Arun Bhansali, J.@mdashThis appeal under Order XLIII, Rule 1(d) CPC has been filed against the order dt. 19.04.2010 passed by the Additional District Judge No. 1, Bhilwara camp Gangapur, whereby, the application filed by the appellant under Order IX, Rule 13 CPC was rejected. This appeal is time barred by 649 days and an application under Sec. 5 of the Limitation Act has been filed seeking condonation of delay in filing the appeal. In the said application, it has been contended that the ex-parte decree was passed by the trial Court on 13.07.2005, for which, information was not given to him nor the counsel informed him about the same. He came to know about the said ex-parte decree dt. 13.07.2005 on 23.03.2007 when in pursuance of the execution launched by the plaintiff the process server came to him. As the application under Order IX, Rule 13 CPC was barred by time, the application under Sec. 5 of the Limitation Act was also moved. It was then stated in the application that the said application under Order IX, Rule 13 CPC was dismissed by the trial Court on 19.04.2010. The counsel engaged by the appellant did not appear in the matter and another counsel appeared in the matter at the camp Court, who did not inform the appellant about the order dt. 19.04.2010 and even the counsel engaged by him also did not inform him about the said order. It is claimed that again when the execution proceedings were started and the process server of the executing Court visited the appellant, in the first week of February, 2012, he came to know about the dismissal of application under Order IX, Rule 13 CPC. Thereafter certified copies were obtained and counsel, was contacted at Jodhpur, who instructed him to bring certain more documents and record and after collecting the same the appeal was prepared and filed. Ultimately, it was claimed in the application that the delay in filing the appeal had occurred unintentionally and there is sufficient cause within the meaning of Section 5 of the Limitation Act for condonation of delay in filing the appeal. It was also submitted in the application that when technical/procedural irregularities and substantial justice are pitted out against each other, the cause of later has to be sustained and as the appellant has a very good case on merits, the same may not be thrown out for ''short'' and unintentional delay in filing the appeal.
2. Notices of Section 5 of the Limitation Act were issued to the respondent-plaintiff.
3. It was contended by counsel for the appellant that the delay in filing the appeal deserves to be condoned, as on both the occasions, when the decree was passed ex-parte and when the application under Order IX, Rule 13 CPC was rejected, the counsel did not inform the appellant and, on both the occasions, it was when the process server from the executing Court approached him, that he became aware of passing of the ex-parte decree as well as the rejection of application under Order IX, Rule 13 CPC.
4. It was contended that the Court should decide the matter on merit by giving the expression ''sufficient cause'', a pragmatic justice-oriented approach as held by the Hon''ble Supreme Court in the case of
5. On the other hand, it was contended by learned counsel for the respondent that the delay of 649 days cannot be condoned on mere asking. The appellant has failed to point out any sufficient cause for delay in filing the appeal. It was also submitted that the entire conduct of the litigation proves beyond doubt that the appellant has been quite negligent in prosecuting the litigation and, therefore, he is not entitled for any relief from this Court.
6. Having considered the rival submissions made at the Bar by learned counsel for the parties and on perusing the material placed on record, this Court does not find it to be a case where the delay deserves to be condoned. Though the Hon''ble Supreme Court has consistently held that the Court should decide the matter on merit by giving the expression sufficient cause a pragmatic justice-oriented approach, but this is also the consistent view of Hon''ble Supreme Court that gross negligence on the part of a litigant cannot be encouraged and in absence of any sufficient cause, the application seeking condonation of delay is liable to be dismissed.
7. The suit in the present case was filed on 20.01.2004 for recovery of a sum of Rs. 54,000/- being amount of arrears of rent. Written statement was filed and issues were framed. Thereafter as noticed above, on account of non-appearance by the appellant-defendant, when the matter was fixed for his evidence, after adjourning the matter once and after healing the arguments of the plaintiff on 02.08.2005, the ex-parte decree was passed on 04.08.2005. The application under Order IX, Rule 13 CPC thereafter was filed after a passage of more than one and a half year, claiming the date of knowledge to be 23.03.2007 of the ex-parte decree. The blame for the delay was laid on the counsel appearing for the appellant. Thereafter also when the application under IX, Rule 13 CPC was decided by the impugned order on 19.04.2010, then this appeal has been preferred after delay of 649 days. Again the blame is laid at the doorsteps of the counsel representing the appellant. In a case before the trial Court unlike the High Court where matters remain pending in ''due course'', on every date when the matter is fixed, next date is always given by the said Court and, therefore, the conduct of the appellant in not contacting his lawyer from the period 13.07.2005 to 23.03.2007 and thereafter from 19.04.2010 till February, 2012 simply smacks of gross negligence on part of the appellant. It is not expected of a counsel to run after a client and keep him informed of the progress of the matter from day to day. This is not the case of the appellant that he approached the counsel any time between 19.04.2010 to February, 2012 when any wrong information was supplied to him. Therefore, if the appellant has chosen not to approach the counsel for inquiry about the progress of the case, it is his own sweet will and he cannot now turn around and rely on the said so called default on part of the Advocate for seeking condonation of delay.
8. The judgment of this Court in the case of Narayan Lal Bagra (supra) cannot come to the aid of the appellant as in the said case counsel had pleaded no instructions without giving a notice to the appellant. On the other hand, in the present case the counsel has appeared and argued the matter on behalf of the appellant and, therefore, the facts of the case are clearly distinguishable.
9. As the appellant has failed to make out any case for condonation of delay and gross negligence on his part in the conduct of the entire litigation including filing of this appeal is writ large on the face of record, this Court is not inclined to examine the merits of the appeal. In view of the above discussion, no case is made out for condonation of delay. The application under Sec. 5 of the Limitation Act seeking condonation of delay is dismissed and, consequently, the appeal is also dismissed. No costs.
