K.B. LAL (KRISHNA BAHADUR LAL)versusGYANENDRA PRATAP & ORS.

                  [2024] 4 S.C.R. 616 : 2024 INSC 281

                     K.B. Lal (Krishna Bahadur Lal)
                                    v.
                       Gyanendra Pratap & Ors.
                       (Civil Appeal No. 4785 of 2024)
                                  08 April 2024
           [Sudhanshu Dhulia* And Prasanna B. Varale, JJ.]

                            Issue for Consideration
       Whether there was sufficient cause for delay of fourteen years in
       filing an application under Order IX, Rule 7 of the Code of Civil
       Procedure.

                                    Headnotes
       Code of Civil Procedure, 1908 – Order IX Rule 7 – Application
       filed after delay of 14 years – Limitation Act, 1963, s. 5 –
       Condonation of delay is discretionary power of the court
       – Power to be exercised judiciously – Not in cases of gross
       negligence on part of litigant – 14 years delay cannot be
       condoned – ‘Sufficient cause’ not shown – Gross negligence
       on part of appellant in pursuing the matter.
       Held: Appellant took 14 years to challenge an order of Trial Court
       to proceed ex parte against him – No satisfactory explanation for
       delay in filing application under Order IX Rule 7, CPC – Appellant
       grossly negligent in pursuing the matter before the Trial Court – Trial
       Court, revisional court and the High Court correct in dismissing
       claim – ‘Sufficient cause’ not defined in s. 5, Limitation Act – Has
       to be construed liberally and in order to meet ends of justice –
       Deserving and meritorious cases should not be dismissed solely
       on the ground of delay – Discretionary power of a court to condone
       delay must be exercised judiciously – Delay due to gross negligence
       and/or want of due diligence on the part of the litigant not to be
       condoned – ‘Sufficient cause’ can be given liberal construction when
       no negligence, nor inaction, nor want of bona fide is imputable to
       the litigant [Paras 9, 10]

                                 Case Law Cited
              Majji Sannemma @ Sanyasirao v. Reddy Sridevi &
              Ors. [2021] 9 SCR 476 : (2021) 18 SCC 384; P.K.
              Ramachandran v. State of Kerala and Anr. [1997] Supp.
* Author
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      K.B. Lal (Krishna Bahadur Lal) v. Gyanendra Pratap & Ors.


           4 SCR 204 : (1997) 7 SCC 556; Basawaraj and Anr. v.
           Special Land Acquisition Officer. [2013] 8 SCR 227 :
           (2013) 14 SCC 81; Esha Bhattacharjee v. Managing
           Committee of Raghunathpur Nafar Academy & Ors.
           [2013] 9 SCR 782 : (2013) 12 SCC 649 – relied on.

                               List of Acts
     Code of Civil Procedure, 1908; Limitation Act, 1963.

                            List of Keywords
     Sufficient cause; Condonation of delay; Inordinate delay; Good
     cause; Discretionary power; Negligence.

                           Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4785 of 2024
     From the Judgment and Order dated 19.05.2022 of the High Court of
     Judicature at Allahabad, Lucknow Bench in MUA227 No. 1575 of 2022
                        Appearances for Parties
     Sunil Kumar Jain, Ms. Rashika Swarup, Advs. for the Appellant.
     Mukesh Kumar Sharma, Kartikey, Advs. for the Respondents.
                Judgment / Order of the Supreme Court

                               Judgment
     Sudhanshu Dhulia, J.
1.   Leave granted.
2.   The appellant before this court has challenged the order dated
     19.05.2022 passed by the High Court of Judicature at Allahabad,
     by which the petition filed by the appellant under Article 227 of the
     Constitution of India was dismissed. The appellant had invoked
     the supervisory jurisdiction of the High Court under Article 227 of
     the Constitution of India, against the order dated 28.03.2022 of the
     Additional District Judge, Barabanki, who had upheld the order dated
     07.10.2021 of the Civil Judge (Jr. Division), Barabanki.
3.   The dispute between the parties to this appeal relates to a piece of
     land situated in village Gharsaniya, Pargana Dewa, Tehsil-Nawabganj,
     District - Barabanki, which was sold by one Kalawati (Respondent
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       No. 4 herein) to one Mansa Ram (Respondent No. 5 herein), vide
       sale deed dated 30.03.2006. Thereafter, the property was sold by
       Respondent No. 5 to the appellant herein vide a registered sale
       deed dt. 13.04.2006.
4.     On 22.04.2006, Civil Suit for permanent injunction and cancellation
       of the sale deed dated 30.03.2006, was filed by the Respondent
       Nos. 1, 2 & 3 herein before the Civil Judge (Jr. Division), Barabanki.
       The appellant was impleaded as Defendant No. 3 in the suit. It was
       contended before the Trial Court by Respondent Nos. 1, 2 & 3 that
       Respondent No. 4 had no transferrable right or title over the property
       when the sale deed dated 30.03.2006 was executed in favour of
       Respondent No. 5 and thus, the property could not have been sold
       to Respondent No. 5. Respondent Nos. 1, 2 & 3 asserted their
       claim over the property before the Trial Court stating that they were
       the bhumidhar & joint owners of the suit property and were also in
       possession of the same because the predecessor-in-interest of the
       property was their uncle and he had executed a will deed dated
       20.05.1997 in their favour.
5.     After service of notice, vakalatnama of the appellant’s counsel was
       filed on 22.04.2006. During the course of the hearing, an order dated
       06.09.2006 was passed by the trial court, by which the suit was to
       proceed ex-parte against the appellant. In the order dated 06.09.2006,
       it was recorded by the Trial Court that a perusal of the record would
       indicate that the appellant was duly served, but he did not file any
       written statements, and thus, it would be appropriate to proceed ex-
       parte against him. It is this order of the trial court, which was sought
       to be recalled by the appellant by filing an application under Order
       IX, Rule 7 of the Code of Civil Procedure, 1908 (hereinafter “CPC”).
       However, this application was filed by the appellant on 01.09.2017,
       i.e. after an inordinate delay of almost 11 years. To explain the
       delay, the appellant argued that the summons and notice of the case
       were not received by him and that the advocate appointed by him
       belonged to another city, who did not pursue the case diligently, and
       it was only in the year 2011, when he inspected the case file that he
       came to know about the order dated 06.09.2006. Even here as to
       why it took him another 6 years to file the application, as he had the
       knowledge in any case in the year 2011, has not been explained. But
       this is not enough. Even this application, filed in the year 2017, was
       admittedly not pressed before the Trial Court by the appellant, for
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      K.B. Lal (Krishna Bahadur Lal) v. Gyanendra Pratap & Ors.


     the reason that correct facts were not mentioned in the application.
     Finally, another application under Order IX, Rule 7 of the CPC came
     to be filed yet again by the appellant on 23.11.2020.
6.   This second application filed by the appellant was dismissed by the
     trial court vide order dated 07.10.2021. What weighed in with the trial
     court, while dismissing the appellant’s application under Order IX,
     Rule 7 of the CPC, was the fact that the appellant was duly served
     and had filed vakalatnama of his counsel in April 2006 but did not file
     written statements in time and on 12.07.2011 an application was filed
     by the appellant, seeking permission to file the written statements.
     It was noted by the Trial Court that the explanation tendered by the
     appellant for the delay in filing the application under Order IX, Rule
     7 of the CPC was that the advocate appointed by him at the time
     of receiving summons, i.e., April 2006, did not pursue the matter
     diligently and had defrauded the appellant. Thus, the appellant
     appointed another advocate, namely Shri R.D. Rastogi in May
     2006. This explanation, as noted by the trial court, was based on
     contradictory statements and wrong facts, and no reasonable cause
     was given for the delay caused. Hence, it was dismissed.
7.   Aggrieved by order dated 07.10.2021 by which his application
     under Order IX, Rule 7 of the CPC for setting aside the order dated
     06.09.2006 was dismissed by the trial court, the appellant preferred
     a Revision, which came before Additional District Judge, Barabanki
     (hereinafter referred to as “Revisional Court”). Vide order dated
     28.03.2022, the revisional court dismissed the Civil Revision filed by
     the appellant. The revisional court, upon examination of the material
     on record, found that the first application under Order IX, Rule 7 of
     the CPC which was filed by the appellant on 01.09.2017, was not
     pressed, owing to the fact that initially he had appointed an advocate
     who did not attend the case, and wrong facts were mentioned by
     a ‘junior advocate’ in the first application. Hence, another advocate
     filed the second application on 23.11.2020, mentioning the correct
     facts. Yet, the signature on the first application filed in the year
     2017 and on that of the second application filed in the year 2020
     were of the same advocate, namely, Shri R.D. Rastogi. It was also
     observed by the revisional court that although it was averred by the
     appellant that he was put in dark by the counsel earlier engaged by
     him, there is no reference to his name. Thus, upon consideration of
     the entire material on the record, it was held by the revisional court
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       that the application under Order IX, Rule 7 of the CPC for recalling
       order dated 06.09.2006 was filed by the appellant not only after a
       long delay of 14 years, but also without assigning any satisfactory
       reasons for the delay, hence, the revisional court found no error in
       the order dated 07.10.2021 of the trial court and accordingly, the
       Civil Revision preferred by the appellant was dismissed.
8.     Assailing the order of the revisional court, the appellant filed a
       petition under Article 227 of the Constitution of India, invoking the
       supervisory jurisdiction of the High Court of Judicature at Allahabad.
       The High Court, vide impugned order dated 19.05.2022, affirmed
       the orders of both the courts below and dismissed the petition filed
       by the appellant. The High Court, while dismissing the said petition,
       took note of the fact that the suit was filed before the trial court in
       the 2006, by the respondent-plaintiffs and the appellant-defendant
       appeared and filed the vakalatnama of his counsel on 22.04.2006
       and in the year 2011, moved an application seeking permission
       to file written statements. Upon consideration of the fact that the
       appellant’s counsel remained the same throughout, the High Court
       was of the opinion that while filing the application in the year 2011,
       the appellant’s counsel would definitely have come to know about
       the order dated 06.09.2006, by which the trial court had decided
       to proceed ex-parte against the appellant. Despite this, the first
       application under Order IX, Rule 7 of the CPC was moved only
       on 01.09.2017, which was also not pressed for 3 years, and then
       the second application was moved on 23.11.2020 without showing
       any “good cause”, as required under Order IX, Rule 7 of the CPC.
       Thus, no perversity was found by the High Court in the orders of
       both the courts below. The High Court hence refused to exercise
       its supervisory jurisdiction under Article 227 of the Constitution, and
       in our opinion, rightly so.
       In this case the main question is of delay. Should an inordinate delay,
       which has no reasonable explanation be condoned?
9.     Whether an application filed by the appellant, under Order IX, Rule
       7 of the CPC can be allowed, after a delay of almost 14 years, is
       the only question before us. Was there a sufficient cause for filing
       such a belated application?
       Although the term ‘sufficient cause’ has not been defined in the
       Limitation Act, it is now well-settled through a catena of decisions that
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      K.B. Lal (Krishna Bahadur Lal) v. Gyanendra Pratap & Ors.


     the term has to be construed liberally and in order to meet the ends
     of justice. The reason for giving the term a wide and comprehensive
     meaning is quite simple. It is to ensure that deserving and meritorious
     cases are not dismissed solely on the ground of delay.
10. There is no gainsaying the fact that the discretionary power of a
    court to condone delay must be exercised judiciously and it is not
    to be exercised in cases where there is gross negligence and/or
    want of due diligence on part of the litigant (See Majji Sannemma
    @ Sanyasirao v. Reddy Sridevi & Ors. (2021) 18 SCC 384). The
    discretion is also not supposed to be exercised in the absence of
    any reasonable, satisfactory or appropriate explanation for the delay
    (See P.K. Ramachandran v. State of Kerala and Anr., (1997) 7 SCC
    556). Thus, it is apparent that the words ‘sufficient cause’ in Section
    5 of the Limitation Act can only be given a liberal construction, when
    no negligence, nor inaction, nor want of bona fide is imputable to
    the litigant (See Basawaraj and Anr. v. Special Land Acquisition
    Officer., (2013) 14 SCC 81). The principles which are to be kept
    in mind for condonation of delay were succinctly summarised by
    this Court in Esha Bhattacharjee v. Managing Committee of
    Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649, and
    are reproduced as under:
         “21.1. (i) There should be a liberal, pragmatic, justice-
                oriented, non-pedantic approach while dealing with
                an application for condonation of delay, for the courts
                are not supposed to legalise injustice but are obliged
                to remove injustice.
         21.2. (ii) The terms “sufficient cause” should be understood
               in their proper spirit, philosophy and purpose regard
               being had to the fact that these terms are basically
               elastic and are to be applied in proper perspective
               to the obtaining fact-situation.
         21.3. (iii) Substantial justice being paramount and pivotal
               the technical considerations should not be given
               undue and uncalled for emphasis.
         21.4. (iv) No presumption can be attached to deliberate
               causation of delay but, gross negligence on the
               part of the counsel or litigant is to be taken note of.
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          21.5. (v) Lack of bona fides imputable to a party seeking
                condonation of delay is a significant and relevant
                fact.
          21.6. (vi) It is to be kept in mind that adherence to strict
                proof should not affect public justice and cause
                public mischief because the courts are required to
                be vigilant so that in the ultimate eventuate there is
                no real failure of justice.
          21.7. (vii) The concept of liberal approach has to
                encapsulate the conception of reasonableness
                and it cannot be allowed a totally unfettered free
                play.
          21.8. (viii) There is a distinction between inordinate
                delay and a delay of short duration or few days,
                for to the former doctrine of prejudice is attracted
                whereas to the latter it may not be attracted.
                That apart, the first one warrants strict approach
                whereas the second calls for a liberal delineation.
          21.9. (ix) The conduct, behaviour and attitude of a party
                relating to its inaction or negligence are relevant
                factors to be taken into consideration. It is so as
                the fundamental principle is that the courts are
                required to weigh the scale of balance of justice
                in respect of both parties and the said principle
                cannot be given a total go by in the name of
                liberal approach.
          21.10. (x) If the explanation offered is concocted, or
                the grounds urged in the application are fanciful,
                the courts should be vigilant not to expose the
                other side unnecessarily to face such a litigation.
                ………………………..”
                                                 (emphasis supplied)
       Having perused the application under Order IX, Rule 7 of the CPC
       dated 23.11.2020, filed by the appellant, and the accompanying
       affidavit, wherein the appellant had sought the benefit of Section 5
       of the Limitation Act, for condonation of a delay of almost 14 years,
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      K.B. Lal (Krishna Bahadur Lal) v. Gyanendra Pratap & Ors.


     we find there was no satisfactory or reasonable ground given by the
     appellant explaining the delay. We say this for two reasons. First, it is
     an admitted position by the appellant himself that upon an inspection
     of the case file in the year 2011, he came to know about the order
     dated 06.09.2006, by which the Trial Court had decided to proceed
     ex-parte against him. What prevented the appellant from filing the
     application under Order IX, Rule 7 that year itself has not been
     satisfactorily explained at all, as the first application was only filed
     in the year 2017. Secondly, the explanation offered by the appellant,
     which is that the advocate appointed by him did not pursue the
     matter diligently, and then another advocate was appointed by him
     who inadvertently forgot to file the application does not find support
     from the records. What is clear is that the appellant has been grossly
     negligent in pursuing the matter before the trial court. Thus, the trial
     court, the revisional court as well as the High Court, were correct
     in dismissing the belated claim of the appellant. We find no reason
     to interfere with the impugned order dated 19.05.2022 of the High
     Court of Judicature at Allahabad.
     The appeal stands dismissed.


     Headnotes prepared by:                                Result of the case:
     Mukund P Unny, Hony. Associate Editor                 Appeal dismissed.
     (Verified by: Shibani Ghosh, Adv.)