OSA/163/2023 of G. KARTHIK Vs G. VARADHARAJ @ G.V. RAJ on 16 October 2026

JUDGMENT

(Judgment of the Court was delivered by D.Lingeswaran, J.) This appeal has been filed against the order of the learned Single Judge dismissing the application in A.No.2801 of 2023 to condone the delay of 3895 days in setting aside the ex parte preliminary decree dated 19.07.2012 passed in a partition suit.

2. The learned counsel for the appellant assailed the impugned order on the ground that the counsel engaged by the parties could not be contacted since he was elevated. The learned Single Judge vide the impugned order dated 02.08.2023 has negatived the contention raised by the appellant to condone the delay in setting aside the exparte decree. Challenging the same, the present appeal has been filed.

3. Heard the learned counsel for the appellant and the learned counsel for respondents 1 and 2 and perused the materials placed on record.

4. In view of the submissions above, now the point arise for consideration in this appeal is whether the appellant has shown sufficient cause to condone the huge delay?

5. It has been consistently held by the Hon’ble Supreme Court that the delay should not be condoned as a matter of generosity and the court must consider the reasons for the delay rather than merely its duration. The discretion to condone delay must be exercised judiciously, having regard to the facts and circumstances of each case. In Ramlal vs. Rewa Coal Fields Ltd, reported in AIR 1962 SC 361, the Hon'ble Supreme Court held that once the period of limitation expires, the applicant must satisfy the Court that there was sufficient cause for not preferring the application within the prescribed period. The sufficiency of the cause must be assessed in the light of the facts and circumstances of the case.

6. In the case on hand, which is a partition suit, admittedly, there is no dispute regarding the quantum of the shares. The suit was pending for nearly 6 years, and the preliminary decree was passed in the year 2012. It was only in the year 2023 that the appellants came forward with the application to condone the delay of 3895 days in filing the application to set aside the ex parte decree. The reasons assigned in the affidavit itself indicate that the petitioner was not diligent in pursuing the matter. Merely entrusting the case to an advocate will not absolve a litigant of the responsibility. The appellants cannot simply blame their lawyer for such an inordinate delay. It is for the litigant to remain vigilant and ascertain the status of the case. Having allowed the ex parte decree to remain in force for more than 11 years, the appellants have suddenly come forward with an application, and the allegations made therein indicate that the application has been only to delay the final decree proceedings. Hence, this Court is not satisfied with the reasons assigned. The learned Single Judge has rightly dismissed the application. It is relevant to note that the Hon'ble Supreme Court in the case of Salil Dutta vs T.M. & M.C. Private Ltd., reported in (1993) 2 SCC 186 has held as follows: “8. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engage him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq [(1981) 2 SCC 788 : AIR 19821 SC 1400] must not be understood as an absolute proposition. As we have mentioned hereinabove, this was an on- going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not deposed of before taking up the suit for final hearing they felt piqued and refused to appear before the court. May be, it was part of their delaying tactics as alleged by the plaintiff. May be not. But one thing is clear they chose to non- cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted.” (Emphasis supplied)

7. Under these circumstances, we are of the view that if such reasons are accepted by this Court, there will be no end to civil litigation, and settled matters may be unsettled even after lapse of several years. In view of the foregoing, we do not find any merits in this appeal and this appeal stands dismissed. No costs. Consequently, connected miscellaneous petitions stand closed. (N.S.K.,J.) (D.L.,J.) 16-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No dhk

N.SATHISH KUMAR, J. AND D.LINGESWARAN, J. dhk OSA No. 163 of 2023 16-10-2026