Ambarish Kumar Singh vs Bhilai Scan Research Limited

This Civil Revision is filed against the order dated 5.12.2023 passed in MJC No.264/2023 by the Sixth Additional District Judge, Durg, whereby, an application preferred by the respondents/defendants under Rule Order 9 Rule 13 read with Section 151 of the CPC to set-aside the ex-parte judgment and decree dated 25.3.2022 passed by the Sixth Additional District Judge, Durg in Civil Suit No.10-A/2020 (Ambarish Kumar Singh V. Bhilai Scan and Research Limited and others), was allowed.

Brief facts of the case are that the applicant/plaintiff filed a Civil Suit on 24.1.2020 for recovery of the licence fee and eviction from the suit property, in which, an ex-parte judgment and decree was passed on 25.3.2022. Thereafter, the plaintiff filed an Execution Case for execution of the aforesaid judgment and decree. On 16.5.2022, notices were issued by the Executing Court. Thereafter, the respondents/defendants filed an application under Order 9 Rule 13 of the CPC to set-aside the ex-parte judgment and decree and the said application was allowed by the impugned order. Hence, this revision.

Learned counsel for the applicant would submit that the defendants have not shown sufficient cause for setting aside the ex-parte judgment and decree and moreover, they had also handed over the vacant possession of the suit premises to the plaintiff. Further, they did not prefer the application even within 30 days from the date of knowledge of the decree and also no application was filed for condonation of delay, therefore, the impugned order is bad in law. Hence, he prays to allow the revision and set-aside the impugned order.

On the other hand, learned counsel for the respondents would support the impugned order and submits that the trial Court has assigned cogent reasons in the order that a proceeding is pending consideration before the National Company Law Tribunal, Mumbai and by order dated 29.9.2017, the position of the Director of the subject Company has been ceased and a liquidator has been appointed, therefore, no suit would be instituted against the Director. He would further submit that if there is sufficient material on record which discloses the cause of delay, no formal application is required for condonation of delay in filing the application. For the above submission, he places reliance on the judgment rendered in the matter of Sesh Nath Singh and another Vs. Badyabati Sheoraphuli Co-operative Bank Ltd. and Anr, AIR 2021 SC 2637.

Heard learned counsel for the parties and also perused the record with utmost circumspection.

In the matter of Sesh Nath Singh (Supra), it has been categorically observed that Section 5 of the Limitation Act does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application or preferring the appeal, within the time prescribed and there is no bar to exercise its discretion by the Court/Tribunal to condone the delay in absence of a formal application. The relevant para 63 and 64 reads thus :

Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application.

A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application.

It is also well settled that the expression “sufficient cause” must be liberally construed and a broad view must be taken so that a Court may exercise powers ex debito justitiae. “Sufficient cause” for the purposes of Order IX, rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. However, the absence should not be mala fide or intentional.

It is pertinent to mention here that when an accommodation is given on rent, the Rent Control law attracts, which has already been enacted in the State of Chhattisgarh. Further, some disputes are also pending consideration before the National Company Law Tribunal and liquidation proceedings have already commenced and a leave and license agreement has also been executed by the parties and in such backdrop, a civil suit has been filed for recovery of the license fee and possession, which was decided ex-parte and the defendants have shown sufficient cause to set-aside the ex-parte decree.

For the foregoing discussion, this Court does not find any infirmity and illegality in the impugned order, which does not call for any interference. The revision fails and is hereby dismissed.