Research Question
When does the limitation start in the case of ex-parte order if I came to know about the same after 2
years of the passing of such order?
Probable Answer
According to the 1st Schedule of the Limitation Act, 1963, the following are the limitation periods for
filing an appeal under section 96 of the Code of Civil Procedure, 1908: -
116. Under the Code of Civil Period of Time from which period begins to
Procedure, 1908 (5 of 1908) limitation run
(a) to a High Court from any Ninety Days The date of the decree or order.
decree or order.
(b) to any other court from any Thirty Days The date of the decree or order.
decree or order.
117. From a decree or order of any Thirty Days The date of the decree or order.
High Court to the same Court.
However, under section 5 of the Limitation Act, 1963, an aggrieved party may apply for condonation
of delay. The said section read as follows: -
Section 5 - Extension of prescribed period in certain cases
“Any appeal or any application, other than an application under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908, maybe admitted after the prescribed period, if the appellant or
the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the
application within such period.”
“Explanation.--The fact that the appellant or the applicant was misled by any order, practice or
judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause
within the meaning of this section.”
The Hon’ble SC had enunciated certain principles in Perumon Bhagvathy Devaswom v. Bhargavi
Amma (Dead) by LRs. and Ors.,1 which are applicable while considering applications for
condonation of delay under Section 5, and maybe summarized as follows: -
The words “sufficient cause", as appearing in Section 5 of Limitation Act, should receive a liberal
construction when the delay is not on account of any dilatory tactics, want of bona fides,
deliberate inaction, or negligence on the part of the applicant/appellant, to advance substantial
justice. The words "sufficient cause for not making the application within the period of limitation” should
be understood and applied in a reasonable, pragmatic, practical, and liberal manner, depending
upon the facts and circumstances of the case.
The decisive factor in condonation of delay is not the length of delay but the sufficiency of a
satisfactory explanation.
The Court’s observation is the instant case was subsequently reaffirmed by the Supreme Court in the
case of Katari Suryanarayana and Ors. v. Koppisetti Subba Rao and Ors .,2 and Balwant Singh
(Dead) v. Jagdish Singh & Ors.3 Since what constitutes a "sufficient cause” under Section 5, there is
no straitjacket formula for determining the same. The Hon’ble SC had noted in Collector, Land
Acquisition, Anantnag and Ors. vs. Katiji and Ors.4 that “the expression sufficient cause is adequately
elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice”.
It is also to be noted that when the special law did not exclude the applicability of provisions of
Sections 4 to 24 of the Limitation Act by an express reference, it would be open to the court to
examine whether, and to what extent, the nature of the subject matter and scheme of the special law
should exclude their operation. In Commissioner of Customs and Central Excise v. Hongo India
(P) Ltd. & Ors.,5 it was observed that Central Excise Act did not provide for condonation of delay
by showing sufficient cause, held that the Hon'ble Allahabad HC was justified in holding that there
was no power to condone the delay after expiry of the prescribed period under the Central Excise
Act.
1 (2008) 8 SCC 321
2 AIR 2009 SC 2907
3 AIR 2010 SC 3043
4 AIR 1987 SC 1353
5 2009 (4) CTC 390
Alternatively,
In case of an ex-parte order about which the defendant was unaware; the defendant may apply under
Order IX Rule 13 for setting aside such ex-parte decree. The bare provision of the same read as
follows: -
13. Setting aside decree ex parte against defendants
“In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by
which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons
was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order setting aside the decree as against him upon such
terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit:”
“Provided that where the decree is of such a nature that it cannot be set aside as against such defendant
only it may be set aside as against all or any of the other defendants also:”
“[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that
there has been an irregularity in the service of summons if it is satisfied that the defendant had notice
of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.]”
“[Explanation.--Where there has been an appeal against a decree passed ex parte under this rule,
and the appeal has been disposed of on any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.]”
It is to be noted that for such application to be allowed the defendant has to satisfy the court that the
summons was not duly served or the defendant was prevented by any “Sufficient Cause” from
appearing before the court. The "Sufficient Cause" expression is elastic and varies from case to case.
In the case of Arjun Singh vs. Mohindra Kumar & Ors.6 it was observed that “every good cause is a
sufficient cause and must offer an explanation for non-appearance. The only difference between a good cause and sufficient
cause is that the requirement of a good cause is complied with on a lesser degree of proof than that of a sufficient cause.”
In Parimal vs. Veena@ Bharti7, the Supreme Court opined that “Sufficient Cause is an expression which
has been used in a large number of statutes. The meaning of the word sufficient is adequate or enough, in as much as
6 1964 AIR 993.
7 (2011) 3 SCC 545.
may be necessary to answer the purpose intended. Therefore, word sufficient embraces no more than that which provides
a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in
a case and duly examined from the viewpoint of a reasonable standard of a common man. In this context, sufficient cause
means that the party had not acted negligently or there was a want of bonafide on its part in view of the facts and
circumstances of a case or the party cannot be alleged to have been not acting diligently or remaining inactive.”
It is also pertinent to note that courts while applying their discretion have to see that defendant made
the honest and sincere efforts to be present all the time of the hearing. The Delhi High Court in M/S
Hira Sweets and Confectionary PVT. LTD. and Others vs. Hira Confectioners 8, observed that
“sufficient cause” is a flexible expression and there cannot be a straitjacket formula to determine its
scope.
In Bhanu Kumar Jain v. Archana Kumar and Anr .9, Hon’ble Supreme Court held that once the ex-
parte decree is passed the defendant has two choices, either to file an application under Order IX Rule
13 or to file an appeal under Section 96 of CPC. The defendant can take recourse to both proceedings
simultaneously. The Court further held that there is no statutory bar to avail both the remedies
simultaneously or consecutively. The same was also held in the case of Bhivchnadra Shankar More
vs. Balu Gangaram More and Ors.10
8 MANU/DE/0789/2021.
9 AIR 2005 SC 626.
10 2019 (7) SCJ 563.
