the Act of 1872, learned counsel for the respondent submits that Section 126 of the Act of 1872 refers to professional communication between client and lawyer and it is not intended by the legislature that every communication which is having no nexus with the cause of his client is also privileged.
While referring to the testimony of the lawyer, who has represented appellant’s cause earlier before the learned Court below, learned counsel has urged that his deposition is not directly connected with his knowledge about the merits of the case, or a disclosure about any advise which he tendered to his client in the couRs.and for the purpose of his professional employment.
Learned counsel has lastly submitted that in fact the deposition of the lawyer, who has earlier represented cause of the appellant before the learned Court below, is to dispel the allegation contained in the application for setting aside ex-parte judgment and decree and therefore the same cannot fall within the ambit of privileged communication.
Joining issue with the appellant on summoning of the record of other Court, learned counsel for the respondent [11].has urged that the language, with which Rule 10 of Order 13 is couched, makes it crystal clear that Court may of its own motion summon record of other Court and it is not necessary for the party who desired summoning of such record to lay an application.
The submission of the learned counsel is that summoning of record was within the sole discretion of learned Court below and it has exercised its discretion for verifying certain facts and for its own satisfaction and therefore the same cannot be categorized infirm in the given circumstances.
Referring to sub-sec.(6) of Section 57 of the Act of 1872, learned counsel has submitted that Court can take notice of certain judicial facts and therefore discretion exercised by the learned Court below in summoning the record of other Court cannot be faulted for making a ground to assail the impugned order.
Lastly, learned counsel submits that copy of the ex-parte judgment was submitted by the respondent in other proceedings in the year 2006 itself and therefore the ignorance pleaded by the appellant that it had no knowledge about the judgment is per-se a false assertion and this sort of conduct of the appellant disentitles it to claim any relief in this appeal.
In support of his arguments, learned counsel for the respondent has placed reliance following [12].judgments: AIR1998AP335- P.G.Anantasayanam & ORS.versus Miriyala Sathiraju & ORS. WLC1992(2) (Raj.) 273 – Gouri Shankar & ORS.versus Satya Narain.
WLC1995(1) (Raj.) 150 – Mohd.
Yunus versus Rajendra Kumawat & Anr.
2008 (2) RRT1316– Chhagan Lal @ Chhagan Mal & Anr.
versus Suresh Chauhan & ORS. AIR2008MP208– Mohan Pachari versus Jagdish Chandra Dubey.
WLC2002(Raj.) UC25– Habib Ahmed & Anr.
versus Gulab Devi & ORS. 2005 (3) Civil LJ307(HC) – Onkar Mal & ORS.versus Mohar Singh.
2001(3) Civil LJ563(P&H) – Delhi State Industrial Development versus Ashish Anand 2013(1) DNJ (Raj.) 141 – Gotu versus Board of Revenue & ORS. AIR2009(Raj.) 57 – Madan Lal (since deceased) & ORS.versus Pabhu Dayal & ORS. AIR2009(Raj.) 60 – Nathmal versus Urban Improvement Trust, Bikaner & ORS. WLC2006(Raj.) UC666– M/S.Tawa Nine & Anr.
versus Bank of Rajasthan LTD.& Anr.
2012 (2) DNJ (Raj.) 1151 – Lotus Education Society, Soor Sagar, Jodhpur versus Sher Singh & Anr.
2006 (1) DNJ (Raj.) 43 – Smt.
Geeta Devi & ORS.versus Nirmala Kumari 2006(1) Civil LJ513(SC) – Damodaran Pillai & [13].ORS.versus South Indian Bank LTD.I have heard learned counsel for the parties and perused the impugned order.
Adjudication in the instant appeal, in fact, is confined to a very narrow issue but the elaborate submissions made on behalf of learned counsel for the parties persuaded this Court to decide a vital issue of “privileged communication”.
within the meaning of Section 126 of the Act of 1872.
Section 126 refers to professional communications, which reads as under: 126.
Professional communica- tions.-No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the couRs.and for the purpose of his employ- ment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any docu- ment with which he has become acquainted in the couRs.and for the purpose of his pro- fessional employment, or to disclose any ad- vice given by him to his client in the couRs.and for purpose of such employment: Provided that nothing in this section shall protect from disclosure - (1) Any such communication made in furtherance of any illegal purpose; [14].(2) Any fact observed by any barrister, pleader, attorney or vakil, in the couRs.of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the atten- tion of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf on his client.
Explanation.- The obligation stated in this section continues after the employment has ceased.
A bare reading of the above quoted Section 126 of the Act of 1872 makes it abundantly clear that a lawyer pleading the cause of client cannot be permitted to disclose any communication made to him in the couRs.and for the purpose of his employment as such without express consent by or on behalf of his client.
Section further puts an embargo on disclosure of contents or condition of document with which he has become acquainted in the couRs.and for the purpose of his professional employment or to divulge/disclose any advice tendered by him to his client in the couRs.and for the purpose of such employment.
In that background, now it has become imperative for this Court to examine as to whether disclosure by the counsel for the appellant before the learned Court below that he has furnished [15].information about the suit proceedings to his client from time to time do fall within the ambit of privileged communication under Section 126 of the Act of 1872.
If the language employed under Section 126 of the Act of 1872 is examined thoroughly then it would clearly and unequivocally reveal that deposition of the counsel for the appellant before the learned Court below is per-se not a privileged communication.
In fact, the counsel has narrated a statement of fact which was solely within his knowledge that he has sent communication to his client about the orders passed and proceedings going on in the suit.
Such statements made by the counsel on oath are having no causal connection with the communication made to him by his client, nor it relates to any document contents or condition of which he has become acquainted due to his professional employment.
Even remotely, this sort of deposition is having no nexus with the advice which he has tendered to his client during his professional engagement.
Moreover, if the contents of the applications submitted by the appellant under Order 9 Rule 13 CPC and Section 5 of the Limitation Act are examined, then it will ipso facto reveal that the appellant has castigated the counsel for not informing about the proceedings in the suit and practically it has attributed a [16].professional negligence on the part of the counsel in discharging his obligation as a lawyer.
In common parlance, such serious lapses on the part of a lawyer do fall within the ambit of professional misconduct and can expose him to appropriate disciplinary action.
On objective analysis, the Court feels that the endevour of the lawyer in deposing before the learned Court below about the material facts, which were within his knowledge, was to apprise the learned Court below about the fact situation and simultaneously to dispel the insinuations hurled against him at the behest of appellant about his professional apathy.
Thus, from any stretc.of imagination, it is not possible to embrace the disclosure of such facts by the counsel for the appellant within the mischief of Section 126 of the Act of 1872 to be cowed down as a privileged communication.
Learned counsel for the appellant has placed reliance on a decision of this Court in Moti Bai versus State (supra) wherein while interpreting Section 126 of the Act of 1872, Court held as under: 6.
Reference may also be invited to Section 126, Evidence Act, which makes all communications between professional advisers like a barrister, attorney, pleader or vakil, and their clients confidential, and it is only when the clients express consent, that such a person may disclose any communication made to him in the couRs.[17].and for the purpose of his employment.
The proviso to this section rightly provides, however, that the protection of the section will not extend to any communications made in furtherance of an illegal purpose, or to any fact showing that a crime or fraud has been committed since the commencement of the employment.
It is remarkable that the obligation laid down in this section continues even after the employment is ceased.
As I understand the whole position, the right of an accused to consult his legal adviser and to be defended by him has been put on the highest footing ever since our Constitution came into force with effect from 26-1-1950, and it is really not necessary to derive it now from other enactments.
In R.
Ramalingam (supra).Delhi High Court while examining true purport of Section 126 of the Act of 1872 has rightly held the communication, between counsel for insurer of vehicle and insurance company, in the form of legal opinion to enter into compromise in the matter or not, as a privileged communication.
In the light of legal precedents, on which the learned counsel for the appellant has placed reliance, there remains no shadow of doubt that the deposition by counsel for the appellant before the learned Court below do not fall within the ambit of privileged communication under Section 126 of the Act of 1872.
My this view is fortified from a decision of Andhra Pradesh High Court in [18].P.G.Anantasayanam & ORS.(supra) on which the learned counsel for the respondent has placed reliance.
In this verdict, Andhra Pradesh High Court, while examining the privileged communication under Section 126 of the Act of 1872, held as under: 2.
Having heard the learned counsel for the petitioneRs.I find that the objection is totally meritless.
Section 126 of the Act does not come into play in a case like this.
The purpose of summoning the advocate is not to disclose any confidential communication made by the client to his advocate.
The purpose is only to prove sending of the notice which was sent by the advocate on the information supplied by the client.
The very purpose of sending notice is to communicate the contents to the other side.
There is nothing confidential in nature in the contents of the notice.
There is abundant authority for stating that the Section 126 of the Act is not meant to forbid the disclosure of any fact which was already known or disclosed.
A precisely same question came before this Court in P.
Rajamma v.P.Chintaiah, 1997 (2) An.W.R.253.
It was held by this Court that summoning of advocate cannot be challenged on the ground that it contravenes Section 126 of the Act.
Again in Rev.
Fr.
Bernad Thattil v.
Ramachandra Pillai, 1987 CrLL.J.739 (Ker).the same question arose and it was pointed out that whatever was written or was stated in the notice was evidently the substance which was meant for being disclosed to others and more particularly to the other side.
There was nothing confidential in the contents of the notice which in fact has been communicated to the other side.
The contents were no more confidential so as to claim privilege under Section 126 of the Act.
Of couRs.summoning of the advocate for purposes of proof of sending of the notice will not justify asking of questions which [19].would fall within the mischief of Section 126 of the Act.
If questions, the answers of which would enable the advocate to claim privilege under Section 126 of the Act, are put, it would be open to claim such privilege for such questions.
The purpose for which the present summons has been issued is only to prove the sending of the notice, the contents of which are in no way confidential at all.
In the circumstances, the revision-petition is meritless and is dismissed.
No costs.
In common parlance, the privilege claimed by a client vis-à-vis his lawyer under Section 126 of the Act of 1872 is not an absolute privilege but a qualified privilege.
A counsel may be in possession of other facts which had come to his knowledge otherwise in the couRs.and for the purpose of his professional employment.
Disclosure of such materials is not prohibited by Section 126 of the Act of 1872.
To prove such a fact, the intending party has to summon the lawyer to speak about that fact.
In appropriate cases, if the Court feels that lawyer alone is competent to speak about the facts relevant for the purpose of decision, there is no bar in the Court summoning the lawyer as a witness for the opposite party.
If the grounds set out by the appellant in its application under Order 9 Rule 13 CPC for setting aside ex-parte decree are examined objectively, then it would ipso facto reveal that the appellant has attributed [20].total negligence on the part of its lawyer in not divulging requisite information about order dated 17.11.2005 and subsequent proceedings in the suit.
Looking to the grounds, set out in the application for setting aside ex- parte decree, there remains no shadow of doubt that for meeting such a ground, lawyer representing the cause of the appellant was the only competent person to speak about a material fact.
It was obviously not possible for the respondent to dispel this positive assertion of the appellant without calling its lawyer in the witness box.
As a matter of fact, on his material fact, lawyer of opposite party alone was a competent witness and no other person could have tendered his evidence on this material question of fact.
Moreover, in totality, such a disclosure by the lawyer representing the cause of the appellant, in the backdrop of peculiar facts and circumstances of the instant case, do not fall within the ambit of privileged communication under Section 126 of the Act of 1872.
The other argument of the learned counsel for the appellant pertaining to granting indulgence to the respondent by the learned Court below in summoning record of other Court in exercise of power under Order 13 [21].Rule 10 CPC, suffice it to state that power of civil Court to summon record of other Court is discretionary and Rule 10 of Order 13 CPC postulates that record can be summoned by the Court of its own motion, or at the instance of any party to the litigation.
Well, it is true that the application submitted by the respondent was not supported by affidavit as mandated under sub-rule (2) of Rule 10 of Order 13 CPC but that itself cannot curtail power of the Court to summon record of other Court for its own satisfaction.
In totality, even if the order summoning record of other Court is treated as infirm, I am afraid, impugned order cannot be treated as vitiated for the reason that appellant has failed to show good and sufficient reason for condonation of inordinate delay of three years in laying application for setting aside ex-parte decree.
It is noteworthy that at the behest of appellant no material has been placed on record to show that feeling indignation of the alleged omission by its counsel appellant has initiated any action against him before the Bar Council till date.
This vital fact is yet another mollifying factor to persuade this Court that the cause of delay shown by the appellant is under serious cloud, which has not impressed the learned Court below to exercise its discretion in favour of appellant.
[22].There remains no quarrel in the legal position that considerations are different for setting aside ex-parte order and ex-parte decree, and a party, whose effort for setting aside ex-parte order has proved to be abortive, is not precluded from filing application for setting aside ex- parte decree by showing good and sufficient cause.
However, on critical analysis of the impugned order, there remains no reason to hold that the impugned order is perveRs.and the learned fiRs.appellate Court has not examined the cause of delay shown by the appellant objectively.
Appellant, a company manned by many officials, including Law Officer, cannot be allowed to plead ignorance about pendency of the suit and proceedings going on in the suit on fliMs.pretext that it was assured by the counsel representing its cause that requisite information shall be furnished as and when presence of authorized representative of the company would be necessary.
A company has remained indolent and unaware about the proceedings of the suit for more than three yeaRs.after engaging a counsel, appears to be a lame excuse.
Moreover, this excuse of the company, or cause shown for condonation of delay, stands wiped out after the deposition of the counsel representing its cause [23].that requisite information was divulged to the company about the proceedings in the case and so also about passing of the ex-parte decree.
The Court is quite conscious that in the matter of setting aside ex-parte decree and simultaneous consideration of application for condonation of delay, a liberal approach is to be adopted, but the law enjoins upon the Courts to impart justice and not to condone the delay for mere askance swayed by misplaced sympathies when there is total callousness by a litigant about judicial proceedings.
Hon’ble Apex Court in case of Ramlal & ORS.versus Reva Coalfields Limited (AIR1962SC361 enunciated principles for condonation of delay, as envisaged under Section 5 of the Limitation Act, and held: (7) In construing S.
5 it is relevant to bear in mind two important considerations.
The fiRs.consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties.
In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed.
The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal.
This discretion has been deliberately conferred on [24].the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.
As has been observed by the Madras High Court in Krishna v.
Chattappan, I.L.R13Mad.
269.
"Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."
Dilating on the question of discretion of the Court to condone delay, Hon’ble Apex Court held: (12) It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right.
The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by S.5.
If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone.
If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay.
This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
[25].Therefore, the primary consideration for condonation of delay is that the mistake alleged must be bonafide, i.e., it must have emerged inspite of due care and attention being paid.
A litigant in pursuing his cause is expected to be prompt and vigilant.
While construing sufficient cause all depends upon the circumstances of a case and in analyzing the cause advanced by the party, Court is to see that circumstances were really beyond control preventing him from approaching the Court within time prescribed.
A liberal view for condoning the delay is possible but if it is found that party lacks in bonafides it must suffer for its inaction.
In the instant case, the appellant company remained dormant about suit proceedings for more than three years and has not even cared to see that its right to file written statement has been forfeited.
Three years’ delay, in laying application for setting aside ex-parte decree without any plausible explanation, cannot be excused in the given circumstances inasmuch as for filing a civil suit for money recovery is also three yeaRs.It is also amply clear from the order impugned that the appellant company continued to plead cause in the suit before the learned Court below through its counsel for [26].more than five years is yet another mitigating factor tilting equity in favour of the respondent to conclude that the appellant company has miserably failed to furnish sufficient cause for condonation of delay and the learned Court below has thus rightly turned down its request for condonation of delay and eventual dismissal of its application for setting aside ex-parte decree by the impugned order.
The judgments, on which the learned counsel for the respondent has placed reliance, are not required to be discussed elaborately but applying the ratio decidendi of these decisions, I am not persuaded to interfere in the impugned order under the limited scope of judicial review in this appeal.
Resultantly, I find no merit in this appeal and the same is accordingly dismissed.
(P.K.LOHRA).J.
arora/