D. A. DESAI, J. ( 1 ) PETITIONER in these three revision applications is Asian Steel and Metals Private Limited a company registered under the Com- panies Act 1956 Petitioner questions the legality and correctness of the order made by the learned City Civil Court Judge on 30th April 1976 by which the application made by the petitioner who is original defendant No. 2 to set aside ex parte decree made in three suits and permit it to participate in the suit and defend the suit was dismissed with costs. Parties are the same in all the three petitions and contentions are entirely identical and therefore all the three Civil Revision Applications can be conveniently disposed of by this common judgment. ( 2 ) A few facts leading to the Revision Petition may be stated. Oppo- nent No. 1 in each petition filed three different suits being Civil Suits Nos. 1942 of 1979 1941 of 1972 and 2161 of 1972 for recovering various amounts from the present petitioner and opponent No. 2. Each suit was a summary suit and on summons for judgment being taken out the defendants in the suit including the present petitioner applied for and obtained unconditional leave to defend the suit. On the leave being gran- ted the suits were transferred as Long Cause and were pending for hearing. All the three suits were first notified for final hearing on 10th November 1974 and came to be adjourned in course of time to 3rd December 1974 when the Advocate appearing for the present petitioner who was defendant No. 2 submitted a statement saying that he had no further instructions in the matter on behalf of both the defendants and both the defendants were absent. Evidence on behalf of the plaintiff was recorded and ex-parte decree was made on 5th December 1974 Original defendant No. 1 has accepted the decree because he has neither applied for setting aside the decree nor has preferred appeal against the decree. Present peti- tioner original defendant No. 2 gave an application on 24th February 1975 in each suit for setting aside the ex parte decree and permit it to participate in the proceeding and to hear the proceedings from the stage where suits were proceeded ex parte. Present peti- tioner original defendant No. 2 gave an application on 24th February 1975 in each suit for setting aside the ex parte decree and permit it to participate in the proceeding and to hear the proceedings from the stage where suits were proceeded ex parte. These Applications were Civil Miscellaneous Application No. 68 of 19/5 in Suit No. 1942 of 1975 67 of 1975 in Suit No. 2161 of 1972 and 69 of 1975 in Suit No. 1941 of 1972. Original plaintiff resisted three applications and the learned Judge by his identical order dated 30th April 1976 rejected the applications with costs. Petitioner has preferred the present three revision applications being 660 of 1976 661 of 1976 and 662 of 1976 respectively questioning the correctness of the aforementioned decision of the learned City Civil Court Judge refusing to set aside the ex parte decree. ( 3 ) MR. R. N. Shah learned Advocate who appeared for the petitioner in each of these petitions urged that the applications for setting aside ex parte decree and restoring the suit to file would be governed by 0 37 R. 4 of the Code of Civil Procedure and would accordingly be governed by residuary Art. 137 of the Limitation Act and therefore limitation would be of three years from the date when the ex parte decree was made Alternatively it was contended that if proceeding would be governed by O. 9 R. 13 Article 123 of the Limitation Act 1963 would apply and the application for restoring the suit to file would be time barred but the evidence led by the petitioner would affirmatively show that he was pre- vented by sufficient cause from filing the application in time and therefore delay should have been condoned. ( 4 ) MR. R. N. Shah con ended that the suit filed by the plaintiff was governed by Order 37 Rule 2 and therefore if an ex parte decree is made in such a suit it could be set aside as provided in Rule 4 and in view of the decision of the Bombay High Court in P. N FILMS V. OVERSEAS FILMS CORPN. 59 L. R. 406 relevant Article of the Limitation Act would be resi- duary Article 137 and application would be within time. Undoubtedly suit filed was one which would be governed by Order 37 of the Civil Procedure Code. 59 L. R. 406 relevant Article of the Limitation Act would be resi- duary Article 137 and application would be within time. Undoubtedly suit filed was one which would be governed by Order 37 of the Civil Procedure Code. That is not in dispute. On a summons for judgment taken out by the plaintiff one Mr. Gor Manager of the present petitioner company appeared and applied for leave to defend and it is admitted that unconditional leave to defend was granted and accordingly suit was transferred to Long Cause List. When the suit came up for hearing first in November 1974 and came to be adjourned to 3rd December 1974 no one on behalf of the petitioner was present and the Advocate appearing for the petitioner gave no-instruction statement and suit proceeded ex parte. Question is whether such an ex parte decree would be governed by Rule 4 of Order 37. Rule 4 reads as under :4 After decree the Court may under special circumstances set aside the decree and if necessary stay or set aside execution and may give leave to the defendant to appear to the summons and to defend the suit if it seems reasonable to the Court so to do and on such terms as the Court thinks fit. The jurisdictional fact for invoking Rule 4 would be that a decree as con- templated by Rule 2 has been made. If the Court thinks it proper to set aside the decree Rule 4 enables the Court to give leave to the defendant to appear to the summons and defend the suit on such terms as the Court thinks fit. Power of the Court to permit appearance in response to the summons and grant leave to defend the suit would unmistakably show that an ex parte decree was made in a suit governed by Rule 2 in which there was no appearance in response to the summons or leave to defend was not granted or it was granted subject to the condition and condition was not fulfilled and suit ended in a decree. It is such a decree which can be set aside under Rule 4. It is such a decree which can be set aside under Rule 4. Failure to appear in response to the summons or the failure to obtain leave or if leave is granted conditionally failure to satisfy condition are three jurisdictional facts any one which if satisfied a decree passed in such circumstances can be set aside under Rule 4. This becomes abundantly clear upon the proper construction of Rule 4 itself. The language of Rule 4 is clear and unambiguous and does not admit of any other construction. ( 5 ) RULE 4 permits such a decree in a suit to be set aside in which there was no appearance in response to the summons or leave to defend was not granted or granted conditionally and conditions were not satis- fied then alone a decree can be set aside if it seems reasonable to the Court so to do on terms as may he prescribed by Court. tn the present case Rule 4 cannot be invoked. In this case undoubtedly the suit was governed by Rule 2. Summons was served upon the Manager of the present petitioner. It is an incorporated Company. There is no dispute that summons was not properly served. In fact in response to the summons Mr. Gor Manager on whom the summons was served has not only accepted the service as correct and valid service but he appeared in the suit and it was on his affidavit that application for leave to defend unconditionally was granted. Therefore three things follow from this position namely (i) that the summons was properly served (ii) leave to defend was applied for and (iii) it was granted unconditionally. Thereafter suit was transferred to Long Cause List. And after the suit was called on for hearing petitioner failed to appear. In these circumstances jurisdictional. facts for attracting Rule 4 are not established and therefore it cannot be invoked. If Rule 4 cannot be invoked the decision in P. N. Films case (supra) cannot assist the petitioner because the case would not be governed by the residuary Article 137. ( 6 ) IT is an admitted position that suit was transferred to the Long Cause List. If Rule 4 cannot be invoked the decision in P. N. Films case (supra) cannot assist the petitioner because the case would not be governed by the residuary Article 137. ( 6 ) IT is an admitted position that suit was transferred to the Long Cause List. It was called on for hearing first on 10th November 1974 and suit came to be adjourned to 19th November 1974 when application was given on behalf of the present petitioner by its Advocate that the party responsible for defending the action is out side Ahmedabad and matter may be adjourned. Suit was adjourned to 25th November 1974. Defendant No. 1 was present but defendant No. 2 did not attend on 25th November 1974. Suit came to be adjourned to 28th November 1974 and then to 3rd December 1974. The learned Advocate who appeared for both the defen- dants retired from the suit stating that he had no further instructions in the matter and suit ended in an ex parte decree after the plaintiffs evidence was recorded. ( 7 ) IT is again an admitted position that application for restoration was filed on 24th February 1975. This application would be governed by Art. 123 of the Limitation Act. ( 8 ) ARTICLE 123 of the Limitation Act 1963 provides limitation of 30 days and limitation would begin to run from the date of the decree or where summons or notice was not duly served when the applicant had knowledge of the decree. There is no dispute that notice or summons was duly served in this case. Limitation would begin to run from the date of the decree and it would be of 30 days. In other words? within 30 days application for setting aside the decree has to be made. Admittedly appli- cation has not been made within 30 days. Therefore application filed by the petitioner to set aside the decree would be barred by limitation within the meaning of Article 123 of the Limitation Act. ( 9 ) ACCORDING to the petitioner he was prevented by sufficient cause from applying for setting aside the decree within time. Sec. 5 of the Limitation Act provides for extension of prescribed period in case of any appeal or application if the applicant or appellant satisfied the Court that he had sufficient cause for not preferring the appeal or making the appli- cation within such period. Sec. 5 of the Limitation Act provides for extension of prescribed period in case of any appeal or application if the applicant or appellant satisfied the Court that he had sufficient cause for not preferring the appeal or making the appli- cation within such period. Petitioner invokes sec. 5 of the Limitation Act in this case. ( 10 ) IN order to understand the contention whether the cause put forth by the petitioner is sufficient or not certain dates may be taken into con- sideration. Ishvarbhai Naranbhai Patel who is the director of the petitioner company is a non-resident Indian. He left for Kenya on 14th September 1974 He went to London in November 1974 because his wife was ailing. He returned to India on 1st January 1975 and stayed in Bombay till 20th January 1975. Then he went to Rudel village near Borsad in Kaira District. He was there upto 31st January 1975. Plaintiff filed execution application on 14th February 1975 and obtained order for attaching the machinery belonging to the petitioner company. Application to set aside the decree was made on 24th February 1975. Question is whether in the circumstances herein mentioned the learned Judge was right in coming to the conclusion that the plaintiff has failed to show that he was prevented by sufficient cause in making the application in time. It may be mentioned here that oral evidence was led in this case while hearing application for restoration of suit. One Arvind Patel nephew of Ishvarbhai and a clerk serving in the petitioner company and Ishvarbhai the Director were examined on behalf of the petitioner. Shankarbhai a partner and Narandas Munim of plaintiff firm were examined on behalf of the opponent No. 1. Undoubtedly the learned Judge has appreciated the evidence nd has come to the conclusion that the present petitioner has failed to show that he was prevented by sufficient cause from making application in time for setting aside the decree. ( 11 ) THE learned Judge after examining the evidence recorded by him held that evidence of Arvindbhai Patel is not reliable and does not inspire confidence. The learned Judge accepted the evidence led on behalf of opponent No. 1 (original plaintiff) that Mr. ( 11 ) THE learned Judge after examining the evidence recorded by him held that evidence of Arvindbhai Patel is not reliable and does not inspire confidence. The learned Judge accepted the evidence led on behalf of opponent No. 1 (original plaintiff) that Mr. Gor Manager of the Company was present in the Court both on 25th November 1974and 28th November 1974 The learned Judge also did not believe evidence of Ishvarbhai that he did not come to know on his return to India that ex parte decree has been made in all the three suits. On these observations the learned Judge has rejected the applications of the petitioner. ( 12 ) WHAT constitutes sufficient cause within the meaning of sec. 5 of the Limitation Act has been the subject - matter of observation by various Courts. Very recently this position was examined threadbare by my learned brother M. P. Thakkar J. in KARIM ABDULLA V. HEIRS OF DECEASED BAI HOORBAI JAMA 16 L. R. 835. After exhaustively examining the ratio of the deci- sion in RAMANLAL V. REWA COALFIELDS A. I. R. 1962 S. C. 361 AND STATE OF WEST BENGAL V. THE ADMINISTRATOR HOWRAH MUNICIPALITY A. I. R. 1972 S. C. 749 in both of which the Supreme Court in terms observed that the expression sufficient cause employed in sec. 5 of the Limitation Act is to be inter- preted in a liberal manner so as to advance the cause of substantial Justice particularly when no negligence or inaction or want of bona find is impu- table to a party the learned Judge further observed that examining the matter on principle when the Court is confronted with the question of condoing delay the mental radar must flash the following messages :1 Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2 Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3 Every days delay must be condoned does not mean that a pedantic unpragmatic approach should be made. Why not every hours delay every seconds delay ? The doctrine must be applied in a rational common sense pragmatic manner. 3 Every days delay must be condoned does not mean that a pedantic unpragmatic approach should be made. Why not every hours delay every seconds delay ? The doctrine must be applied in a rational common sense pragmatic manner. 4 When substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay. 5 There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. The presumption would be just the other way round. 6 x x x x x x x x 7 x x x x x x x xit has been laid down threadbare that the Court while examining whe- ther the cause pleaded by a party in default is sufficient cause or not its approach must only be broad liberal approach and not highly technical narrow and constricted one. In fact I had myself to deal with this problem in AHER DEVSHI HARDAS V. HAMIR KARSAN SPECIAL CIVIL APPLICATION NO. 1839 OF 1974 DECIDED ON 4th APRIL 1975 A BRIEF REFERENCE OF WHICH IS MADE IN 12 GUJ. LAW TIMES 236 where after examining various prece- dents bearing on the subject one more test was formulated namely party in default can be accused of such gross inaction as to be indicative of his giving up the litigation. In a case where an ex parte order is made and party against whom it is made moves for setting aside the same there is bound to be some element of neligence. Overemphasizing the element of negligence which is bound to be there would lead to Court missing the real point required to be determined namely negligence was such as to be indicative of giving up the litigation. If the party is not at all negli- gent there would be no occasion for ex parte orders being made. If it is said that something happened at the last minute which prevented the party from attending the Court or communicating his lawyer it can still be said that there was some negligence in not making alternative arrange- ment to communicate with the lawyer. A very careful party attending to litigation keeping an eye on all eventuality will have never to resort to sec. A very careful party attending to litigation keeping an eye on all eventuality will have never to resort to sec. 5 of the Limitation Act. Therefore in such matters there is bound to be some element of negligence and the question is whether penalty for that negligence must be such as to refuse the fundamental right of being heard. Refusal to set aside ex parte decree is tantamount to refusal to give any opportunity to the party to put forth his case and to be burdened with the decision adverse to it. I would therefore examine the matter from this stand point. ( 13 ) BEFORE however I examine the rival contentions in this case I must dispose of one contention of Mr. Desai learned Advocate for the opponent. He pointed out very frankly that I am dealing with a revision application. That is a fact. He also pointed out that my jurisdiction is very limited. He is indisputably correct. The question really is whether the learned Judge who has dealt with the question of sufficient cause has misdirected himself by not applying the correct legal principle and therefore that is an error apparent on the record. No where the learned Judge defines or determines as to what would constitute sufficient cause and then proceed to apply the standard or yardstick to the case placed before him. He was in the frame of mind such as when hearing suit where he believes or disbelieves evidence and reaches a conclusion In a matter of this nature it is absolutely necessary for a correct approach in exerci- sing jurisdiction for condoning delay to be first mentally informed as to how question of sufficient cause is required to be examined and according to the ratio of the decision of the highest Court in our country. I no- where find that proposition in the order. The result has been that the learned Judge has completely miscarried himself and decision has led to manifest injustice denial of jurisdiction and it calls for interference. ( 14 ) MR. Desai was keen to point out that once the Court accepts that Mr. Gor the Manager of the Company was present both on 25th November 1974 and 28th November 1974 the case of the petitioner must be thrown out. A bare enumeration of events would show that this averment of the plaintiff cannot be accepted at all. Mr. Desai was keen to point out that once the Court accepts that Mr. Gor the Manager of the Company was present both on 25th November 1974 and 28th November 1974 the case of the petitioner must be thrown out. A bare enumeration of events would show that this averment of the plaintiff cannot be accepted at all. Mr. K. M. Bhatt was the Advocate for both the defendants. Mr. K. M. Bhatt has not filed affidavit nor has Mr. Gor filed the affidavit. However the record shows that Mr. K. M. Bhatt was engaged by Mr. Gor and Vakalatnama was signed by Mr. Gor. It was Mr. Gor the Manager who on behalf of the petitioner company made an application supported by affidavit for obtaining leave to defend. And on the contentions put forth by him the learned Judge granted unconditional leave to defend There must be very serious contentions put forth by Mr. Bhatt. There. fore for the purpose of record. Mr. Gor was really the defendant who represented the Company. Now if Mr. Gor attended the Court on 25th November 1974 and 28th November 1974 there was no reason for Mr. Bhatt to ask for adjournment on the ground that the party is out of Ahmedabad. Evidence on behalf of the petitioner is to the effect that Mr. Gor was not present because he was suffering from asthama and at the relevant time he was not in the employment of the petitioner. Once Mr. Gor was present Mr. Bhatt had the presence of a person who was in possession of such facts which enabled Mr. Bhatt to obtain unconditional leave to defend. Mr. Bhatt would not have cared for the presence of Ishvarbhai and Mr. Gor would have effectively represented the company yet application for adjournment is given on the ground that party is out of Ahmedabad or on 25th November 1974 on the ground that the party did not turn up. of course on 25th November 1974 original defendant No. 1 had not turned up. But if Mr. Gor was present suit could have very well proceeded. Mr. Bhatt would not be handicapped by the absence of Ishvarbhai. In this background it is it is possible to believe that Mr. Gor was present on 28th November 1974. of course on 25th November 1974 original defendant No. 1 had not turned up. But if Mr. Gor was present suit could have very well proceeded. Mr. Bhatt would not be handicapped by the absence of Ishvarbhai. In this background it is it is possible to believe that Mr. Gor was present on 28th November 1974. ( 15 ) IT was next contended that the register shows that Arvindbhai Patel continued to serve the petitioner company till he joined service with Gujarat University on 21st October 1974. In the mean time it is said that Arvindbhai Patel met someone on behalf of the plaintiff in Manekchowk locality and talk disclosed that the factory was working. Mr. Desai pointed out that along with this two missing pages of the register produced by the petitioner company to show that factory was closed would unmistakably show that not only the factory was working but there was someone always available and most probably Mr. Gor who was in charge of the affairs of the factory and he should have attended the Court. The whole argument is based on surmises. Oral talk in such matters would be hardly of any significance. A clerk though he was undoubtedly nephew of Ishvarbhai Arvindbhai would be the last to be thrown out of the company yet it is not in dispute that on 21st October 1974 he joined service of the University. It may be that he was paid some salary thereafter. If the specific date is given when he joined University that date must be believed because he might be confronted with the record of the University if he were to make an incorrect state- ment. Therefore it appears that since 21st October 1974 even Arvindhai had left the factory. It is not possible to believe that a clerk would be running a factory on his own responsibility and his mere presence would not help. Therefore not only the factory was closed earlier and in any case latest by October 1974 no one was in charge of closed factory. And remember that ex parte decree was made in December 1974 no one was available at that time to attend on behalf of the petitioner. ( 16 ) IT may here be pointed out that even according to the learned Judge Ishvarbhai was away from India till 1-1-1975. And remember that ex parte decree was made in December 1974 no one was available at that time to attend on behalf of the petitioner. ( 16 ) IT may here be pointed out that even according to the learned Judge Ishvarbhai was away from India till 1-1-1975. In paragraph 29 the learned Judge has observed: It is not improbable that the said Managing Director had not come to know at least immediately on his return to India on 1. 1. 75 that three decrees had been passed against the applicant as stated hereinabove. This would show that even according to the learned Judge it was not possible for Ishvarbhai to know about the ex parte decree till 1-1-1975. Ishvarbhai himself has taken oath to say that he came to know about the decree after 19-2-1975 when the Darkhast was filed and machinery of the factory was attached. The question then is whether he moved swiftly thereafter or was guilty of such inaction as to show any persistent default on his part so as to deny him benefit of discretionary order of the Court. I am satisfied that the petitioner has moved swiftly thereafter and cannot be accused of inaction. It is therefore most satis- factorily established keeping in view the correct approach to the subject that petitioner was prevented by sufficient cause from preferring application in time and therefore delay ought to have been condoned in this case. ( 17 ) QUESTION is whether we should put the petitioner to some terms. Undoubtedly discretion is being exercised in favour of the petitioner. Petitioner has undoubtedly obtained an unconditional leave to defend but now that he has been guilty of default and lapse some condition ought to be imposed upon him. I even suggested to Mr. Desai whether the plaintiff would like to have full costs of the suit irrespective of the decision of suit or I should direct the petitioner to deposit some amount in the Court. I left the choice to Mr. Desai and Mr. Desais choice was for directing the petitioner to deposit some amount in each suit keeping in view the fact that petitioner had obtained unconditional leave to defend. I think petitioner should be directed to deposit Rs. I left the choice to Mr. Desai and Mr. Desais choice was for directing the petitioner to deposit some amount in each suit keeping in view the fact that petitioner had obtained unconditional leave to defend. I think petitioner should be directed to deposit Rs. 2500 in each suit within four weeks from today and on condition being satisfied the ex parte decree made in each suit would be set aside and petitioner should be given an opportunity to appear and cross-examine the plaintiffs witnesses and to lead his own evidence in the matter. ( 18 ) ACCORDINGLY these three revision applications are allowed and ex parte decree made in Civil Suits Nos. 1942 2161 and 1941 all of 1972 are set aside and Civil Miscellaneous Applications Nos. 68 67 and 69 all of 1975 respectively are allowed setting aside the order made by the learned Judge rejecting them. Petitioner is permitted to appear in the suits on a condition that he deposits Rs. 2500 in each suit within four weeks and each suit should be tried de novo from the stage of recording evidence meaning thereby the plaintiffs evidence should also be recorded afresh. Rule made absolute with no order as to costs. Rule made absolute. .