Court emphasizes litigant should not suffer for counsel's mistake; delay condoned subject to costs and matter remanded for merit-based hearing
In a significant judgment delivered on October 8, 2026, the Madhya Pradesh High Court at Indore, presided over by Mr. Justice Vinay Saraf, took a progressive stance on the issue of delay in filing applications under Order IX Rule 13 of the Code of Civil Procedure (CPC) for setting aside ex parte decrees. The Court held that a litigant should not suffer for the mistakes or negligence of his legal counsel and that the length of the delay is not decisive; what matters is the acceptability of the explanation provided.
The case in question arose from a suit for specific performance and perpetual injunction filed by Dharam Developers and Finvest Limited against Deepak Afle. After the defendant failed to appear despite notice publication, the trial court passed an ex parte decree in favor of the plaintiff. The defendant, upon receiving notice in the execution proceedings in November 2019, learned for the first time about the ex parte decree. He engaged a lawyer who appeared on his behalf but failed to advise him to file an application under Order IX Rule 13 CPC to set aside the decree. Only after his first lawyer permanently shifted to Kerala in July 2022 did the defendant consult another lawyer, who advised him to file the application. Consequently, an application was filed on November 17, 2022, with a delay of 1093 days.
The defendant also filed an application under Section 5 of the Limitation Act, 1963, seeking condonation of this delay. However, the trial court and the appellate court dismissed the application on the ground of gross negligence and lack of bonafide, relying on Supreme Court precedent that unexplained or insufficient reasons for delay cannot be condoned.
On further revision, the High Court re-examined the case and emphasized several important legal principles:
1. Reliance on Legal Advice: A litigant is generally dependent on his lawyer's advice. If the lawyer fails to advise or commits a mistake, the litigant should not be penalized for this error. The Court underscored that the defendant's failure to file the application promptly was due to the lawyer's oversight.
2. Acceptability of Explanation Over Length of Delay: The Court referred to established jurisprudence clarifying that the length of delay is not decisive. A short delay may be rejected if the explanation is not satisfactory, while a long delay may be condoned if the explanation is acceptable.
3. Covid-19 Limitation Exclusion: The Court took judicial notice of the Supreme Court's directions in Suo Moto Writ Petition (Civil) No. 3/2020 (In Re: Cognizance for Extension of Limitation), which excluded the period from March 15, 2020, to March 28, 2022, from the computation of limitation. This effectively reduced the actual delay period in this matter.
4. Revisional Jurisdiction: Although superior courts normally do not interfere with concurrent findings on the sufficiency of cause for delay, they can re-examine the cause if the refusal to condone delay is arbitrary, untenable, or results in denial of remedy.
5. Remedy Should Not Be Denied Solely on Technical Grounds: The Court held that refusal to condone delay in such circumstances results in the denial of remedy and causes irreparable loss to the defendant.
Consequently, the High Court set aside the trial and appellate court orders rejecting the condonation of delay and allowed the application under Section 5 of the Limitation Act. The delay of 1093 days was condoned subject to payment of costs of Rs. 50,000 to the plaintiff. The matter was remanded to the trial court for fresh consideration of the application under Order IX Rule 13 CPC on merits, uninfluenced by the observations made during the delay condonation proceedings.
This judgment reinforces the principle that procedural technicalities should not defeat substantive justice, especially when the delay arises from reliance on legal advice. It also highlights the continuing impact of Covid-19 related limitation relief on civil litigation timelines.
Bottom Line:
Limitation Act, 1963 Section 5 Delay in filing application under Order IX Rule 13 CPC for setting aside ex parte decree - Litigant should not ordinarily suffer for mistake or wrong legal advice of counsel - Length of delay is not decisive; acceptability of explanation is material - Covid limitation exclusion period also relevant - Delay of 1093 days condoned on costs and matter remanded for decision of Order IX Rule 13 application on merits.
Statutory provision(s):
Limitation Act, 1963 Section 5; Code of Civil Procedure, 1908 Order IX Rule 13, Order XLIII Rule 1(d)
