10 IA 193-2026.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO. 193 OF 2026 IN FIRST APPEAL (ST.) NO. 582 OF 2026 Ram Saket Co-operative Housing Society Ltd. In the matter between: ... Applicant (Orig. Deft. No.3) Ram Saket Co-operative Housing Society Ltd. ... Appellant. (Orig. Deft. No.3) Versus Dominic Anthony D’Souza (since deceased) and Ors. ... Respondents. (Orig. Plainti2) ————— Mr. Karl Tamboly a/w. Mr. Reehan Ajmerwalla and Mr. Ankush Saraf for the Applicant-Appellant. Mr. Udit Gupta a/w. Mark Dbritto i/by Ernest Tuscano and Charles Dmello for Respondent No.1(b). ————— Coram : Sharmila U. Deshmukh, J. Date : June 17, 2026 ORDER : 1. Interim Application has been preferred at the instance of the original Defendant No.3 seeking condonation of delay of approximately 4258 days caused in preferring the First Appeal against the impugned judgment and decree dated 10th April, 2014 passed in Suit No.182 of 1988. For sake of clarity, the parties are referred to by their status in the trial Court. sa_mandawgad 1 of 18 2026:BHC-AS:24431 10 IA 193-2026.doc 2. Suit No.182 of 1988 was ?led seeking a declaration that the agreement for sale dated 15th April, 1970 stands revoked, cancelled and terminated for non compliance of the obligations by the Defendant Nos. 1 and 2, who were the developers and for handing over vacant and peaceful possession of the suit land on which the Defendant No.3-Co-operative Housing Society was constructed under development agreement of the year 1970. 3. The suit was initially ?led in the High Court and the issues came to be framed on 6th August, 2007 after the ?ling of written statement by the Defendant No.3 in August, 2006. The suit proceeded till the cross examination of the Plainti2’s witness upto 18th December, 2008. Due to enhancement of pecuniary jurisdiction of the City Civil Court, on 23rd August, 2012, the suit came to be transferred to the City Civil Court. It is contended by Defendant No.3 that the Defendant No.3 or its Advocate did not receive any notice of such transfer and the Advocate lost track of the matter and the suit proceeded ex parte and decree came to be passed. 4. It is submitted that in or around 26th September, 2014, the members of the Defendant No.3 Society were threatened with eviction on the basis of the impugned decree, pursuant to which the Defendant No.3 approached the erstwhile Advocate to make sa_mandawgad 2 of 18 10 IA 193-2026.doc necessary inquiry and were informed by the erstwhile Advocate that he was unaware of any such decree and no notice has been received by him from the Court upon transfer. 5. It is submitted that time was consumed in changing the Advocate and taking search of the records and proceedings of the Court and subsequent thereto, an application was ?led under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) being Notice of Motion No.3969 of 2015 in the Bombay City Civil Court. The Defendant No.3 in a bona?de manner pursued its remedy under Order IX Rule 13 of CPC for the last 11 years till the ?nality of the dismissal of the Notice of Motion by the Hon’ble Apex Court on 5th January, 2026 and thereafter, the present appeal has been ?led along with the application for condonation of delay immediately on 7th January, 2026. 6. The aDdavit-in-reply has been ?led by the original Plainti2 opposing the application setting out the facts leading to the ?ling of the suit. It is submitted that the developer had ?led Suit No.1679 of 1978 against the original Plainti2 inter alia for decree of possession of suit property and on 22nd November, 1985, the suit came to be dismissed for default and thereafter, the Suit No.2199 of 1988 came to be ?led by the Plainti2. On 21st May, 2003 i.e. 17 years after sa_mandawgad 3 of 18 10 IA 193-2026.doc institution of the suit, the Defendant No.3 ?led its written statement to the suit and has concealed the fact that in the year 1999, they had ?led Suit No.7430 of 1999 against the Plainti2s herein, inter alia for speci?c performance of the agreement for sale, and, vide order and judgment dated 30th July, 2021 the notice of motion as well as the suit came to be disposed of. 7. It is submitted that after the transfer of the suit to the City Civil Court, the same was listed before the City Civil Court on 12th February, 2013, 22nd March, 2013, and 24th March, 2013, and was adjourned as the transfer of the record has not taken place and on 19th July, 2013, a notice for appearance was issued to the Defendant No.3 by the City Civil Court. However, as they failed to appear in the proceedings, on 21st January, 2014, the evidence of Defendant No.3 was closed and thereafter the impugned judgment and decree came to be passed on 10th April, 2014. 8. It is contended that the impugned judgment and decree was ?rst sought to be set aside by ?ling of an application under Order IX Rule 13 of CPC, which came to be ?led after delay of 171 days caused in ?ling the notice of motion which was considered by the City Civil Court and came to be rejected by order dated 7th April, 2015. The Defendant No.3 preferred an appeal against the order of dismissal sa_mandawgad 4 of 18 10 IA 193-2026.doc dated 7th April, 2014 by way of Appeal from Order No.618 of 2015, which came to be dismissed by this Court by order dated 6th November, 2025 and the review also came to be dismissed vide order dated 27th November, 2025. The Defendant No 3 thereafter preferred Special Leave Petition (SLP) before the Hon’ble Apex Court, which came to be dismissed by the Hon’ble Apex Court on 5th January, 2026. 9. It is submitted that the Defendant No.3 has conducted the entire litigation unscrupulously and by their dishonest conduct delayed the proceedings which commenced in the year 1988. The grounds of delay raised in present application has already been considered exclusively by the City Civil Court, by this Court and by the Hon’ble Apex Court and cannot be re-agitated in the present proceedings. It is further submitted that the Defendant No.3 has taken varying stands in successive pleading as in the proceedings under Order IX Rule 13 of CPC, the Defendant No. 3 has stated that the notice was not received as the post box of the Defendant No.3 Society was in illegal custody of the Plainti2s since 2013 and the Society has no access to the same, to which the reply of the plainti2s was that there was never any post box at all and in the rejoinder a stand has been taken that the Society believes that the Plainti2s have illegally removed and destroyed the same and further states that the post box of the Society is now maintained by the oDce bearers of the sa_mandawgad 5 of 18 10 IA 193-2026.doc Society, and that all correspondence is to be delivered to the oDce bearer’s individual post box situated on the ground Eoor. It is stated that the Defendant No.3 has failed to demonstrate that they had taken due care and diligence in pursuing the proceedings and has failed to establish their bona?des. 10. Mr. Tamboly, learned counsel appearing for the Defendant No.3 would submit that the dispute had arisen between the owners of the subject land and the developer, who had developed the suit property under an agreement of 15th April, 1970 and the Defendant No.3 is a cooperative housing society with 13 members residing in their respective Eats for the last 40 years in the structure constructed by the developer. He would submit that the suit was being diligently pursued by the Society which is evident from the fact that the cross- examination of the Plainti2s’ witness was conducted by the Society and it is only upon the transfer of the proceedings to the City Civil Court and non-receipt of the notice from the City Civil Court that the proceedings were lost track of and resultantly the ex parte impugned judgment and decree came to be passed. 11. He submits that in the present proceedings, the issue is as regards the condonation of delay in ?ling the present ?rst appeal which delay has occurred by reason of Defendant No.3 pursuing their sa_mandawgad 6 of 18 10 IA 193-2026.doc remedy under Order IX Rule 13 of CPC. He submits that the notice of motion under Order IX Rule 13 of CPC was ?led on 1st November, 2014 and came to be dismissed on 7th April, 2015 and immediately on 20th April, 2015, the Appeal from Order was ?led before the High Court challenging the order of dismissal, which came to be dismissed on 6th November, 2025 and the Review Petition was ?led on 17th November, 2025 and was dismissed on 26th November, 2025. He submits that the SLP came to be ?led before the Apex Court on 12th December, 2025 and on 5th January, 2026, the SLP came to be dismissed, as against which the ?rst appeal has been ?led on 8th January, 2026 along with application for condonation of delay. 12. He submits that out of the period of delay of 4258 days caused in preferring the ?rst appeal, the period of 4036 days was spent in prosecuting the Order IX Rule 13 proceedings with due diligence. He submits that the time spent in prosecuting the proceedings under Order IX Rule 13 constitutes a suDcient cause for condoning the delay. In support, he relies upon the decision in the case of Bhivchandra Shankar More vs. Balu Gangaram More and Ors.1 13. Per contra, Mr. Gupta, learned counsel appearing for the Respondent No.1(b)-Original Plainti2 No.1(b) submits that the suit was ?led by the Plainti2s in the year 1988 and the written statement 1 (2019) 6 SCC 387 sa_mandawgad 7 of 18 10 IA 193-2026.doc came to be ?led after 17 years in the year 2006 and the suit has been decreed in the year 2014. He submits that for the purpose of ?ling an application under Order IX Rule 13, the period of limitation is 30 days and the notice of motion came to be ?led on 1st November, 2014, which is a delay of about 177 days. He submits that the only explanation that has been given for the delay of 177 days caused in preferring the application under Order IX Rule 13 is set out in paragraph 7 about change of the Advocates and taking search of records and proceedings which does not constitute a suDcient cause. He points out that the City Civil Court while dismissing the application under Order IX Rule 13 has rejected the application ?led under Order IX Rule 13 of CPC as well as the application for condonation of delay by holding that the Defendant No.3 has failed to show any bona?de reason for not ?ling the notice of motion within time. He submits that the challenge to the order of City Civil Court failed till the Hon’ble Apex Court and in view thereof, the explanation which is tendered for the purpose of condoning the delay in the present ?rst appeal on the same ground cannot be sustained drawing support from the decision of the Hon’ble Apex Court in the case of Thirunagalingam vs. Lingeswaran and Anr.2 14. He would further point out the falsity of the case set up by the 2 2025 SCC OnLine SC 1093 sa_mandawgad 8 of 18 10 IA 193-2026.doc Defendant No.3 in its application under Order IX Rule 13 about non receipt of the notice from the Civil Civil Court, the reply to the same by the Plainti2s and the rejoinder in order to contend that varying stands are being taken by the Defendant No.3 and this conduct does not deserve any indulgence from this Court. He would further point out the suit ?led by the Society in the year 1999, in which the notice of motion and the suit came to be dismissed on the ground of limitation, which fact has not been disclosed in the present interim application. 15. In rejoinder, Mr. Tamboly would submit that that Mr. Gupta has con?ned his arguments only in respect of the delay of 177 days which was caused in ?ling the application under Order IX Rule 13 and the Trial Court has dismissed the application without any discussion on the explanation tendered for condonation of delay in ?ling the application in Order IX Rule 13 of CPC. He would further point out that this Court, while dismissing the appeal has con?ned its ?ndings only to the merits of the application ?led under Order IX Rule 13. He would further submit that the decision of Thirunagalingam vs. Lingeswaran and Anr. (supra) is inapplicable as in that case the same grounds were raised for ?ling the application under Order IX Rule 13 of CPC as well as for the purpose of condonation of delay in ?ling the ?rst appeal and in that facts the Hon’ble Apex Court has held that as sa_mandawgad 9 of 18 10 IA 193-2026.doc the issue already stands concluded on the same grounds the explanation for condonation of delay cannot be considered. 16. Rival contentions now fall for determination: 17. In the present application, the Defendant No.3 seeks condonation of delay in ?ling the present ?rst appeal, which delay is to be computed from the date of the impugned judgement and decree i.e. 10th April, 2014 till the ?ling of the ?rst appeal i.e. till 8th January, 2026. 18. To re-capsulate, the Defendant No.3 had preferred an application under Order IX Rule 13 of CPC on 17th October, 2014 and there was a delay of about 177 days caused in preferring the application under Order IX Rule 13. The application came to be dismissed by the Trial Court and the matter was carried till the Hon’ble Apex Court and ultimately the SLP came to be dismissed on 5th January, 2026 and immediately thereafter, the present ?rst appeal has been ?led on 8th January, 2026. 19. Insofar as the time spent in prosecuting the application ?led under Order IX Rule 13 is concerned, the said period i.e. from 17th October, 2014 till 05th January, 2026 can be taken as constituting a suDcient cause within the meaning of Section 5 of the Limitation Act to condone the delay in preferring the appeal against an ex parte sa_mandawgad 10 of 18 10 IA 193-2026.doc decree on merits. The statutory provisions of CPC would indicate that the defendant who has su2ered an ex parte decree is entitled to ?le an application under Order IX Rule 13 of CPC to set aside the ex parte decree by satisfying the Court that the summons was not duly served or though served, the defendant was prevented by suDcient cause from appearing in the Court when the suit is called out for hearing and the other remedy which is available is to ?le a regular appeal from the original decree to the First Appellate Court on the merits of the case. If the time frame in ?ling of the application under Order IX Rule 13 of CPC till the dismissal of the First Appeal is considered, the time lines would indicate that upon the dismissal of the notice of motion under Order IX Rule 13 on 7th April, 2015 immediately on 28th April, 2015, the Appeal from Order was ?led before this Court and on dismissal of the Appeal from Order by this Court on 6th November, 2025, on 17th November, 2025, the review petition was ?led before this Court and upon dismissal of the review petition on 27th November, 2025, the SLP was ?led before the Apex Court on 12th December, 2025 and on dismissal of the SLP on 5th January, 2026, the present ?rst appeal has been ?led on 8th January, 2026, which shows due diligence was exercised by the Defendant No 3 in prosecuting the application for setting aside the ex parte decree. 20. 20. It cannot be said that in pursuing the remedy under Order IX sa_mandawgad 11 of 18 10 IA 193-2026.doc Rule 13, the intention of the Defendant No.3 was to delay the proceedings. It is not even the submission of Mr. Gupta that the prosecution of the proceedings under Order IX Rule 13 of CPC was a dilatory tactic adopted by the defendant No.3 or there is any lack of bona+de in pursuing the said remedy. In the absence of any inaction or negligence in prosecuting the proceedings under Order IX Rule 13, the time spent in prosecuting the said proceedings constitutes suDcient cause for condoning the delay in ?ling the ?rst appeal. The legal position is settled by the Apex Court in the case of Bhivchandra Shankar More (supra), which has been rightly relied upon by Mr.Tamboly. 21. Being aware of the said position, Mr. Gupta has resisted the application by con?ning his arguments to the aspect of delay of 177 days caused in preferring the application under Order IX Rule 13. 22. The edi?ce of Mr. Gupta’s arguments is that once the explanation for condonation of delay of 177 days caused in preferring the application under Order IX Rule 13 has been rejected by the Trial Court right up to the Hon’ble Apex Court, the same reasons for delay cannot be adjudicated while considering the present application. Reliance is placed on the decision of the Hon’ble Apex Court in the case of Thirunagalingam vs. Lingeswaran and Anr. (supra) which sa_mandawgad 12 of 18 10 IA 193-2026.doc requires consideration in some detail. In the facts before the Hon’ble Apex Court, the defendants after ?ling the written statement, failed to appear in the matter and ex parte decree came to be passed on 7th February, 2017. The Defendants preferred two separate applications under Order IX Rule 13 along with the application for condonation of delay of 712 and 467 days respectively, which came to be allowed, as against which the original plainti2 preferred a revision before the High Court, which was allowed. The Defendants preferred the SLP before the Hon’ble Apex Court, which dismissed the SLP. After the matter attained ?nality on the account of dismissal of the SLP, the Defendants preferred an appeal against an ex parte judgment and decree along with an application for condonation of delay. The Hon’ble Apex Court noted that the Defendants had raised the very same grounds in the application for condonation of delay in ?ling the appeal that was raised in the application seeking condonation of delay in ?ling the application under Order IX Rule 13 CPC and as the same was adjudicated and had attained ?nality till the Hon’ble Apex Court, the application was held to be unsustainable. 23. The Hon’ble Apex Court noted in paragraph 28 that in the earlier round of litigation, the Hon’ble Apex Court after going through the evidence placed on record rightly held that delay has not been properly explained as under: sa_mandawgad 13 of 18 10 IA 193-2026.doc “28. ……… 5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained, and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after ?nding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of Popat Bahiru Goverdhane v. Land Acquisition O1cer, (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly a2ect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full e2ect to the same.” 24. The Hon’ble Apex Court further held in paragraph 31 as under: “31. It is a well-settled law that while considering the plea for condonation of delay, the ?rst and foremost duty of the court is to ?rst ascertain the bona ?des of the explanation o2ered by the party seeking condonation rather than starting with the merits of the main matter. Only when suDcient cause or reasons given for the delay by the litigant and the opposition of the other side is equally balanced or stand on equal footing, the court may consider the merits of the main matter for the purpose of condoning the delay.” 25. The decision reveals that there was adjudication on the issue of condonation of delay till the Hon’ble Apex Court and the Trial Court had held that in absence of any material evidence, it cannot be said sa_mandawgad 14 of 18 10 IA 193-2026.doc that the delay has been explained. The Hon’ble Apex Court after going through the evidence has held that delay had not been property explained and grounds put forth are insuDcient to constitute suDcient cause under Section 5 of Limitation Act, 1963. 26. In the present case, the application under Order IX Rule 13 was rejected by the Trial Court on 7th April, 2025 and the issues which were framed by the Trial Court was whether the defendant No.3 had made out a suDcient cause for non-appearance on the date of hearing of the suit and whether the notice of motion deserves to be allowed. 27. The ?ndings of the Trial Court were rendered on the points which were framed and the Trial Court came to a ?nding that there was no suDcient good cause shown for non appearance of the defendant no.3 on the date of hearing. The entire discussion of the Trial Court was on the merits of Order IX Rule 13 application and whether suDcient cause was shown for non appearance which was a period prior to the passing of the impugned judgment and decree. Whilst dismissing the application on merits, the Trial Court has held “The Defendant No 3 has also failed to show that there was bona?de reasons for not ?ling notice of motion within time.” There is neither any discussion nor any reasoned ?nding on the explanation which was tendered for the delay of 171 days in ?ling the application under sa_mandawgad 15 of 18 10 IA 193-2026.doc Order IX Rule 13 of CPC and why the explanation is unacceptable. 28. Similarly, the order of the High Court though notes that there was a delay of 171 days caused in taking out the application dismissed the Appeal from Order by considering whether there was suDcient cause shown by the defendant for non-appearance on the date of hearing of the suit. The order of the Hon’ble High Court does not render any ?nding on the aspect of delay caused in ?ling the application under Order IX Rule 13 of CPC. The SLP came to be dismissed in limine. 29. The decision of Thirunagalingam vs. Lingeswaran and Anr. (supra), reiterates the well settled position in law that the Court has to ?rst ascertain the bona?des of the explanation for condonation of delay before starting with the merits of the main matter. The Trial Court has not adjudicated the merits of the application under Order XI Rule 13 of CPC holding it to be meritless and while dismissing the application renders a one line ?nding that there is no bona?de reason for delay without even venturing into the reason set forth for the delay. The decision of Thirunagalingam vs. Lingeswaran and Anr. (supra), was based on the fact that there were detailed reasoned ?nding as to why the explanation could not be accepted, in which case, the suDciency of the said reason could not be re-agitated in ?rst sa_mandawgad 16 of 18 10 IA 193-2026.doc appeal proceedings. In the present case, there is no reasoned discussion and no ?nding qua the reason for delay rendered either by the Trial Court or the High Court, which can be said to have attained ?nality. 30. Insofar as the conduct of the Defendant No.3 is concerned by delaying in ?ling written statement or taking varying stands in support of application under Order XI Rule 13 of CPC, the Defendant No.3 has already su2ered rejection of its application and for the present purpose is not required to be considered. 31. As there is no ?nding rendered in the earlier round of litigation, it cannot be said that the ?ndings had attained ?nality. Rather it is ?nding on suDciency of cause for non-appearance when the suit was called out for hearing, which had attained ?nality. This Court has considered the explanation given for the delay of 171 days from the date of passing of the impugned judgment and decree till the ?ling of the application under Order IX Rule 13 of CPC. The explanation tendered is that upon becoming aware of passing of the impugned judgment and decree, time was consumed in change of Advocates, taking search of records and proceedings and ?ling of application. The delay of 171 days cannot be said to be such a substantial delay, that the explanation tendered cannot be accepted as suDcient sa_mandawgad 17 of 18 10 IA 193-2026.doc explanation by adopting liberal approach so that the substantive rights of the parties are not defeated on the ground of delay. There is no gross negligence or inaction demonstrated on part of the Defendant No.3 after acquiring knowledge about the passing of the impugned judgment and decree and the explanation tendered is the normal course which would be adopted by a litigant after becoming aware of an adverse ex parte judgment being passed. In my view, the explanation tendered is suDcient to condone the delay of 171 days till the ?ling of the application under Order IX Rule 13 of CPC and the subsequent period which was spent in prosecuting the application till the Hon’ble Apex Court. 32. In light of the above discussion, there is suDcient explanation for condonation of delay of 4258 days caused in preferring the First Appeal. Resultantly, the Interim Application is allowed. [Sharmila U. Deshmukh, J.] sa_mandawgad 18 of 18 Signed by: Sanjay A. Mandawgad Designation: PA To Honourable Judge Date: 17/06/2026 20:46:10