Institute of Legal and Management Studies

On Tuesday (May 13), the Supreme Court overturned the Madras High Court's decision that had condoned the 1,116-day delay in filing an appeal against an ex-parte decree, which had become final after being dismissed by the Supreme Court in a different proceeding.

The Court stated that it would be impermissible for a litigant, against whom an ex-parte order was passed, to file an appeal challenging the ex-parte order by re-agitating issues that were previously raised and dismissed in separate proceedings under Order IX Rule 13 CPC (application to set aside the ex-parte decree).

The bench comprising Justices BV Nagarathna and SC Sharma heard the case where the Appellant filed an appeal before the High Court with a delay of 1,116 days, seeking to set aside an ex-parte decree, despite previously exhausting the remedy under Order IX Rule 13 of the CPC (application to set aside an ex-parte decree/order), which had been dismissed by the Supreme Court in a separate proceeding.

Aggrieved by the High Court's decision to condone the delay that occurred in preferring an appeal, the Appellant moved to the Supreme Court.

Setting aside the High Court's decision, the judgment authored by Justice Sharma observed that since the respondents had already exhausted their remedy under Order IX Rule 13 CPC, 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 observed that the 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 Court deemed the High Court's condonation of the delay unjustified.

“In the present appeal, the Respondents seek 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. This Court is of the considered view that such a repetition of grounds already scrutinized and held untenable amounts to an abuse of the process of law. Although the applications for condonation of delay are filed under different provisions of the law but the said provisions provide for concurrent remedies through different mechanisms and if the application filed under one provision has already been dismissed by a court of competent jurisdiction, by applying its judicial mind and held that the reasons for delay were not sufficient, a subsequent application filed under different provision, reiterating the same contentions or grounds of delay, cannot be entertained.”, the court observed.

Delay can be condoned only if bona fides are shown

The Court added :

"It is a well-settled law that while considering the plea for condonation of delay, the first and foremost duty of the court is to first 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 is equally balanced or stand on equal footing, the court may consider the merits of the main matter for the purpose of condoning the delay"

"Further, this Court has repeatedly emphasised in several cases that 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 have failed to demonstrate reasonable grounds of delay in pursuing the matter, and this crucial requirement for condoning the delay remains unmet."

In terms of the aforesaid, the Court allowed the appeal and set aside the impugned finding condoning the delay.

Case Title: Thirunagalingam Versus Lingeswaran & Anr.

Citation : 2025 LiveLaw (SC) 560

Click here to read/download the judgment

Appearance:

For Petitioner(s): Mr. S. Nagamuthu, Sr. Adv. Mr. M.p. Parthiban, AOR Ms. Priyaranjani Nagamuthu, Adv. Mr. Ankur Prakash, Adv. Mrs. Priyanka Singh, Adv. Mr. Bilal Mansoor, Adv. Mr. Shreyas Kaushal, Adv. Mr. S. Geyolin Selvam, Adv. Mr. Alagiri K, Adv.

For Respondent(s) : Mr. A.Velan , AOR Mr. Navpreet Kaur, Adv. Mr. Prince Singh, Adv. Mr. Nilay Rai, Adv.