Andhra Pradesh High Court – Amravati
M/S. Murali Spinning Mills Limited … vs K. Sivakumar 2 Ors. on 31 July, 2025
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI * THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM I.A.Nos.1, 2 of 2022, 2 of 2024 & 1 of 2025 in APPEAL SUIT NO: 594/2005 % 31.07.2025 # 1. M/s. Murali Spinning Mills Ltd., & another ......appellants/applicants in I.A.Nos.1 & 2 of 2022 And: $1. K. Siva Kumar & 2 others ....Respondents/respondents in I.A.Nos.1 & 2 of 2022. !Counsel for the petitioner : Sri Dama Seshadri Naidu assisted by Sri P.Hemachandra ^Counsel for the respondent : Sri C.V.Mohan Reddy, assisted by Sri C.Sumon and Sri Vinay Navare, assisted by Palanki Karteek <Gist: >Head Note: ? Cases referred: 1. 2024 SCC OnLine SC 1878 2. (2023) 10 SCC 531 3. @ SLP (CIVIL) No.25511 of 2024 4. (2013) 12 SCC 649 5. 1998 SCC OnLine P & H 254 6. 2025 INSC 53 7. (2000) 3 SCC 54 8. 2025 INSC 53 2 HIGH COURT OF ANDHRA PRADESH AT AMARAVATI **** I.A.Nos.1, 2 of 2022, 2 of 2024 & 1 of 2025 in APPEAL SUIT NO: 594/2005 DATE OF JUDGMENT PRONOUNCED: 31.07.2025 SUBMITTED FOR APPROVAL: THE HON'BLE SRI JUSTICE RAVI NATH TILHARI & THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM 1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments? 2. Whether the copies of judgment may be Yes/No marked to Law Reporters/Journals 3. Whether Your Lordships wish to see the fair Yes/No copy of the Judgment? ____________________ RAVI NATH TILHARI,J ______________________________ MAHESWARA RAO KUNCHEAM,J 3 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM I.A.Nos.1, 2 of 2022, 2 of 2024 & 1 of 2025 in APPEAL SUIT NO: 594/2005 ORDER:
-(per Hon’ble Sri Justice Ravi NathTilhari)
Heard Sri Dama Seshadri Naidu, learned senior counsel appearing
through virtual mode assisted by Sri P.Hemachandra, learned counsel for the
appellants/applicants; Sri C.V.Mohan Reddy, learned senior counsel assisted
by Sri C.Sumon, learned counsel and Sri Vinay Navare, learned senior
counsel assisted by Palanki Karteek, learned counsel for respondent Nos.1 to
3.
2. We also heard Sri Ch.Srinivas, learned counsel for the proposed
respondent Nos.4 to 13, who have filed I.A.No.2 of 2024 for their impleadment
on the ground of being the subsequent transferees, after the dismissal of
appeal in default.
3. The respondent Nos.1 to 3 in the appeal were the plaintiffs in O.S.No.32
of 2000 in the Court of V Additional District Judge, Tirupati, Chittoor District.
The suit was filed against the defendants/appellants for partition/division of
plaint schedule properties into two equal shares by metes and bounds and to
allot one such share to the plaintiffs and to put them in separate possession
and enjoyment of the same as also for the costs.
4. The suit was decreed for a preliminary decree on 24.06.2003 and
challenging the preliminary decree A.S.No.594 of 2005 was filed.
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5. The appeal came to be dismissed by an order dated 23.03.2018 in
default. The order dated 23.03.2018 reads as under:
“This appeal is filed against judgment and decree dated 24.06.2005 in O.S.No.32 of
2000 on the file of V Additional District Judge, Tirupathi.
2. A perusal of the proceeding sheet shows that the case underwent 18 adjournments
in all. From 20.12.2017, the case has been posted on four occasions, excluding today’s
hearing. On three out of four occasions, the case was adjourned due to non-
representation of the counsel for the appellants. Even today also, there is no
representation for the appellants. From the continuous absence of the counsel for the
appellants, it is reasonable to presume that neither he nor the appellants, are interested
in pursuing the cause in the appeal.
3. Hence, the appeal is dismissed for non-prosecution.
4. As a sequel to the dismissal of the appeal, miscellaneous applications if any, stand
dismissed.”
6. I.A.No.2 of 2022 has been filed to set aside the order dated 23.03.2018
and to restore A.S.No.594 of 2005. I.A.No.1 of 2022 has also been filed to
condone the delay of 1474 days in filing I.A.No.2 of 2022.
7. The aforesaid I.A.Nos.1 & 2 of 2022 were allowed by a Co-ordinate
Bench by an order dated 09.09.2024. The said order reads as under:
“Heard Mr. DamaSeshadri Naidu, learned Senior Counsel, who appeared
through online. Referring to the averments made in the affidavit filed in support
of the I.A., learned Senior Counsel would submit that on coming to know about
the order dated 23.03.2018 dismissing the Appeal for default, immediately an
application seeking to set aside the said order was filed on 13.04.2018 vide
I.A.S.R.No.9938 of 2018 before the erstwhile common High Court as is evident
from the case status details furnished separately. He submits that while the
said application was pending for scrutiny, the bifurcation of the High Court took
place and it would appear subsequently the restoration petition i.e.,
I.A.S.R.No.9938 of 2018 was misplaced. In those circumstances, the learned
Senior Counsel submits that the present application is filed along with I.A.No.1
of 2022, to condone the delay in seeking to set aside the order dated
23.03.2018 and to restore the Appeal to file.
He also submits that in compliance with the earlier directions dated
03.08.2022, personal notice was taken out on the respondents and the same is
served on them. He submits that, as a matter of fact the application seeking to
restore the appeal by setting aside the order dated 23.03.2018 was filed within
time and therefore, the applications may be ordered.
5
Considered the submissions made. Despite service of personal notice,
none entered appearance on behalf of the respondents.
Having perused the material on record, including the case status
details, which clearly reflects the filing of restoration petition i.e., IASR No.9938
of 2018 on 13.04.2018, the question of delay does not arise and on the other
hand it goes to show that the petitioners acted with promptitude in filing the
application seeking to set aside the order dated 23.03.2018.
For the aforesaid reasons, these Interlocutory Applications are allowed
and the appeal is restored to file.”
8. A perusal of the order dated 09.09.2024 shows that the
appellants/applicants’ case, seeking recall of order dated 23.03.2018 by which
the appeal was dismissed, was that they immediately filed an application
seeking to set aside the order dated 23.03.2018 on 13.04.2018 vide
I.A.Sr.No.9938 of 2018 before the erstwhile common High Court. In support
thereof the case status details was furnished separately. The Co-ordinate
Bench accepted the explanation furnished that IA.Sr.No.9938 of 2018 was
pending for scrutiny and at that time bifurcation of the High Court took place
and subsequently, IA.Sr.No.9938 of 2018 was misplaced. Under those
circumstances, l.A.Nos.1 & 2 of 2022 which were filed seeking to set aside the
order dated 23.03.2018 and also for condonation of delay were allowed. From
the order dated 09.09.2024 it is also reflected that none appeared for the
respondents and on perusal of the material on record including the case
status details the Co-ordinate Bench allowed the applications I.A.Nos.1 & 2 of
2022.
9. The respondents in the appeal filed I.A.No.1 of 2024 for recall of the
order dated 09.09.2024. I.A.No.1 of 2024 was allowed on 10.12.2024 by the
Co-ordinate Bench and thereby the order dated 09.09.2024 was recalled.
6
I.A.Nos.1 & 2 of 2022 were restored to file. The order dated 10.12.2024 reads
as under:
“Seeking to recall the order dated 09.9.2024, the present application is filed.
The learned Senior Counsel for the petitioners, inter alia, submits that in I.A.
Nos.1 and 2 of 2022 filed by the respondents herein seeking to set aside the order
dated 23.3.2018 and to restore the appeal to file, a Division Bench of this Court
issued notice to the petitioners herein on 03.8.2022 and on receipt of the same,
the petitioners herein entered appearance through a counsel i.e., Mr.Rama
Krishna Pativada on 27.9.2022, vide USR No.68228 of 2022 and as such there
was no delay on the part of the petitioners. He submits that to the petitioners’ utter
surprise, they came to know that the said I.A. Nos.1 and 2 of 2022 were allowed
on 09.9.2024, inter alia, on the ground that despite service of notice none entered
appearance on behalf of the petitioners herein. He submits that though the vakalat
on behalf of the petitioners was filed on 27.9.2022, the name of the counsel for
the petitioners was not shown in the cause list and as such there was no occasion
for the counsel to notice listing of the case at any point of time after 27.9.2022 and
represent the case. He further submits that as there is no mistake on the part of
the petitioners and lapse is on the part of the Registry in not putting up the vakalat
along with the file, the order dated 09.9.2024 has to be recalled. Else, the
petitioners would be seriously prejudiced. We have also heard Mr.Dama Seshadri
Naidu, learned Senior Counsel, who appeared through online on behalf of the
respondents. Perused the counter affidavit.
Considering the submissions made and perusing the vakalat dated 27.9.2022,
we find justification and merit in the submissions made by the learned Senior
Counsel for the petitioners. It appears that as the vakalat is not placed along with
the file, the name of the petitioners’ counsel was not reflected in the cause list and
for the said reason they had no opportunity to contest I.A. Nos.1 and 2 of 2022.
Therefore, the order dated 09.9.2024 is recalled.
I.A. Nos.1 and 2 of 2022 are restored to file.
Registry to list the matters on 24.12.2024.”
10. A perusal of the order dated 10.12.2024 shows that I.A.No.1 of 2024 to
recall the order dated 09.09.2024 was allowed as for the respondents the
7
vakalat was filed on 27.09.2022 but the name of the learned counsel for the
respondents was not shown in the cause list and consequently, there was no
appearance for the respondents on 09.09.2024 to represent the case. For the
said reason, observing that the respondents had no opportunity to contest
I.A.Nos.1 & 2 of 2022 the order dated 09.09.2024 was recalled.
11. Thus, I.A.Nos.1 & 2 of 2022 have come up before this Court, for
consideration.
12. I.A.No.2 of 2024 has been filed for impleading the proposed respondent
Nos.4 to 13 i.e., petitioners of this application, as respondent Nos.4 to 13 in
the appeal. The application has been filed on the ground that those proposed
respondents became absolute owners and possessors of the part of the suit
scheduled property by virtue of the registered sale deeds from the
plaintiffs/respondents 1 to 3. They have annexed the copies of the different
sale deeds and the Will deeds in support of I.A.No.2 of 2024. I.A.No.1 of 2025
has also been filed by the proposed respondents 4 to 13 seeking leave of the
court to file I.A.No.2 of 2024.
13. The respondents and the proposed respondents have filed their
respective counter affidavits to I.A.Nos.1 & 2 of 2022 to which the appellants-
applicants have also filed their rejoinder affidavits.
14. Sri Dama Seshadri Naidu, learned senior counsel for the
appellants/applicants submitted that A.S.No.594 of 2005 was dismissed for
default on 23.03.2018 and for recall of the said order an application
8
I.A.Sr.No.9938 of 2018 was filed on 13.04.2018 within the period of limitation
but the said application remained pending at SR stage before the erstwhile
High Court for the State of Telangana and for the State of Andhra Pradesh.
After bifurcation, I.A.Sr.No.9938 of 2018 was not posted inspite of several
efforts as the same was misplaced. The I.A.Sr.No.9938 of 2018 could also not
be traced, and so, it was not posted. Subsequently, learned counsel for the
appellants/applicants submitted a letter dated 28.09.2021 to the Registrar
(Judicial), High Court for the state of Telangana for transferring the file to High
Court of Andhra Pradesh. Upon which, it was informed that the letter should
be addressed to the Registrar (Judicial) at Andhra Pradesh High Court. So a
letter dated 28.10.2021 was addressed to the Registrar (Judicial) at Andhra
Pradesh High Court, and pursuant thereto, the Registrar (Judicial) at Andhra
Pradesh High Court had written a letter to Registrar (Judicial), High Court of
Telangana on 02.11.2021. Then the file was transferred to High Court of
Andhra Pradesh in the month of March, 2022. Learned senior counsel
submitted that as I.A.Sr.No.9938 of 2018 was not in the bundle at the time of
bifurcation which was at the stage of scrutiny, and could not be traced, the
appellants filed I.A.No.2 of 2022 to set aside the order of dismissal in default
as also I.A.No.1 of 2022 to condone the delay of 1474 days. He submitted that
the first application I.A.Sr.No.9938 of 2018 for recall of the order dated
23.03.2018, was filed within the period of limitation on 13.04.2018. He thus
submitted that under the circumstances, there was sufficient cause and the
9
applications deserved to be allowed and the appeal deserved to be restored
for hearing on merits.
15. The letter of applicants to the Registrar (Judicial), High court of
Telangana as also to the Registrar (Judicial), High Court of Andhra Pradesh
referred to above have been brought on record along with I.A.No.2 of 2022.
16. Sri Dama Seshadri Naidu, learned senior counsel for the
appellants/applicants placed reliance in Mool Chandra v. Union of India1 and
Sheo Raj Singh v. Union of India2.
17. Sri C.V.Mohan Reddy, learned Senior counsel assisted by Sri
C.Sumon, learned counsel for the respondent No.3 submitted that the copy of
IA.Sr.No.9938 of 2018 was not served and in the absence of service, neither it
could be said that I.A.Sr.No.9938 of 2018 was for recall of the order dated
23.03.2018 nor that there was any sufficient cause for recall. He submitted
that the appellants/applicants have also not brought on record the copy of
IA.Sr.No.9938 of 2018 neither along with I.A.Nos.1 & 2 of 2022 nor otherwise.
He further submitted that there was nothing on record to indicate the efforts
the appellants made in prosecuting I.A.Sr.No.9938 of 2018. So there was no
due diligence. The applicants/appellants remained negligent. Had the
appellants been vigilant fresh application could have been filed immediately
and not after almost four years. The appellants/applicants never made efforts
to get IA.Sr.No.9938 of 2018 numbered. They did not comply with the
1
2024 SCC OnLine SC 1878
2
(2023) 10 SCC 531
10
objections of the Registry and that’s why it was not given regular number. He
added that if at all the I.A.Sr.No.9938 of 2018 had not been traced out, the
appellants should have at least furnished copy thereof to the Registry and
should have pursued the listing of the same. Fresh application on the pretext
that the earlier I.A.Sr.No.9938 of 2018 had not been traced, should not be
maintainable. If a litigant is not diligent, the application for condonation of
delay deserved not to be allowed. He further submitted that in the meantime
3rd party rights had been created in favour of different person and if the delay
was condoned and order of dismissal was recalled, restoring the appeal, that
would cause prejudice to the respondents as also the third parties rights.
18. Sri C.V.Mohan Reddy, learned senior counsel further submitted that the
appeal was also not prosecuted by the appellants from 20.12.2017 to
23.03.2018, during which period it was listed on 5 different occasions.
Consequently, recording the reasons, the appeal was dismissed on
23.03.2018 for non prosecution.
19. Sri C.V.Mohan Reddy, learned senior counsel further submitted that in
O.S.No.32 of 2000, the respondents filed I.A.No.2012 of 2005 for appointment
of advocate commissioner to divide the suit schedule property into two equal
shares by metes and bounds. The Trial Court by order dated 24.03.2017
appointed an advocate commissioner to survey the suit schedule property and
divide it into two equal shares. The advocate commissioner initially fixed the
date for survey as 29.09.2018 after issuing notices to all concerned however
the survey was initially postponed, but finally it was conducted on 28.04.2021.
11
The appellants despite receiving notice were not present in the survey. The
advocate commissioner filed his report before the Court on 28.11.2021 and in
the month of April, 2022, the appellants filed I.A.Nos.1 & 2 of 2022 and
thereafter in the month of May, 2022, they filed their objections to the report of
advocate commissioner. He submitted that the facts indicate the dilatory
tactics being adopted by the appellants and the lack of due diligence on their
part. He thus requested to dismiss the applications i.e., I.A.Nos.1 & 2 of 2022.
20. Sri C.V.Mohan Reddy, learned senior counsel placed reliance in
M/s.Uttam Rice Mill, Dhamtari v. M/s. Ashok Construction company3.
21. Sri Vinay Navare, learned senior counsel appearing for respondent
Nos.1 to 3, submitted that the conduct of the appellants was to disentitle them
for condonation of delay. He submitted that in para-6 of the counter affidavit of
Respondent Nos.1 to 3 a specific stand was taken that the copy of
IASr.No.9938 of 2018 was not served and supplied to which there was no
reply in the rejoinder affidavit. So, it stood admitted that the copy of IASR was
not served. He submitted that the rights of 3rd parties based on the preliminary
decree could not be taken away lightly after such a long time.
22. Sri Vinay Navare, learned senior counsel placed reliance in
EshaBhattacharjee v. Managing committee of RaghunathpurNafar
Academy4 and Sanjeev Babbar v. Dev Papers pvt.ltd5.
3
@SLP(CIVIL) No.25511 of 2024
4
(2013) 12 SCC 649
5
1998 SCC OnLine P & H 254
12
23. Sri Ch.Srinivas, learned counsel for the proposed respondent Nos.4 to
13 advanced the same arguments to oppose I.A.No.1 & 2 of 2022. He
however further submitted that it could not be said as to what was the ground
taken for recall of the order of dismissal of appeal and whether that was a
sufficient ground. He submitted that in I.A.Nos.1 & 2 of 2022, the appellants
did not state any cause for recall. Consequently in view of Order 9 Rule 9
CPC, the order deserved not to be set aside/ recalled. The applications
I.A.Nos.1 & 2 of 2022 deserved dismissal.
24. Learned counsel for the proposed respondent Nos.4 to 13 placed
reliance in H Guruswamy v. A Krishnaiah6 .
25. We have considered the aforesaid submissions of the learned counsels
for the parties and perused the material on record.
I.A.No.1 of 2022
26. From perusal of the applications and affidavits on record as referred to
above as also the submissions advanced, it is not in dispute that
I.A.Sr.No.9938 of 2018 was filed in the erstwhile High Court of Andhra
Pradesh and at that time the process of bifurcation of the State was going on.
The appellants/applicants filed the application/letter before the
Registrar(Judicial) of Telangana High Court as also before the High Court of
Andhra Pradesh with respect to the I.A.Sr.No.9938 of 2018 as also the
6
2025 INSC 53
13
appeal. When the IA.Sr.No.9938 of 2018 could not be traced, I.A.Nos.1 & 2 of
2022 were filed.
27. The submissions advanced by the learned counsels for the respondents
as also the proposed respondents are that the copy of IA.Sr.No.9938 of 2018
was not served on the respondents. The copy thereof has also not been filed
along with I.A.Nos.1 & 2 of 2022. So, it could not be said if I.A.Sr.No.9938 of
2018 was for recall of the order dated 23.03.2018 or what was the ground
stated and if any such ground was sufficient to recall the order dated
23.03.2018. The appellants were said to be not diligent in prosecuting the
I.A.Sr.No.9938 of 2018 and therefore, the delay deserved not to be condoned.
There was lack of bonafides. In the meantime also, the third party rights have
been created treating the preliminary decree as binding. Those rights acquired
by the third parties could not be taken away. The conduct of the appellants in
not serving the copy of IA.Sr.No.9938 of 2018 nor filing copy thereof in the
present appeal and delaying procedure adopted has also been argued to
reject the applications.
28. We are of the view that IASr.No.9938 of 2018 would certainly be an
application for recall of the order dated 23.03.2018. There could not be any
other application by the appellants in an appeal dismissed in default. Filing of
I.A.Sr.No.9938 of 2018 is established. I.A.Sr.No.9938 of 2018 was filed on
13.04.2018 i.e., within a period of limitation of 30 days from the date of
dismissal of appeal in default. Since I.A.Sr.No.9938 of 2018 was not on
record, may be for the reason as stated, due to the proceedings for bifurcation
14
of the State, I.A.No. 2 of 2022 was filed in this Court. If I.A.Sr.No.9938 of 2018
had been on record, there would have been no need to file I.A.Nos.1 & 2 of
2022. We are of the view that under the circumstances, I.A.No.1 of 2022 for
condonation of delay of1474 days in filing I.A.No.2 of 2022 deserves to be
allowed and the delay deserves to be condoned.
29. In Esha Bhattacharjee (supra) the principles applicable to an
application for condonation of delay were summarized in para 21, which reads
as under:
“21. From the aforesaid authorities the principles that can broadly be
culled out are:
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 de-
lay but, gross negligence on the part of the counsel or litigant is to be
taken note of.
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 re-
quired to be vigilant so that in the ultimate eventuate there is no real fail-
ure of justice.
15
21.7. (vii) The concept of liberal approach has to encapsule the concep-
tion 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 at-
tracted whereas to the latter it may not be attracted. That apart, the first
one warrants strict approach whereas the second calls for a liberal delin-
eation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its in-
action 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 prin-
ciple 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.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, mi-
srepresentation or interpolation by taking recourse to the technicalities of
law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinized and
the approach should be based on the paradigm of judicial discretion
which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collec-
tive cause should be given some acceptable latitude.”
30. Sri Vinay Navare, learned senior counsel emphasised at para-21.9 of
Esha Bhattacharjee (supra) to contend that the conduct, behavior 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. Emphasis was also laid in para 21.10 to contend that if the
16
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.
31. There cannot be any dispute on the legal proposition with respect to the
factors to be considered. In adopting liberal approach, the provisions of
limitation Act can certainly not be given a go by. The conduct, behavior and
the attitude of the applicant become relevant factors. Here, IA.Sr.No.9938 of
2018 was filed within the period of limitation. The alleged conduct, behavior
etc., of the appellants as argued that, they did not prosecute diligently
IA.Sr.No.9938 of 2018, nor filed fresh application at the earliest, in our view
cannot, in the factual background of the bifurcation of the State being under
process, I.A.Sr.No.9938 of 2018 not being traced and delay in transfer of file
to the State of Andhra Pradesh cannot be so relevant factors to deny
condonation of delay as prayed in I.A.No.1 of 2022. The circumstances, on
which there is no dispute, cannot be taken as the conduct, behavior or attitude
of the appellants so as to attract clauses 21.9 and 21.10 of Esha
Bhattacharjee (supra). If IA.Sr.No.9938 of 2018 had not been filed within the
period of limitation the position might have been different.
32. In Sanjeev Babbar (supra), the revision petition was barred by time.
Only some papers were filed, without any grounds in revision petition. The
requisite Court fee was also not levied. It was in those facts, the Court
observed that the revision petitioner was most negligent and irresponsible in
pursuing his remedy. The Punjab and Haryana High Court held that when a
17
petition becomes barred by time, a right accrues to the other party and such a
right cannot be taken away by the Court merely on an application which lacks
bona fides and does not disclose any sufficient cause for condonation of
delay. The judgment of the Hon’ble Apex Court in P.K.Ramachandran v. State
of Kerala 1997 (8) SC 189 was referred therein, in which it was held that the
law of limitation may harshly affect a particular party but it has to be applied
with all its rigour when the statute so prescribes and the Courts have no power
to extend the period of limitation on equitable grounds.
33. There is no dispute on the legal proposition. But, in the present case in
the presence of IA.Sr.9938 of 2018, which was filed in time, there is no
question of condonation of the delay on any equitable ground. The filing of
IA.Sr.No.9938 of 2018 being in time, the I.A.No.1 of 2022 now filed for
condonation of delay as IA.Sr.No.9938 of 2018 could not be placed on record,
cannot be rejected. So far as, the accrual of right to the proposed
respondents/transferees is concerned, that is always subject to the doctrine of
lis pendens. We are not entering into the question if a transfer made during
pendency of an application for recall of dismissal in default order of appeal
against preliminary decree, and when the proceedings for final decree are
pending, would attract lis pendens or not, as we are of the view that
I.A.Sr.No.9938 of 2018 having been filed in time, there was no question of
condonation of delay but, which arose as I.A.Sr.No.9938 of 2018 is not on
record and consequently, I.A.No.1 of 2022 had to be filed seeking
18
condonation of delay in filing fresh application I.A.No.2 of 2022 to set aside
the dismissal order.
34. In M/s.Uttam Rice Mill (supra), the suit was decreed by the Trial Court
on 26.08.2002. The execution petition was filed after a decade on 26.09.2012.
The execution proceedings were adjourned from time to time and finally on
19.04.2018, the execution application was dismissed for non-compliance of
the order of the Executing Court in payment of process fee and furnishing a
list of movable property for attachment. The decree holder had not complied
with the directions of the Execution Court and after about one year of
dismissal in default, the decree holder preferred an application under Order 21
Rule 106 seeking restoration of execution proceedings along with an
application under Section 5 of Limitation Act seeking condonation of delay,
which was rejected on 04.10.2019. The High Court had set aside those orders
and restored execution case. Taking into account that conduct of the decree
holder, the order of High Court was set aside by the Hon’ble Supreme Court
observing that the decree holder for the reason of his own negligence and
lackadaisical approach allowed his cause to suffer and his inaction was not
condonable. It was held that a litigant who is not vigilant and prompt towards
his cause must not be allowed to claim equity before a Court of law. There is
no dispute on the principle of law but it cannot be applied in the present case
to deny condonation of delay for the same above considered reasons.
19
I.A.No.2 of 2022
35. So far as I.A.No.2 of 2022 to set aside the dismissal in default of appeal
is concerned, it requires to be considered if there was sufficient cause for the
absence on 23.03.2018 when the appeal was dismissed in default.
36. In this regard, Order 9 Rule 9 of Code of Civil Procedure, 1976 (in short
“CPC“) reads as under:
9.Decree against plaintiff by default bars fresh suit –
(1) where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be
precluded from bringing a fresh suit in respect of the same cause of action.
But he may apply for an order to set the dismissal aside and if he satisfies the
Court that there was sufficient cause for his non-appearance when the suit
was called on for hearing, the Court shall make an order setting aside the
dismissal upon such terms as to costs or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has
been served on the opposite party.”
37. The law is settled that under Order 9 Rule 9 CPC in a case for setting
aside the dismissal in default, if the cause shown is sufficient, the application
would be allowed. The appellant has to establish the sufficient cause for his
non-appearance on the date of dismissal of the appeal in default. If there is no
sufficient cause established, the application cannot be allowed.
38. In G.P.Srivastava v. R.K.Raizada 7, which was a case arising under
Order 9 Rule 13 CPC, to set aside an ex-parte decree, the Hon’ble Apex
7
(2000) 3 SCC 54
20
Court held that unless “sufficient cause” was shown for non-appearance of the
defendant in the case on the date of hearing, the Court has no power to set
aside an ex-parte decree. The Hon’ble Apex Court further observed that if
“sufficient cause” is made out for non-appearance of the defendant on the
date fixed for hearing when ex-parte proceedings were initiated against him,
he cannot be penalised for his previous negligence which had been
overlooked and thereby condoned earlier.
39. Para-7 in G.P.Srivastava (supra) reads as under:
7. Under Order 9 Rule 13 CPC an ex-parte decree passed against a
defendant can be set aside upon satisfaction of the Court that either the
summons were not duly served upon the defendant or he was prevented by any
‘sufficient cause’ from appearing when the suit was called on for hearing.
Unless ‘sufficient cause’ is shown for non-appearance of the defendant in
the case on the date of hearing, the Court has no power to set aside an ex-
parte decree. The words “was prevented by any sufficient cause from
appearing” must be liberally construed to enable the court to do complete justice
between the parties particularly when no negligence or inaction is imputable to
erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be
construed as elastic expression for which no hard and fast guidelines can be
prescribed. The courts have wide discretion in deciding the sufficient cause
keeping in view the peculiar facts and circumstances of each case. The
‘sufficient cause’ for non appearance refers to the date on which the absence
was made a ground for proceeding ex-parte and cannot be stretched to rely
upon other circumstances anterior in time. If ‘sufficient cause’ is made out for
non appearance of the defendant on the date fixed for hearing when ex-
parte proceedings initiated against him, he cannot be penalised for his
previous negligence which had been overlooked and thereby condoned
earlier. In a case where defendant approaches the Court immediately and within
the statutory time specified, the discretion is normally exercised in his favour,
provided the absence was not malafide or intentional. For the absence of a party
21
in the case the other side can be compensated by adequate costs and the lis
decided on merits.
40. The aforesaid principle with respect to the existence of sufficient case to
set aside the ex-parte decree is fully applicable to a case under Order 9 Rule
9 CPC as well for use of the same expression “if he satisfies the Court that
there was sufficient cause for his non-appearance”.
41. In Sheo Raj Singh (supra) the Hon’ble Apex Court held that
sometimes, due to want of sufficient cause being shown or an acceptable
explanation being proffered, delay of the shortest range may not be condoned
whereas, in certain other cases delay of long periods can be condoned if the
explanation is satisfactory and acceptable. The Hon’ble Apex Court reiterated
that condonation of delay being a discretionary power available to courts,
exercise of discretion must necessarily depend upon the sufficiency of the
cause shown and the degree of acceptability of the explanation, the length of
delay being immaterial. Sometimes, due to want of sufficient cause being
shown or an acceptable explanation being proffered, delay of the shortest
range may not be condoned whereas, in certain other cases, delay of long
periods can be condoned if the explanation is satisfactory and acceptable.
42. In Mool Chandra (supra) it was reiterated that it is not the length of
delay that would be required to be considered while examining the plea for
condonation of delay but it is the cause for delay which has been propounded
will have to be examined. If the cause for delay would fall within the four
corners of “sufficient cause”, irrespective of the length of delay same would
22
deserve to be condoned. However, if the cause shown is insufficient,
irrespective of the period of delay, same would not be condoned.
43. Para No.20 of Mool Chandra (supra) reads as under:
20. Be that as it may. On account of liberty having been granted to the appellant
to pursue his remedy in accordance with law, yet another O.A. No.2066 of 2020
along with an application for condonation of delay came to be filed. The delay
was not condoned by the Tribunal on the ground that it was filed more than one
year after the impugned order came to be passed. No litigant stands to benefit in
approaching the courts belatedly. It is not the length of delay that would be
required to be considered while examining the plea for condonation of delay, it
is the cause for delay which has been propounded will have to be
examined. If the cause for delay would fall within the four corners of
“sufficient cause”, irrespective of the length of delay same deserves to be
condoned. However, if the cause shown is insufficient, irrespective of the
period of delay, same would not be condoned.”
44. In H Guruswamy v. A Krishnaiah8 the Hon’ble Apex Court held that
the length of the delay is definitely a relevant matter which the court must take
into consideration while considering whether the delay should be condoned or
not and further that once it is held that a party has lost his right to have the
matter considered on merits because of his own inaction for a long, it cannot
be presumed to be non-deliberate delay and in such circumstances of the
case, he cannot be heard to plead that the substantial justice deserves to be
preferred as against the technical considerations. While considering the plea
for condonation of delay, the court must not start with the merits of the main
matter. The court owes a duty to first ascertain the bona fides of the
explanation offered by the party seeking condonation. It is only if the sufficient
8
2025 INSC 53
23
cause assigned by the litigant and the opposition of the other side is equally
balanced that the court may bring into aid the merits of the matter for the
purpose of condoning the delay.
45. We therefore proceed to consider whether any sufficient cause for the
absence of the appellants on the date of dismissal of the appeal in default has
been made out so as to allow I.A.No.2 of 2022.
46. A perusal of I.A.No.2 of 2022 shows that any cause has not been stated
neither in the application nor in the affidavit. Learned counsel for the
appellants was specifically asked to point out the paragraph mentioning the
cause for absence on the date the appeal was dismissed. He could not point
out and submitted that any cause for absence has not been mentioned. The
copy of IA.Sr.No.9938 of 2018 has also not been brought on record. So, we
are not in a position to see what was the cause stated therein for the absence
on the date of dismissal of appeal and as to whether such cause was
sufficient or not, to recall the order. We cannot presume that any cause was
stated in I.A.Sr.No.9938 of 2018 or even if stated, in the absence of any such
cause either reiterated in I.A.No.2 of 2022 or even stated for the first time, we
cannot presume the existence of any sufficient cause to recall the order dated
23.03.2018. So, I.A.No.2 of 2022 for setting aside the order dated 23.03.2018
and for restoration of the appeal deserves rejection for the reason that there is
no cause shown much less sufficient cause to recall the order of dismissal of
appeal in default. Previous I.A.Sr.No.9938 of 2018 has not been brought on
record so as to show that any sufficient cause for non appearance, on the
24
date the appeal was dismissed, was stated in that application and in I.A.No.2
of 2022 no cause has been stated for recall of the order.
47. In the result:
A) I.A.No.1 of 2022 is allowed condoning the delay in filing
I.A.No.2 of 2022.
B) I.A.No.2 of 2022 for recall of the order dated 23.03.2018 is
rejected.
C) Since the order dated 23.03.2008 is not recalled and the
appeal is not restored, I.A.Nos.2 of 2024 and 1 of 2025 for
impleadment in appeal need no consideration. I.A.Nos.2 of 2024 and
1 of 2025 stand closed.
As a sequel thereto, other miscellaneous petitions, if any pending, shall
also stand closed.
____________________
RAVI NATH TILHARI,J
______________________________
MAHESWARA RAO KUNCHEAM,J
Dated:31.07.2025
Note: L.R. copy be marked
B/o.
AG
25
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
I.A.Nos.1, 2 of 2022, 2 of 2024 & 1 of 2025
in
APPEAL SUIT NO: 594/2005
Dated: 31.07.2025
Note: L.R. copy be marked
B/o.
AG