wp9118.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 9118 OF 2010 SHIVAJI LIMBAJI SHIRSAT ... PETITIONER. VERSUS SHRI VRADESHWAR AGRICULTURAL PRODUCE TRANSPORT PVT LTD THROUGH PROPRIETOR AND ORS ... RESPONDENTS. ... Advocate for Petitioner(s) : Mr. Bhumkar R.P. Advocate for Respondent(s) : Mr. Rajale Gulab for R-1, Mr.N.V. Yadav, for R/4. ... CORAM : S.S. SHINDE,J. 5th SEPTEMBER, 2011. PER COURT: 1. This writ petition takes exception to the order dated 1st April, 2010 passed by the C.J.S.D., Ahmednagar in M.A. No.72/2008 thereby confirming the order dated 18th January, 2005 passed by the 3rd Jt. C.J.S.D. & J.M.F.C., Ahmednagar in Special Civil Suit No.43/2001. wp9118.10 2 2. The learned Counsel for the petitioner submits that no summons was received by him and in absence of service of summons on the petitioner, ex parte decree came to be passed by the trial Court. Therefore, the application for setting aside the decree was filed along with an application for condonation of delay. It is submitted that the Bailiff prepared a report and panchanama on which two witnesses have signed. However, the said witnesses deposed before the Court that they have never signed the said panchanama. Therefore, according to the learned Counsel for the petitioner, there was no service of summons and that ground alone was sufficient to set aside the ex parte decree. It is further submitted that in the year, 2003, some offence was registered against the petitioner and he was in custody for about 91 days. Therefore, according to the learned Counsel for the petitioner when summons was not served upon the petitioner, there was no notice to the petitioner and therefore, ex parte decree passed by the trial Court cannot be sustained. Therefore, the wp9118.10 3 application under Order 9, Rule 13 of the Code of Civil Procedure with an application for condonation of delay ought to have been allowed by the trial Court. However, erroneously, the trial Court has rejected the application for condonation of delay caused in filing the application under Order 9, Rule 13 of CPC and, therefore, he would submit that the writ petition may be allowed. He further submits that the petitioner is ready to deposit Rs.25,000/- and this Court may direct the trial Court to decide the matter on its own merits. 3. On the other hand, the learned Counsel for respondents invited my attention to paragraph 10 of the impugned judgment and submitted that in the cross-examination of the applicant i.e. petitioner herein, he has admitted that in the year, 2005 he received notice of the execution proceedings. Therefore, according to the learned Counsel for respondents, the delay of three years has not been explained by the petitioner, there is no sufficient cause disclosed in the application for condonation of wp9118.10 4 delay, the delay in filing application under Order 9, Rule 13 of CP is inordinate and, therefore, this Court may not interfere in the impugned judgment and order. 4. I have given due consideration to the rival submissions of the learned Counsel for the parties. At the outset, it is relevant to mention that this Court on 3rd May, 2011 directed the petitioner to deposit costs of Rs.500/- for seeking adjournment. However, it appears that the said amount has not been deposited till the date by the petitioner. 5. It is an admitted position that the petitioner herein has admitted in his cross-examination that he has received the notice of the execution proceedings in the year, 2005. However, the application was filed under Order 9, Rule 13 CPC accompanied by application for condonation of delay in the year, 2008. The explanation offered in the application for condonation of delay is in para 3 of the Application wp9118.10 5 No.72/2008. In said para, it is stated by the petitioner / applicant that the petitioner herein appeared in the execution proceedings and appraised the Court that the main proceedings are decided in his absence. The applicant / petitioner applied for certified copy of the judgment and decree in Special Civil Suit No. 43/2001 and after obtaining the certified copy, the application was filed. The delay was caused for some valid reasons and it was not intentional and, therefore, in the interest of justice, it is necessary to condone the delay. 6. On careful perusal of para 3 of the application filed before the trial Court, it is abundantly clear that even the applicant / petitioner has not mentioned as to on which date the certified copy of the judgment and decree in Special Civil Suit No.43/2001 was applied, when he received the same and that apart, there is no any other material particulars given in the said para to explain the delay of more than three years in filing the application under order 9, Rule 13 wp9118.10 6 of the CPC. 7. It is true that the term "sufficient cause" used in section 5 of the Limitation Act shall receive liberal interpretation. However, in the instant case, no any proper explanation has been given by the applicant / petitioner in the application for condonation of delay, no better particulars are provided, only general statement has been made. The applicant / petitioner should have given detailed particulars, if any, and should have explained the delay properly. When there is more than three years delay, the party should be diligent in bringing to the notice of the Court that there was sufficient cause for the delay caused in filing of the proceedings. However, in the instant case, no such explanation / sufficient cause has been disclosed in the application for condonation of delay. The Counsel for the petitioner invited my attention to the reported judgment of the Supreme Court in case of Collector, Land Acquisition, Anantnag v/s Mst. Katiji (AIR 1987 SC 1353) and submitted wp9118.10 7 that liberal approach is required to be adopted while considering the application for condonation of delay. There is no dispute about it and by this time, it is well settled that the term "sufficient cause" as exists in section 5 of the Limitation Act, should receive liberal approach. However, in the given case, there is inordinate delay and if there is sufficient cause shown in the application, the Court may condone such delay. However, if there is small delay and there is no sufficient cause disclosed for it, the Court may not be able to allow such application. Therefore, it depends on the facts of each case. Therefore, reliance placed by the learned Counsel for the petitioner on the judgment in case of Collector, Land Acquisition, Anantnag (supra) is wholly misplaced, in the facts of the present case. 8. In para 11 of the impugned judgment the Court has also observed that when the Bailiff visited the house of the petitioner / applicant, he was prevented from serving the summons. It is true that wp9118.10 8 panchanama was signed by two witnesses and they have stated before the Court that no such panchanama was signed by them. However, as concluded by the trial Court, there is no proper explanation offered by the petitioner to condone the delay. 9. The decree passed by the trial Court is a money decree and time and again the Supreme Court has reminded that in financial matters, the Court should be slow in interfering with the judgment and decree. 10. In the light of above discussion, I find no substance in the writ petition and the same stands dismissed. [ S.S. SHINDE ] JUDGE. ... PLK/*