Download Civil Procedure & Limitation Act-I (80) Sem V-51123 and more Study notes Civil Law in PDF only on Docsity!
Q. Explain the object and conditions of doctrine of res-subjudice
Q. Write a detailed note on doctrine of res-judicata under CPC
Q. Explain doctrine of Res-subjudice& Res-judicata. Write the difference between
them.
A. Introduction:
One of the Yardsticks of Assessing the Functioning of the courts is to assess the ‘Judicial Efficiency’. The Judicial Efficiency is not only dependent on the working of the judges and the courts, rather it depends more on the right implementation of the ‘common law rules’ and doctrines, which are there to increase the pace of getting the justice in the court, i.e., increasing the judicial Efficiency. Two of Such Doctrines are:- Doctrine of Res Sub judice and Res Judicata.
Res Sub Judice
Subjudice in Latin means ‘under judgment’. It denotes that a matter or case is being considered by court or judge. When two or more cases are filed between the same parties on the same subject matter, the competent court has power to stay proceedings. However, the doctrine of res sub judice means stay of suit. The Civil Procedure Code provides rules for the civil court in respect of the doctrine of res sub judice. This rule applies to trial of a suit not the institution thereof.
The doctrine of res sub judice aims to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations with respect to the same cause of action, same subject matter and same relief claimed.
Section 10 of the Civil Procedure Code, 1908 embodies the doctrine in these words:-
“No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed. Explanation: The pendency of a suit in a Foreign Court doesn’t preclude the Courts in India from, trying a suit founded on the same cause of action.”
Thus it provides that, civil court should not proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties and the court before which the previously instituted suit is pending is competent to grant
the relief sought ( Indian Bank v. Maharashtra State Cop. Marketing Federation Ltd., AIR 1998 SC 1952).
The OBJECT of the section is to protect a person from a multiplicity of proceedings and to avoid a
conflict of decisions. It also protects the litigant people from unnecessary harassment ( SPA
Annamalay Chetty v. BA Thornlill, AIR 1931 PC 263).
CONDITIONS to be complied with before the application of the principle:
- (^) There must be two suits one previously instituted and the other subsequently instituted.
- The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
- (^) Both the suits must be between the same parties or their representatives.
- The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in Bangladesh or in any court beyond the limits of Bangladesh established or continued by the Government or before the Supreme Court.
- The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.
- Such parties must be litigating under the same title in both the suits.
If these conditions are fulfilled, the subsequent suit must be stayed by the court where it is pending. It must be remembered that the institution of the subsequent suit is not ‘barred’ but its ‘trial’ only. The final decision of the former suit shall operate as res judicata in the subsequent suit.
This Doctrine cannot be applied when the point at issues are distinct and different ( Alimallah v.
Sheikh, 43 DL RLL 3), or even where there are some issues in common and others are different
issues ( Abdur v. Asrafun, 37 DLR 271). It is also not applicable between the suits where although
the parties are same, the issues are not the same ( Manzar v. Rema, 33 DRL 49).
The Effect of the doctrine is that the court may direct to stay the subsequent proceeding. But the Court also can exercise INHERENT POWER TO STAY. It provides that, although the provision of Section 10 is mandatory, this provision has not taken away the court’s inherent power under Section 151 so as to stay the proceedings on the facts and circumstances of a given case to secure the ends of justice where section 10 is not applicable. Therefore, the court may use its inherent power to secure the ends of justice when section 10 is not applicable, even to prevent abuse of process of the court, the court may stay ‘former suit’ too, by applying its inherent power ( Ram v.
Devidayal, AIR 1954 Bom. 176). There is no bar on the power of an Indian Court to try a
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”. Explanation I- The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II. – For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III. – The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV. – Any matter which might and ought to have been made the ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V. – Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”
The principle does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if the matter in the suit was ‘directly’ and ‘substantially’ in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised.
The OBJECT of the principle rests on public policy as well as private justice. Section 11, CPC aims to prevent a multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, decided and became final so that parties are not vexed twice over. The doctrine of res judicata is not merely a matter of procedure but a doctrine evolved by the Courts in the larger public interest. Section 11 merely recognizes the said doctrine which is basically based on public policy ( Standard Chartered Bank v. Andhra Bank Financial Services Ltd. & Ors., (2006) 6 SCC
94).
The SCOPE of the principle of res-judicata is defined in the judgment of Satyadhan Ghosal &
Ors. V. Smt. Deorajin Debi & Anr., AIR 1960 SC 941. The Supreme Court held that “The
Principle of Res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter – whether on a question of fact or question of law – has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies; Neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in s. 11 of the Code of the Civil Procedure: but even where s.11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court, as well as any higher court, must in any future litigation proceed on the basis that the previous decision was correct.”
The Doctrine applies to give finality to “lis” (suit) in original or appellate proceedings. The issue once decided should not be allowed to be reopened and re-agitated twice over. The literal meaning of “res” is “everything that may form an object of rights and includes an object, subject-matter or status” and “res judicata” literally means “a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments.” ( Escorts Farms Ltd. v. Commissioner,
Kumaon Division, Nainital, UP & Ors., (2004) 4 SCC 281).
It also applies to all quasi-judicial proceedings of the tribunals other than the civil courts. ( Sulochna Amma v. Narayan Nair, JT 1993 (5) SC 450)
The Applicability of the Principle in ‘Writ Petitions’ is decided by the court in Amalgamated
Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013, by holding that, “The general principle of res judicata applies to writ petitions filed under Article 32 and
- It is necessary to emphasize that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights
- The matter should be heard and finally decided. If an opinion is expressed on issues not material to the decision, then res judicata will not apply. (Matter be heard on merits and dismissal on grounds of procedural infirmities will not attract the application of ‘res judicata’).
The TEST to decide whether a matter was directly and substantially in issue in the earlier proceedings is to see if it was necessary for that issue to be decided in order for an adjudication upon the principal issue. However, every single issue framed is not a matter which is directly and substantially in issue. Thus, is becomes imperative to examine the plaint and the written statement to arrive at a conclusion as to which issues were directly and substantially in issue and which ones were merely incidentally or collaterally in issue. Another manner in which such may be tested is by checking if the decision on such an issue would materially affect the decision of the suit. Where there are findings on several issues or where the court rests its decision on more than one point, the findings on all the issues or points will be res judicata. However, no objective test can be laid down to definitively determine which matters are directly and substantially in issue in every case and it depends on the facts and circumstances of each case.
Constructive Res Judicata:-
A matter is actually in issue when it is alleged by one – party and denied by the other. It is constructively in issue when the matter might or ought to have been made a ground of attack or defense in the former suit.
Explanation IV to Section 11 says that any matter which might and ought to have been made a ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
It may, therefore, happen that a matter though not actually in issue directly and substantially may nevertheless be regarded as having been in issue in a suit when the same might and ought to have been made a ground of attack or defense.
The test is whether the parties had an opportunity of controverting it and if they had, the matter will be treated as actually controverted and decided. When the matter is actually in issue the same is heard and decided, but when it is constructively in issue from its very nature it could not be heard and decided, for this was a matter which might and ought to have been made a ground of attack or defense in the suit. An illustration or two will make the point clear.
An issue which ought to have been raised earlier cannot be raised by the party in successive round of litigation. In the case of Tata Industries Ltd. v. Grasim Industries Ltd., (2008) 10 SCC 187, the issue before the Supreme Court was that whether the jurisdiction to appoint the arbitrator u/s 11(6) of Arbitration and Conciliation Act, 1996, could be raised before the Supreme
Court directly. The Supreme Court rejected argument by holding that, ‘Question of locus standi not having been raised before the High Court could not survive in Supreme Court. It amounted to an abandonment of the issue and cannot be raised before the Supreme Court.” The Court applied the Principle of Constructive Res Judicata to question of locus standi, which was directly raised in the Supreme Court and had not been challenged in the High court earlier.
There are certain Exceptions when the principle cannot be applied:-
- If the decree has been obtained by practicing misrepresentation or fraud on the court, or where the proceedings had been taken all together under a special statute.
- Not every finding in the earlier judgment would operate as a res judicata. Only an issue, which is ‘directly’ and ‘substantially’ decided in the earlier suit, would operate as res judicata.
- Where the decision has not been given on merit, it would not operate, in case, the appeal of the judgement and decree of the court below is pending in the appellate court, as then the judgement of the court below cannot be held to be final, and the findings recorded therein would not operate as res judicata.
- When the judgment is non-speaking. ( Union of India v. Pramod Gupta (Dead) by LRs & Ors., (2005) 12 SCC 1).
- Where the matter has not been decided on merit earlier, the doctrine of^ res judicata^ is not applicable ( State of Uttar Pradesh & Anr. v. Jagdish Sharan Agrawal & Ors., (2009) 1 SCC 689).
- (^) It does not apply to criminal cases, where the entire proceedings have been initiated illegally and without jurisdiction. Fatima Bibi Ahmed Patel v. State of Gujarat (2008) 6 SCC 789.
- When a matter involves a pure question of law ( Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54).
- In cases of Dismissal in limine or dismissal on default, the principle of res judicata does not apply. The distinction between “Res Subjudice” and “Res Judicata”.
- Res Subjudice is discussed in s.10, CPC; while Res Judicata is discussed in s. 11, CPC.
- Res Subjudice applies to the proceedings pending in the court, i.e., matters pending judicial inquiry; while Res Judicata applies to matters already adjudicated upon.
(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the court to be made a party to such suit.
(4) No part of the claim in any suit shall be abandoned and no such suit shall be withdrawn and no agreement, compromise or satisfaction shall be recorded in any such suit, unless the court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified in sub- rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation: For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the person on whose behalf, or for whose benefits, they sue or are sued, or defend the suit, as the case may be.
Scope of Order 1, Rule 8—Conditions of its Applicability: It will thus be seen from the above that there are four conditions before the provisions of this rule can apply. They are as under: (1) the parties are numerous—the word ‘numerous’ is by no means a term of art. (2). It implies a group of persons, such as would make it inconvenient to implead all of them individually. The word is not synonymous with “numberless” or “innumberable”. The number must be definite for the court to recognise as non-impleaded parties to the suit; they have the same interest; (3) the necessary permission of the court has been obtained; and (4) notice has been given to all the persons interested in the suit.
Notice not necessary in case of Binding precedent: Supreme Court decision with regard to setting up of shrimp culture industry within prohibited area and in ecology fragile coastal area, was rendered after giving widest publicity. Judgment is binding on all persons even if they were not parties in earlier case. Few persons cannot be allowed to be heard again on the plea that they were unaware of the proceedings. The principle of Order I, Rule 8 is not applicable in case of binding precedent.
Aim and Object of Representative Suits—Protection of large sections of society:
The object of the rule is to afford convenience in suits where there is a community of interest amongst a large number of persons, so that a few should be allowed to represent the whole in order to save trouble and expense. It is designed to save time and expense and to insure a convenient trial of questions in which a large body of persons are interested while avoiding multiplicity of suits and harassment to parties.
The object for which this provision is enacted is really to facilitate the decision of a question in which large bodies of persons are interested without recourse to the ordinary procedure. In cases where the common right or interest of a community of members of an association or large sections is involved there will be insuperable practical difficulty in the institution of suits under the ordinary procedure, where each individual has to maintain an action by a separate suit.
Res judicata and Representative Suit: A decree passed in a representative suit operates as res judicata in a subsequent suit against such interested persons although they may not have been added as parties to the suit. Explanation VI to section 11 provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Permission of Court Mandatory: The suit might have been instituted by representatives of a particular community, but that by itself was not sufficient to constitute the suit as a representative suit. For a representative suit, the court’s permission under Order I, Rule 8, C.RC. is mandatory.
It may be stated that any member of a community may successfully bring a suit to assert his right to the community property or for protecting such property by seeking removal of encroachments there from. Such a suit need not comply with the requirements of Order I, Rule 8. The suit against alleged trespass even if it was not a representative suit on behalf of the community would be a suit of this category.
Order I, Rule 8—Not Exhaustive of Representative Suits— Withdrawal: Order I, Rule 8, C.RC. is not exhaustive of representative suits. A representative suit falling within Order I, Rule 8, C.P.C. may not be withdrawn without leave of the court for the suit itself is instituted after notice to all such persons on whose behalf it is instituted and consequently withdrawal could be only after notice to them.
Q. What is set off? What is counter claim? Distinguish between set off and counter
claim?
A.
Set-off The doctrine of set-off is provided by the Order-8, Rule-6, of Civil Procedure Code. Set –off may be defined as the extinction of two person reciprocal debts against each other. Set off happens when both the plaintiff and defendant are debtors as well as creditors against each other. It is a reciprocal recovery of debts of two persons.
For Ex. A files a suit for recovery of money amounting to Rs. 25,000 against B. B says that A took a loan from him , amounting to Rs. 20,000 which is legally recoverable from A by a separate suit. And claims set off of Rs. 20,000 from the claim of A amounting to Rs.25,000. If the claim of set off is proved and if the claim is not barred by the law of limitation or resjudicata , B need not to pay the whole amount of claim of A. Making minus of Rs.20,000 as set off , from the claim of A amounting to Rs. 25,000 , B needs to pay only the rest amount of Rs.5,000 to A. This is called set off.
The following three conditions are necessary to entitle a defendant to claim set off
The suit must be for recovery of money.
The amount claimed for set off must be ascertained sum of money. If the amount is not ascertained then the set off does not lie. The sum of money, claimed for set off must be legally recoverable. Where the plaintiff is not legally bound to pay the money by virtue of the law of limitation or resjudicata, set off does not lie. And the amount of money to be set off must not exceed the pecuniary jurisdiction of court.
Both the plaintiff and defendant must fill in the defendant’s claim to set off the same character as they fill in the plaintiff’s suit.
The money must be recoverable by the defendant or by all the defendants where there are more than one , from the plaintiff or the plaintiffs where there are more than one. Set off may be legal set off or equitable set off.
Counter Claim
Order 8 , Rules 6A to 6G , of the Civil Procedure Code deal with the principle of Counter claims by the defendants.
When a suit is filed by the plaintiff it may happen that the defendant also has any right or claim in respect of a cause of action as against the plaintiff for which he is legally entitled to bring a separate suit. In that event he need not to bring a separate suit against the plaintiff for his cause of action. He may file a plaint for his claim with the written statement in the same suit filed by the plaintiff against him ,without bringing a separate suit. This plaint filed by the defendant with the written statement is called counter claim.
Where any defendant seeks to rely upon any ground as supporting a right of counter claim , he shall, in his written statement , state specifically that he does so by way of a counterclaim. The counter claim can not in any case exceed the pecuniary limit of the Court’s jurisdiction. The plaintiff shall be at liberty to file a written statement in answer to the counter claim .Such counter claim shall have the same effect as a cross suit .The counter claim shall be treated as a plaint and shall be governed by the rules applicable to the plaints.
If the plaintiff contends that the defendant’s claim ought not to be disposed of by way of a counter claim but by an independent suit , the court may , if so satisfied , pass an order to that effect.
Where in any suit counter claim is established and any balance is found due to the plaintiff or the defendant , as the case may be , the court may give judgment to the party entitled to the balance.
The rules relating to the written statement by a defendant shall apply to a written statement filed by the plaintiff in answer to the counter claim.
The court can pronounce a final judgment in that suit , both on the original claim and on the counter claim. If the plaintiff’s original suit is dismissed for default , the counter claim shall alone proceed to the final judgment as an independent suit.
SET-OFF AND COUNTER CLAIM- COMMON FEATURES
- (^) None should exceed the pecuniary limits of the jurisdiction of the court;
- Both are pleaded in the written statement, if the law governing the court permits such plea being raised by the defendant in the written statement;
- The plaintiff is expected to file a written statement in answer to claim for set off or to a counter claim;
it was barred when it was pleaded.
Set-off:
- Set-off is explained in Rule -6 of Order-8 of C.PC.
- Set-off is an old provision, and is existing since the enactment of C.P.C.
- Set-off is of two kinds — (i) Legal Set-off; and (ii) Equitable Set-off.
- Set-off is a statutory defense of the defendant to a plaintiff’s action.5. Set-off must be for an ascertained sum.
- Set-off must arise out of the same transaction.
- In a set-off, the defendant demands in a plaintiff’s suit an amount below or up to the suit claim.
- The amount must be recoverable at the date of the suit.
- Set-off is a ground of defense to the plaintiff’s action, just like a shield.
- Set-off is a right to adjust the claim of the plaintiff against certain right or dues of the person entitled
Counter-claim:
- Counter-claim is explained in Rules from 6-A to 6-G of Order-8.
- Counter-claim is a new provision and the Rules 6-A to 6-G have been inserted in the Civil Procedure Code, 1908 by C.P.C. Amendment Act, 1976.
- Counter-claim has no such classification.
- Counter-claim is substantially a cross-action.
- A Counter-claim can be made for an ascertained sum, or even for an unascertained sum.
- It need not arise out of the same transaction.
- In a counter-claim, the defendant demands for a large amount. The claim for excess amount is really a counter-claim.
- The amount must be recoverable at the date of the written statement.
- Counter-claim is a weapon of offence, just like a sword which enables the defendant to enforce the claim against the plaintiff effectually as an independent action.
- A counter-claim is a claim made by the defendant in excess of the right claimed by the plaintiff.
Q. Explain the doctrine of “Sufficient Cause” under Indian Limitation Act,
Sufficient Cause
Introduction
The code of civil procedure, 1908 (hereinafter referred to as the code) has been able to strike a balance between the rights and duties of plaintiffs and defendants in any civil suit. If the judgment debtor is unable to appeal within the specified time against the decree in a suit, then the decree holder gets a right. The courts should not be blithe so as to tamper with the legal right so acquired. The condonation of delay in filing the appeal is not a matter of right for the aggrieved party. Even if the party is able to sufficient cause, the courts have a discretionary power to condone the delay, but such discretion cannot be arbitrary and whimsical.
However, the expression `sufficient cause' has to be liberally construed to ensure an equilibrium between the rights secured by the decree holder against the injustice of taking away the right of judgment debtor of adjudication on the basis of cause which was reasonably out of his will. However, the cause has to be bona fide.
Generally, after the period of limitation eclipses, the other side gets a legal right which should not be frivolously disturbed. Only when the party can show sufficient cause, then, it is allowed to litigate its case further. The expression “sufficient cause” is flexible enough so as to enable the court to apply the law in a just manner.
The Courts have found it difficult to generally define precisely the meaning of sufficient cause or sufficient reason. Making such an attempt would amount to crystallization into a rigid definition with judicial discretion which the Legislature has for the best of all reasons left undetermined and unfettered.
It is a well settled position of law as enunciated by Supreme Court that while deciding an application under Section 5 of Limitation Act, 1963, a justice oriented approach is required to be adopted.
instantaneously, but a democratic department or bureaucratic authority discusses and debates, considerss and consults, peep through papers and files, till at last it gravitates towards conclusion emergency. Hence in absence of inaction, want of bona fide or negligence in filing the appeal, the delay should be condoned in the larger interest of justice.
The sufficient cause for non filing has to be proved for the period before the expiry of limitation. In Ajit Singh Thakur Singh v. State of Gujarat, the Supreme Court held thus
“..the sufficient cause must establish that because of some event or circumstance arising before limitation expired, it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause.”
Normally, where the applicants have not been grossly negligent or palpably indifferent in prosecuting the case, the delay should be condoned. But if the reasons assigned show absolute carelessness or recklessness, delay cannot be condoned. `Sufficient cause' has to be of the type, which is beyond control of the party invoking the provisions of section 5 of the Limitation Act. An avoidable cause for delay by due care and attention cannot be sufficient cause. Cause attributable to negligence or inaction of the party cannot be sufficient cause. Negligence and laches on the part of the counsel cannot be condoned.
Condonation Of Delay Is Matter Of Discretion Of The Court
Section 5 does not say that such discretion can be exercised only if the delay is within a certain limit. The number of days of delay does not matter, the court has to look whether the aggrieved party is able to reasonably justify the time of delay. Sometimes the delay of shortest range may be unpardonable due to want of acceptable explanation whereas in certain other cases, delay of very long period can be condoned where the explanation thereof is satisfactory.
An order made by the court under section 5 of the Limitation Act condoning the delay without assigning any reasons and particularly without recording the satisfaction of the Court as to the "sufficient cause" cannot be said to be in accordance with law. Such an order is liable to be set aside.
In Inder Singh v. Kanshi Ram, it was held that the true guide for a Court to exercise the discretion under section 5 is to see whether the applicant acted with due and reasonable diligence in prosecuting his case. In Shakuntala Devi Jain v. Kuntal Kumari, the Supreme Court held that unless want of bona fides of any inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. The Court may refuse to condone the delay if it finds that there are no bona fides in the applicant's attempt to show cause for the delay or that the appellant is guilty of either inaction or negligence. General delay can always be condoned but in cases where it is shown that the party
seeking condonation of delay acted with gross negligence in prosecuting his case, the Court has always got the discretion which is vested in it under section 5 to consider the same on its merits.
Sufficient Cause For The Purpose Of Non Appearance Of The Parties
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.
Late arrival of a train is a sufficient ground if otherwise the conduct of the defendant had not been faulty. Similarly, mistake in noting down the date fixed, is also a sufficient ground if the defendant had no mala fide intentions or there is no delaying tactics on his part. Non-appearance due to curfew in the city, (Sohan Lal v. Kedar Nath), is a strong sufficient ground for setting aside the ex parte decree. If more than one counsel are engaged in a case, the Court should not always accommodate on the ground that the counsel is briefed elsewhere (Mahabir v. Sohan Lal).
Sufficient Cause With Regard To Stay Of Execution Of Decree
Mere filing of an appeal would not operate as stay of execution of decree, but the Appellate Court may, for "sufficient cause" order stay of execution of decree. Also, the stay order if any granted takes practical effect only on the communication (Mulraj v. Murti Raghunathji).
All the three aspects indicated in Clause (3) of Order 41, Rule 5 of the Code together with the "sufficient cause" contained in Clause (1) of Order 41, Rule 5, are required to be taken into consideration by the Appellate Court while granting or refusing stay. The necessary aspects have been stated herein below:
(1) Whether there will be substantial loss to the party applying for stay:
(2) Whether the application has been made without unreasonable delay; and
(3) Whether surety has been given by the applicant for due performance of the decree.
The expression "Sufficient" means adequate, enough, as much as may be necessary, equal or fit for end proposed and that which may be necessary to accomplish an object. The object should be to serve public interest and public interest can be served by which methods have to be considered.
The only guiding factor, indicated in the Rule 5 aforesaid, is the existence of sufficient cause in favour of the Appellant on the availability of which the Appellate Court would be inclined to pass
