John Simon vs Mohamed Kunjuu, T.M.

K.T. Sankaran, J.—The Appellant was set ex parte in the suit filed by the Respondent for realisation of money and an ex parte decree was passed on 10-6-2004. On 8-7-2004, the Appellant filed an application to set aside the ex parte decree. But the application was filed under Order IX, Rule 9 of the CPC instead of Order IX, Rule 13. The Court below dismissed the application mainly on two grounds: (1) Though the application is filed within the period of limitation, the Appellant has not explained the reason why he did not file the application before 8-7-2004. (2) The application is filed quoting a wrong provision of law.

Article 123 of the Limitation Act provides a period of limitation of thirty days to make an application to set aside a decree passed ex parte. The time begins to run from the date of decree or where summons or notice was not duly served, when the applicant had knowledge of the decree. In the case on hand, time begins to run from 9-6-2004, the date of decree. The application was filed within the period of limitation provided under Article 123 of the Limitation Act. Rule 13 of Order IX of the CPC provides that in any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it aside. The applicant has to satisfy the Court that he was prevented by sufficient cause from appearing when the suit was called on for hearing. If an application is filed within time, there is no question of any condonation of delay u/s 5 of the Limitation Act. The applicant need explain the delay only if the application is not filed within the prescribed period of limitation. He is not bound under law to explain the delay in making the application, if the application is filed within time. Of course, the Court can also consider as to why the application was not filed promptly, depending upon the facts and circumstances of each case, to arrive at a conclusion as to whether the case put forward by the applicant that he was prevented by sufficient cause from appearing before Court is true or not. Only for that purpose, the Court could take into account the fact that the application was filed not immediately after the ex parte decree was passed but on the last date or immediately before the expiry of the period of limitation. An application under Order IX, Rule 13 cannot be dismissed on the ground that the applicant had not explained the delay from the date on which he recovered from his illness to the date of filing of the application, if the application under Order IX, Rule 13 was filed within the period of limitation prescribed under Article 123 of the Limitation Act. The view taken by the Court below that the Appellant was bound to explain the delay is, therefore, erroneous, illegal and unsustainable. In G.P. Srivastava Vs. Shri R.K. Raizada and Others, the Supreme Court has held that the words "was prevented by sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties. It was held: "In a case where the 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."

It is well-settled that quoting a wrong provision of law is not a ground for rejecting the prayer in an application. [See Asher v. Raru 1979 KLT 260; Thankamma v. Vaikom Town Juma Masjid Mahal Sangham 1987 (2) KLT 780; Shaji Varghese v. Cherian 1993 (1) KLT 133; New Model Bank Ltd. (in liquidation) v. P.A. Thomas 1959 KLT 1237 and Kunhikayyumma and Another Vs. Union of India (UOI) and Others, The Appellant has filed the application under Rule 9 of Order IX of the Code of Civil Procedure. The Appellant was the Defendant in the suit. Evidently, Rule 9 of Order IX does not apply. Only Rule 13 of Order IX applies. Simply because a wrong provision of law was quoted, the Court below was not justified in dismissing the application on that ground.

For the aforesaid reasons, the order passed by the Court below is liable to be set aside. It has come out in evidence that an ex parte decree was passed against the Appellant on an earlier occasion and it was set aside on his application. Though strictly speaking it may not be relevant in considering the application under Order IX, Rule 13 on the merits, certainly it could be a relevant factor in awarding costs. Taking into account the facts and circumstances of the case, we are of the view that the Appellant should be directed to pay costs of Rs. 1,000 to the Respondent within aperiod of one month from today as a condition for setting aside the ex parte decree. If the Appellant fails to pay the costs, the order impugned will remain in force and the F.A.O. will stand dismissed with costs. The Appeal is allowed as above.

*A reproduction from ILR (Kerala Series).