RAM SAKET CO OPERATIVE HOUSING SOCIETY LTD.versusDOMNIC ANTHONY D.SOUZA SINCE DECEASED THR LRS. 1.1 SMT.LUIZA WD/O. DOMNIC D SOUZA AND ORS.

2026:BHC-AS:24431

                                                                            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.   ... Applicant
                    In the matter between:                            (Orig. Deft. No.3)

                    Ram Saket Co-operative Housing Society Ltd.   ... Appellant.
                                                                      (Orig. Deft. No.3)
                         Versus

                    Dominic Anthony D’Souza (since deceased)      ... Respondents.
                    and Ors.                                          (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.



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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 23 rd 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 26 th 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


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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 5 th

January, 2026 and thereafter, the present appeal has been ?led along

with the application for condonation of delay immediately on 7 th

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




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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 12 th February,

2013, 22nd March, 2013, and 24th March, 2013, and was adjourned as

the transfer of the record has not taken place and on 19 th 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 7 th April, 2015. The

Defendant No.3 preferred an appeal against the order of dismissal




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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 6 th

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


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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 15 th 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




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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 20 th

April, 2015, the Appeal from Order was ?led before the High Court

challenging the order of dismissal, which came to be dismissed on 6 th

November, 2025 and the Review Petition was ?led on 17 th November,

2025 and was dismissed on 26th November, 2025. He submits that the

SLP came to be ?led before the Apex Court on 12 th December, 2025

and on 5th January, 2026, the SLP came to be dismissed, as against

which the ?rst appeal has been ?led on 8 th 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


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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 1 st 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


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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


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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 8 th

January, 2026.

18.      To re-capsulate, the Defendant No.3 had preferred an

application under Order IX Rule 13 of CPC on 17 th 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 17 th

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



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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 28 th April,

2015, the Appeal from Order was ?led before this Court and on

dismissal of the Appeal from Order by this Court on 6 th November,

2025, on 17th November, 2025, the review petition was ?led before

this Court and upon dismissal of the review petition on 27 th

November, 2025, the SLP was ?led before the Apex Court on 12 th

December, 2025 and on dismissal of the SLP on 5 th 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.      It cannot be said that in pursuing the remedy under Order IX


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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




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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 7 th

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:


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          “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


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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




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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




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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




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                             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.]




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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 17/06/2026 20:46:10