Analysis of Supreme Court Judgment in Bhivchandra Shankar More vs. Balu Gangaram More & Ors.

Time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as “sufficient cause” for condoning the delay in filing the first appeal.

A conjoint reading of Order IX Rule 13 CPC and Section 96(2) CPC indicates that the defendant who suffered an ex-parte decree has two remedies:- (i) either to file an application under Order IX Rule 13 CPC to set aside the ex-parte decree to satisfy the court that summons were not duly served or those served, he was prevented by “sufficient cause” from appearing in the court when the suit was called for hearing; (ii) to file a regular appeal from the original decree to the first appellate court and challenge the ex-parte decree on merits.

It is a 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 could be imputable to the appellant.

In the facts and circumstances of the present case, the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as “sufficient cause” for condoning the delay in filing the first appeal. The impugned judgment of the High Court cannot be sustained and is liable to be set aside.

Judgement link : https://www.sci.gov.in/supremecourt/2014/31643/31643_2014_Judgement_07-May-2019.pdf