‘Sufficient cause’ in Section 5 of the Limitation Act must be construed liberally so as to uphold right to appeal

Asmita Kuvalekar | Government Law College, Mumbai | 05^th April 2020. 

BHIVCHANDRA SHANKAR MORE V BALU GANGARAM MORE AND ORS (CIVIL APPEAL NO 4669 OF 2019 ARISING OUT OF SLP (CIVIL) NO 28938 OF 2014) 

FACTS OF THE CASE: 

In a suit for partition of property, an ex-parte decree was passed against the appellant. While he sought to set aside the ex-parte decision under Order IX Rule 13 of the Civil Procedure Code, time lapsed and he was thereby obstructed by the Bombay High Court in his regular appeal proceedings. The High Court held that the appellant lost time in pursuing his remedy under Order IX as above and should have simultaneously filed an appeal. Simultaneous remedies when possible should not be turned into consecutive proceedings as that prolongs the effective end of litigation. Thus, the appellant’s delay was not condoned as ‘sufficient cause’ envisaged by Section 5 of the Limitation Act, 1963. 

This judgement elucidates the amplitude of Section 5 while examining the nature of remedies available to a party suffering an ex-parte decree. 

ISSUE: 

1. Whether a rejection of application under Order IX Rule 13 serves as a bar to regular appeal under Section 96 (2) of the Civil Procedure Code? 
2. Whether proceedings under Order IX Rule 13 of the Civil Procedure Code come under the term ‘sufficient cause’ of Section 5, Limitation Act 1963?

JUDGEMENT: 

The Apex Court first laid down the distinctive object and scope of the two remedies in question: one being the setting aside of an ex parte decree and the other being a regular appeal. It explained that the former merely examines the summons procedure along with other extenuating reasons which may have impeded a party from appearing in Court. The latter however is a statutory remedy to an aggrieved party and should not be taken away easily. Thus a bare understanding of the provisions is sufficient to determine that a dismissal of application under Order IX Rule 13 cannot and should not bar the applicant from moving forward with a regular appeal against the original decree, arguing his case on merits. With reference to its judgement in Bhanu Kumar Jain v Archana Kumar and Anr¹, the Court reiterated that a person may be prohibited from arguing the correctness of the decision to settle the case ex-parte but the actual merits of the case should be entertained in an appeal even if the ex-parte decree has not been set aside and the application under Order IX Rule 13 has failed. 

Furthermore, the Court redefined the impugned understanding of the Bombay High Court that simultaneous remedies should not be converted into consecutive proceedings. It underlined that this cannot be a rigid formula that can be blindly applied in similar situations. Facts and circumstances particular to each case must be taken into consideration, especially the character and intention of the appellant. 

If the proceedings are being undertaken separately simply to delay an end, strict construction may be necessary but when the appellant is not engaging in unfair tactics, he must be given the benefit of doubt and the delay should be condoned as ‘sufficient cause’ under Section 5 of the Limitation Act. In its own words, “It is fairly well settled law that “sufficient cause” should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide imputable to the appellant”. 

The Court also clarified that the object of the Limitation Act is not to destroy and take away the rights of parties. It only encourages them to act promptly without undue delay. This being its objective, provisions condoning delay should always be interpreted with a liberal touch rather than a straight-jacket perspective which does more harm than good. Thus, merely the pursuit of relief under Order IX Rule 13 cannot be taken to be undue delay and the statutory right of appeal should not be summarily taken away. The right to appeal must be afforded in all cases unless it is clear to the Court that the party has not been acting in good faith. Thus, Section 5 should be given a wide amplitude that includes proceedings under Order IX Rule 13, irrespective of the result therein. Proceedings under that provision are not wrong proceedings and constitute sufficient cause permitting delay.

Therefore, in the present case, the Court held that the appellant’s situation was worthy of protection under Section 5 of the Limitation Act, 1963. The High Court’s judgement refusing relief to the appellant was set aside. 

1. (2005) 1 SCC 787