1 1151.11-ao IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 1151 OF 2011 Deepak Somaiya. ... Appellant. V/s. Mrs.Hansaben Natwarlal Shah and others. ... Respondents. Sudhir V. Sadavarte for the appellant. Miss Rekha P. Safari for respondent No.1. CORAM: R.M.BORDE, J. DATED : 17th October 2011. P.C. : The notice of motion seeking condonation of delay of 639 days caused in taking out notice of motion for setting aside exparte judgment and decree dated 4th November 2009 passed in favour of the plaintiff came to be rejected by the trial Court by passing the order dated 27th September 2011. As such, the appellant has approached this Court by way instant appeal from order. 2. Certain facts leading to the present notice of motion, which cannot be controverted, are thus: . In the year 1999, the original tenant died and one Prakash, son of Natwarlal was inducted in the premises. He claims to be in 2 1151.11-ao possession since 1997. The original plaintiff/ respondent No.1 herein filed a suit claiming that Prakash, who was inducted by defendant No. 1, is a trespasser and sought recovery of possession of the premises. The plaintiff is the legally wedded wife of the original owner. The notice of motion (Exh.5), which was taken out claiming interim order, was rejected. The defendant claims to have received suit summons which were issued on 31st March 2009 wherein returnable date was given as 24th June, 2009. Service was stated to have been effected on 17th June 2009. It further transpires that the returnable date in the matter was extended up to 18th July 2009. On 18th July 2009, the suit proceeded ex parte. It appears that advocate for the defendant caused appearance on 1st September 2009 and requested for time. It further transpires that the suit came to be decreed ex parte on 4th November 2009. The original defendant No.1/ present appellant preferred first appeal raising exception to the exparte decree before this Court. The appeal was barred by time as such an application was tendered seeking condonation of delay in filing first appeal. This Court, after hearing both sides, was pleased to dismiss first appeal preferred by the appellant- defendant on 13th December 2011 keeping liberty open to the defendant to seek appropriate remedy to get the ex parte decree set aside. Availing liberty granted by this Court while disposing of first appeal, the defendant preferred an application for setting aside ex parte decree under order 9 rule 13 of Code of Civil Procedure, 1908 (C.P.C.). There occurred delay of about 639 days in approaching the Court, as such, application was moved to the Court for condonation of delay. The learned trial Judge found that the delay caused is unreasonable and not explained properly by defendant No.1, as such, dismissed the application for condonation of delay. 3 1151.11-ao 3. I have perused the order passed by the trial Court and heard respective counsel appearing for the parties. It appears that the trial Court overlooked the fact that defendant No.1 had moved this Court by filing first appeal on 13th December 2009 against the ex parte decree passed by the trial Court which, ultimately, came to be dismissed on 2nd August 2011. The trial Court has not considered the period which was consumed in prosecuting first appeal before this Court. The trial Court ought to have considered the provisions of section 14 of the Limitation Act and ought to have permitted exemption of the period between 13th December 2009 to 2nd August 2011 which was exhausted in prosecuting the remedy of first appeal before this Court. If this period of two years is considered then the delay occurred in presenting the application for setting aside the ex parte decree needs to be condoned. In any case, the Court should be liberal in condoning the delay and endeavour shall always be made to decide the matters considering the merits of the contentions raised. Inconvenience caused to the respondent No.1/ original plaintiff can be compensated by directing payment of costs. 4. For the reasons recorded above, I am convinced that the application tendered by the appellant for condonation of delay of 639 days occurred in presenting application for setting aside ex parte decree has to be allowed and the delay has to be condoned, however, subject to payment of costs. The appellant herein shall deposit an amount of Rs.10,000/- towards costs payable to the respondent/ original plaintiff No.1 within a period of four weeks from today. Subject to the condition of deposit of costs, delay of 639 days caused in moving 4 1151.11-ao application for setting aside ex parte judgment and decree dated 4th November 2009 stands condoned. The appellant shall pay costs of Rs. 10,000/- to the respondent/ original plaintiff. It is needless to mention that the amount of costs, if deposited by the appellant before City Civil Court, same shall be permitted to be withdrawn by respondent No.1/ original plaintiff. 5. The trial Court shall dispose of Notice of Motion No. 2103/2011 taken out in Suit No.1549/2008 on its own merits in accordance with law as expeditiously as possible, preferably, within six months from today. 6. The stay granted by the trial Court stands extended for a period of four weeks from today. 7. Accordingly, appeal from order is allowed. In view of disposal of appeal from order, pending civil application does not survive and stands disposed of. (R.M.BORDE, J.)