The Supreme Court restored an order of the Trial Court rejecting the application for condonation of delay of 1312 days in a property dispute matter after noting that the application to set aside the ex-­parte decree was purely experimental and there was falsity writ large in the submission of the lawyer having misplaced the files.

The Apex Court was considering an appeal challenging the order whereby the High Court allowed the plea of condonation of delay, thereby setting aside the ex-­parte decree on payment of cost of Rs 1 lakh.

The Division Bench comprising Justice Sudhanshu Dhulia and Justice K. Vinod Chandran said, “The application to set aside the ex­parte decree was only an afterthought and purely experimental. The law favours the diligent and not the indolent. We set aside the order of the High Court, thus restoring the order of the Trial Court rejecting the application for condonation of delay.”

Senior Advocate Dama Seshadri Naidu represented the Appellant while Senior Advocate Gopal Shankarnarayanan represented the Respondent.

Factual Background

The first and second defendants jointly owned the scheduled property. The first defendant, who is now deceased and is represented by his legal representatives, executed a power of attorney in favour of the second defendant. The second defendant executed a sale agreement in favour of the plaintiff. The plaintiff, though always willing and ready to discharge his part of the agreement, the second defendant failed so to do and also refused to turn up at the Sub Registrar’s Office where the plaintiff had gone with the balance sale consideration. This resulted in the initiation of the suit for specific performance.

The first defendant, the predecessor­in­interest of the respondents, appeared but did not file a written statement. The second respondent also did not appear, and the Trial Court passed judgment in the case. An execution petition was filed in which the legal representatives, the respondents, had appeared. The ex­-parte judgment & decree for specific performance was sought to be set aside by an application after condoning the delay of 1312 days, long after legal representatives of the first defendant appeared in an execution petition filed by the plaintiff. The delay was condoned, the application was allowed, and the ex­-parte decree was set aside by the High Court. The High Court reversed the detailed order of the Trial Court, which refused to condone the delay. Aggrieved thereby, the appellants approached the Apex Court.

Reasoning

The Bench noted that the agreement itself is of the year 2013 and the suit of the year 2015. Admittedly, the first defendant appeared, but since no written statement was filed, he was declared ex­-parte. “There is nothing to show that the first defendant suffered from any ailment which disabled him to contest the matter; which is the first aspect to be considered while entertaining an application for setting aside the exparte decree”, the Bench stated.

The Bench discarded the contention of the respondent that they were unaware of the ex­-parte decree and had approached their lawyer, who had taken considerable time in returning the files, which was eventually done on December 16, 2019, soon after which an application to set aside the ex­-parte decree was filed. The Bench took note of the fact that the information regarding the ex­-parte decree, if not earlier available to the respondents, was available on August 20, 201,8 when they appeared before the execution court.

The only contention regarding the further delay caused after the appearance in the execution proceeding was that the files were not handed over by the lawyer. “In the more than one year, that it took for the lawyer to trace out the misplaced files, definitely certified copy of the records could have been taken and an application to set aside the ex­parte decree filed”, the Bench said. Reference was also made to a judgment in Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. (1987) where the Apex Court deprecated a pedantic approach in seeking for an explanation for every day’s delay and exhorted the doctrine to be applied in a rational, common sensical and pragmatic manner.

“Even going by the said decision, we cannot find a nondeliberate delay in the above matter. As we already found, there is no explanation for the deceased first defendant, to have not contested the matter, the joint ownership with the other defendant and the power of attorney executed in his favour as also the sale agreement being admitted. If in fact the power of attorney was cancelled as pleaded then it should have made the defendant more alert in contesting the suit in which he appeared”, the Bench said.

“We are unable to accept the reasoning of the impugned order to condone the delay occasioned, because there is falsity writ large, in the submission of the lawyer having misplaced the files”, the Bench held while allowing the appeal and setting aside the impugned order of the High Court.

Cause Title: K. Ramasamy v. R. Nallammal & Ors. (Neutral Citation: 2025 INSC 310)

Appearance:

Appellant: Dama Seshadri Naidu, AOR Daisy Hannah, Advocates Oindrila Sen, Samarth Mohanty, Sneha Ahmed

Respondents: Senior Advocate Gopal Shankarnarayanan, Advocates M. Ramesh, Ajith Williyam S, P. Shankar, K. R. Padhmanabha Raja, AOR B. Karunakaran

Click here to read/download Judgment






Justice Sudhanshu DhuliaJustice K. Vinod Chandran

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.