Judgment :- 1. This petition is filed under S.5 of the Limitation Act to condone the delay of 1026 days in filing the above appeal in this Court. (In the CMP., the delay is wrongly stated to be of 1018 days). The facts that led to the filing of this petition are as follows: Ist defendant in O.S. 170 of 1977 is the appellant in the appeal and the petitioner in CMP. No. 5449/1982. Originally, the suit was filed by the plaintiff, in forma pauperis for specific performance of an agreement dated 30-5-1972 executed by the 1st defendant as modified by subsequent agreements dated 2-6-1972 and 30-9-1972 agreeing to sell 100 acres of land for Rs.70,000/- in Sy. No. 1/1 Puthupadi Amsom. In the alternative, plaintiff prayed for recovery of a sum of Rs 1,15.001/-as damages for breach of contract from the defendants jointly, in the suit. The plaintiff was given possession of the entire property. He cleared wild-growths, constructed roads and obtained forest pass to cut and remove timber from 50 out of 100 acres. He entered into an agreement with a stranger to sell timber trees. On 15-10-1972 the plaintiff entered into an agreement with defendants 2 to 5 and granted permission to use and occupy 25 acres of land for tapioca cultivation for one year. Defendants 2 to 5 were to pay 1/4 of the produce and surrender possession after the period. They did not pay. Surrender of this portion of the property was also prayed for. The Ist defendant was laid up from 20-10-1972 to 17-1-1973. During this period he carried on negotiations with defendants 2 to 5. Plaintiff was not aware of the same. The application filed in forma pauperis, OP. 17 of 1975, was allowed on 4-8-1977. The Ist defendant did not contest the pauper application. He filed a written-statement, instead of filing objections to the pauper application in February, 1977. The application having been allowed on 4-8-1977, it was numbered as OS. No. 170 of 1977, Subordinate Judge's Court, Kozhikode. In the pauper application, summons was served on the 1st defendant. Along with the summons relating to the pauper application a copy of the plaint was sent. When the pauper application was allowed and it was numbered as a suit, OS. No. 170 of 1977, a fresh summons was sent, but it was not accompanied by a copy of the plaint. Along with the summons relating to the pauper application a copy of the plaint was sent. When the pauper application was allowed and it was numbered as a suit, OS. No. 170 of 1977, a fresh summons was sent, but it was not accompanied by a copy of the plaint. Under Order V R.2, the summons should be sent along with a copy of the plaint. It was not so done. The issues were framed in the suit on 31-1-1978. The summons in the suit was received by the 1st defendant on 29-9-1977. He did not appear. He has reasons for not doing so. He was declared exparte on 26-10-1977. An exparte decree was passed against the 1st defendant on 17-11-1978. He came to know of the exparte decree only on 12-7-1979 when he received notice from the execution court. He contacted Advocate Mr. Bhaskar, who appeared for him in the forma pauperis proceedings, on 13-7-1979. A petition under Order IX R.13 CPC., numbered as IA 2927 of 1979, was filed on 17-7-1979 to set aside the exparte decree dated 17-11-1978. After vicissitudes, the said I.A. 2927/79 was finally dismissed on 7-9-1982. In the meanwhile, before the disposal of LA. No. 2927/79, on 8-12-1981 the Ist defendant filed the above appeal, A.S. 88 of 1982, in this court from the exparte decree itself dated 17-11-1978. By way of abundant caution, he also filed C.M.A. 202 of 1982 in this court from the order refusing to set aside the exparte decree, passed in IA. No. 2927 of 1979 dated 7-9-1982. According to the 1st defendant the petitioner, the delay of 1026 days (wrongly stated as 1018 days) in filing the above appeal from the exparte decree was caused due to reasons beyond his control. The various events that resulted in the delay in filing the above appeal have been catalogued in Paras 2 to 8 of the affidavit dated 8-12-1981 filed in support of the petition. The petitioner has also filed a reply-affidavit dated 2-7-1984 reiterating the averments made in the earlier affidavit Along with the reply-affidavit, affidavits of Advocates Sri B. G. Bhaskar (Ext. P3 dated 17-7-1979), Sri O. Balanarayanan (Ext. P4 dated 20-7-1980), filed in lower court are also attached. This petition is opposed by the plaintiff/Ist respondent. The petitioner has also filed a reply-affidavit dated 2-7-1984 reiterating the averments made in the earlier affidavit Along with the reply-affidavit, affidavits of Advocates Sri B. G. Bhaskar (Ext. P3 dated 17-7-1979), Sri O. Balanarayanan (Ext. P4 dated 20-7-1980), filed in lower court are also attached. This petition is opposed by the plaintiff/Ist respondent. The counter-affidavit filed by the 1st respondent is dated 4-6-1984, According to him, the various reasons stated in the various paragraphs of the petitioner's affidvit do not merit consideration and will not constitute sufficient cause for condoning the delay caused in filing the appeal. Respondents' counsel contended that there is inordinate delay in filing the appeal. It is true that after the application in forma pauperis was allowed, the summons for the suit was not accompanied by a copy of the plaint. This is not necessary since a copy of the plaint was served along with the application filed in forma pauperis. At any rate, the failure to serve a copy of the plaint along with the summons for the suit is not an illegality. On this basis, it was contended that the petition filed under Order IX R.13 CPC.-I.A. 2927 of S979 in the court below itself was barred as one filed more than 30 days after the passing of the exparte decree dated 17-11-1978. In the alternative, it was contended that even assuming, that the failure to serve a copy of the plaint along with the summons in the suit was an illegality so as to vitiate the subsequent proceedings and in this view I.A. 2927 of 1979 filed on 17-7-1979 within 30 days of the date of knowledge of the decree on 12-7-1979 can be said to be maintainable, the period from 12-7-1979 to 8-12-1981 (the date when the appeal was filed) the period during which proceedings to set aside the exparte decree by invoking Order IX R.13 CPC. was pending, cannot be condoned. On these premises, it was contended that there is no legal or factual basis to condone the delay caused in filing the appeal 2. We heard elaborately counsel for the petitioner, Mr. P. N. Ramakrishnan Nair, and counsel for the 1st respondent, Mr Abdul Azeez and also perused the relevant records. It is common ground that initially OP. No. 17 of 1975 was filed in forma pauperis. We heard elaborately counsel for the petitioner, Mr. P. N. Ramakrishnan Nair, and counsel for the 1st respondent, Mr Abdul Azeez and also perused the relevant records. It is common ground that initially OP. No. 17 of 1975 was filed in forma pauperis. Summons was sent to the 1st defendant therefor along with a copy of the plaint. The 1st defendant filed written-statement in February 1977 instead of filing objections to the pauper application. The application filed to file the suit in forma pauperis was allowed on 4-8-1977. The suit was numbered as OS. No. 170 of 1977. Once a pauper application is allowed, notice should be served on the defendant under Order V R.2 CPC. The copy of the plaint should accompany the summons. It was not so done. No fresh plaint-copy was served along with the summons sent for the suit. The petitioner's counsel contends that this is a fundamental and patent infirmity. On that basis, the exparte decree passed on 17-11-1978 is a nullity. So, the application to set aside the exparte decree passed on 17-11-1978 need not be filed within 30 days of the decree. I. A. No. 2927 of 1979 filed under Order IX R.13 CPC. to set aside the exparte decree within 30 days of the date of knowledge, 12-7-1979, was maintainable and proper. IA. No. 2927 of 1979 was filed on 17-7-1979. Before the disposal of the said petition, by way of abundant caution, the 1st defendant filed AS. No 88 of 1982, in this court on 8-12-1981 along with the above CMP. No. 5449 of 1982 to condone the delay in filing the appeal. The petition filed under Order IX R.13 CPC., i, e. IA. 2927 of 1979 was dismissed only on 7-9-1982. According to petitioner's counsel, the period during which the appellant (petitioner) was "bona fide" pursuing a statutory remedy, (the petition filed under Order IX R.13 CPC) and delay caused on that score deserves to be condoned. There is no legal bar thereto. 3. It is common ground that OP. No. 17 of 1975. the application filed praying to file the suit in forma pauperis, was allowed on 4-8-1977. The petitioner herein the appellant in the appeal (Ist defendant) filed the written-statement itself and not objections to OP. No. 17 of 1975 in February 1977. There is no legal bar thereto. 3. It is common ground that OP. No. 17 of 1975. the application filed praying to file the suit in forma pauperis, was allowed on 4-8-1977. The petitioner herein the appellant in the appeal (Ist defendant) filed the written-statement itself and not objections to OP. No. 17 of 1975 in February 1977. The question that falls for consideration is this: When an application filed in forma pauperis is allowed, should the summons in the suit to be sent, be accompanied by a copy of the plaint? The provisions of Order V R.2 and Order XXXIII R.8 are relevant in this regard, and they read as follows: "Order V R.2: Copy annexed to summons Every summons shall be accompanied by a copy of the plaint." Order XXXIII R.8: "Procedure if application admitted. Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee or fees payable for service of process in respect of any petition, appointment of a pleader or other proceeding connected with the suit." Construing the relevant provision of Order V R.2 CPC Janaki Amma, J., in Purushothaman Nair v. Venugopalan (1980 KLT. 451) held, that once an application to sue in forma pauperis is allowed, summons should be issued to the defendant after the suit is formally registered. We agree. We are of opinion that if that be the legal position, the summons in the suit shall be accompanied by a copy of the plaint That is in accord with Order V R.2 CPC. The said provision is mandatory. Summons sent without a copy of the plaint is invalid and will not satisfy the requirements of law. We hold that if the summons in the suit alone is sent without a copy of the plaint, there is no due "service of summons", as contemplated by Order V R.2 CPC. We are fortified in taking the above view on the basis of the decisions reported in S. C. Sarkar v Gosaidas Pal (AIR 1976 Calcutta 87), Purushothaman Nair v. Venugopalan (1980 KLT. We are fortified in taking the above view on the basis of the decisions reported in S. C. Sarkar v Gosaidas Pal (AIR 1976 Calcutta 87), Purushothaman Nair v. Venugopalan (1980 KLT. 451), Jagan Nath v. Tek Chand (1974) 76 Punjab Law Reporter 339 (343), M/s. Parma Nand Bhalothia & Sons v. M/s. Adarash Oil Mills (1976) 78 Punjab Law Reporter 485 (489) and Vedantha Gounder v. Dhanapal (1976) 89 Law Weekly 185 (Mad.). We hold that there is no due service of summons in the suit. Consequently, the court had no jurisdiction to proceed to decide the suit exparte. (See Jagan Nath's case (1974) 76 Punjab Law Reporter 339 (343)) On this basis the petitioner (1st defendant) was entitled to file T A 2927 of 1979 to set aside the exparte decree dated 17-11-1978 within 30 days of his knowledge of the decree on 12-7-1979. Since there was no due service of summons, as a sequel thereto, we have necessarily to hold that the Subordinate Judge was incompetent to pass the exparte decree dated 17-11-1978 The said decree was not passed in accordance with law. 4. We have to proceed on the basis that the summons in the suit was not duly served and so the exparte decree dated 17-11-1978 is patently infirm. If so, the petitioner was within time in filing the petition under Order IX R.13 CPC. to set aside the exparte decree, within 30 days of his knowledge (date of knowledge being 12-7-1979). The petition was filed on 17-7-1979 The only further question that arises for consideration is whether the delay caused in filing the above appeal on 8-12-1981. in this court, even before the final disposal by the lower court of the petition to set aside the exparte decree, can be condoned. Counsel appearing for the parties cited an array of decisions regarding the principles to be borne in mind in exercising the discretion vested in this court to condone the delay in filing the appeal under S.5 of the Limitation Act and also as to whether this court can take into account the pendency or prosecution of the proceedings under Order IX R.13 CPC. in the trial court to set aside the exparte decree to condone the delay caused in filing the appeal from the exparte decree itself. We shall only refer to a few relevant decisions. in the trial court to set aside the exparte decree to condone the delay caused in filing the appeal from the exparte decree itself. We shall only refer to a few relevant decisions. In State of West Bengal v. Howrah Municipality (AIR. 1972 SC. 749 (at page 755 Para.29 and 30)) the Supreme Court had occasion to consider the approach to be made in the matter of condoning the delay. The Supreme Court said: "In construing S.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making' an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree, as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot.be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial Justice. As has been observed by the Madras High Court in Krishna v. Chattappan (1890) ILR.13 Mad. 269, S.5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant 30. From the above observations it is clear that the words "sufficient cause" should receive a liberal construction as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party." Again in Sandhya Rani v. Sudha Rani (AIR. 1978 SC. 537. (at p. 542 Para.8) the Court has laid down as to what is "sufficient cause" within the meaning of S.5 of the Limitation Act and also indicated the guidelines for exercising the discretion vested in the Court. 1978 SC. 537. (at p. 542 Para.8) the Court has laid down as to what is "sufficient cause" within the meaning of S.5 of the Limitation Act and also indicated the guidelines for exercising the discretion vested in the Court. It is well-settled that the discretion vested in this Court to condone the delay is a "judicial discretion". The words "sufficient cause" occurring in S.5 of the Limitation Act should be liberally construed so as to advance substantial justice unless the petitioner is guilty of contumacious conduct. It appears to us that the circumstances or facts on the basis of which the petitioner prays for the condonation of delay should appear to the court "to be reasonable looking to all the facts of the case" It need not be that the petitioner should conclusively establish his case, The explanation offered should be reasonable, proper and acceptable. The fact that a wrong procedure was followed by the mistaken legal advice given to the party by his Advocate, that the party was residing far away from the Court and/or counsel, that there was no laches on the part of the party, that he believed bona fide the advice given to him and was not aware of the correct position, that the lawyer's advice was not unreasonable nor was be careless etc, are relevant aspects to be borne in mind. We perused the relevant averments contained in the detailed and exhaustive affidavits of the petitioner, the annexures thereto and the counter-affidavit filed by the Ist respondent, the nature of the controversy raised in the suit and its disposal, with care. We have also perused the copy of the affidavits filed in the lower court by two Advocates Sri Bhaskar and Sri O. Balanarayanan. We are of opinion that on the facts of this case the petitioner was "bona fide" pursuing a statutory remedy open to him under law in filing the petition under Order IX R.13 CPC. to set aside the exparte decree I.A. 2927 of 1979. Even before disposal of that petition on 7-9-1982, the petitioner has filed the appeal in this Court as AS. 88 of 1982 on 8-12-1981 from the exparte decree passed on 17-11-1978. It cannot be said that the petitioner was in any way negligent or his conduct was in any manner contumacious. Even before disposal of that petition on 7-9-1982, the petitioner has filed the appeal in this Court as AS. 88 of 1982 on 8-12-1981 from the exparte decree passed on 17-11-1978. It cannot be said that the petitioner was in any way negligent or his conduct was in any manner contumacious. In this context, the affidavits of the two Advocates, which have not been in terms denied, are very material. We are not inclined to accept the extreme contention of the respondent that the period during which the proceedings under Order IX R.13 CPC. was pending in the lower court should not at all be taken into account, in any case to condone the delay caused in filing the appeal from the exparte decree. It is true that the defendant against whom the exparte decree is passed has got more than one remedy. He could file an application to set aside the exparte decree under Order IX R.13 CPC. He could also file an appeal under S.96(2) of the CPC. He may in appropriate cases file a petition for review under Order XLVII R.1 CPC. It is open to him to pursue any one or more of the above. The fact that the defendant invoked the provisions of Order IX R.13 CPC. to set aside the exparte decree cannot by itself be a trammel or fetter to condone the delay caused in filing the appeal from the exparte decree itself. The only question, that arises is this:- In a case where the defendant has initiated proceedings under Order IX R.13 CPC in the lower court, and pending the same if the defendant files an appeal in this court (in the superior Court) from the exparte decree itself with a petition to condone the delay caused in filing the appeal, whether the time spent in pursuing the proceedings under Order IX R.13 CPC. c.m be condoned? It appears to us that there is no legal bar. It is true, that if there is a delay in filing the appeal, the time during which the proceedings under Order IX R.13 CPC. were pursued will be taken into account to condone the delay in filing the appeal, only if the court is convinced that proceedings under Order IX R.13 CPC. It is true, that if there is a delay in filing the appeal, the time during which the proceedings under Order IX R.13 CPC. were pursued will be taken into account to condone the delay in filing the appeal, only if the court is convinced that proceedings under Order IX R.13 CPC. were invoked and/or pursued "bona fide" and without laches In this case, we hold that the proceedings under Order IX R.13 were initiated and pursued "bona fide" and the petitioner is not guilty of laches. The extreme contention taken by the respondent that wherever an appeal is filed from an exparte decree, belatedly, the delay in filing the same cannot be condoned by reckoning the time during which proceedings to set aside the exparte decree were pursued, cannot be accepted. We understand the decisions brought to our notice in this connection, as laying down the proposition only to this extent, that in cases where the conduct of the petitioner is "blameworthy", or the allegations to set aside the exparte decree were found to be false, or in cases where the petition under Order IX R.13 CPC. was filed as part of "dilatory tactics" and in such cases after being worsted in the proceedings initiated under Order IX R.13 CPC. the party turns round and avails himself of an alternate remedy provided by the statute, by filing an appeal under S.96(2) of the CPC from the exparte decree by praying to condone the delay caused, then, in such circumstances, the Court will not take into account the time during which the proceedings under Order IX R.13 CPC. were pursued to condone the delay. The party has more than one remedy open to him. He elected to pursue one of them In that proceeding, his conduct was found by the Court to be blameworthy. Having been worsted, he cannot turn round and avail himself of another remedy by praying for the exercise of indulgence by the court, by condoning the delay in pursuing the latter remedy and if he does so, in such proceeding the court will refuse to exercise the indulgence in his favour by relying on his earlier conduct. This is not a case where the proceedings under Order IX R.13 CPC. were disposed of before the filing of the appeal. This is not a case where the proceedings under Order IX R.13 CPC. were disposed of before the filing of the appeal. The appeal has been filed months before the final disposal of the petition filed under Order IX R.13 CPC, This is not a case, where on the date when the appeal was filed the allegations made by the petitioner in proceedings initiated under Order IX R.13 CPC. was found to be "false" or his conduct found to be blameworthy or he adopted "dilatory tactics". The proceeding initiated under Order IX R.13 CPC. was still pending In the light of the above, we are of opinion, that the decisions reported in Jayandan Govindaru v. Kiruttaru (11 TLJ 509-FB), Ardha Chandra Rai Chowdhury v. Matangini Dassi (ILR, 23 Cal. 325), Abodh Bala Ghosh v. Radharani Dasi (ILR 1950(2) Cal. 252), M/s. Hassan Chand & Sons v. His Highness Maharaja Shri Gaj Singhji (1961 ILR. 11 Rajasthan 365), Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar (AIR. 1938 Bombay 459) Uppala Subbaiah v. Chitrala Narasimha (AIR. 1956 Hyderabad 161), Jagdish Kumar v. Harikishen Das (AIR 1942 Oudh 362), and M/ s. William Jacks v. Sumitra Sen (AIR. 1984 Cal. 12) cited by the respondent's counsel to substantiate his contention, do not support the extreme position taken up by him They are clearly distinguishable on facts and do not militate against the view expressed by us herein above., We may in this connection state that the decisions in Chekuri Ramachandra Raju v. Pathapati Satyanarayana Raju (1963 (1) Andhra Weekly Reporter 387) and Jokam Reddy v. Gokar Mallaiah (AIR 1977 Andhra Pradesh 367), brought to our notice by the petitioner's counsel are more relevant in the matter. To repeat, when AS. 88 of 1982 was filed in this Court the proceeding initiated by the petitioner under Order IX R.13 CPC. was still pending in the lower court and was not yet disposed of. In the decisions cited, the petitions filed under Order IX R.13 CPC were no longer pending and were disposed of long before the filing of the appeal and wherein the conduct of the petitioners were found to be blameworthy in one way or the other and in such circumstances, the Court refused to exercise the discretion to condone the delay. In other words, the time spent in, unsuccessfully and without bona fides, pursuing one of the remedies, was not condoned. In other words, the time spent in, unsuccessfully and without bona fides, pursuing one of the remedies, was not condoned. That is not the case here. 5. For the reasons stated above, we hold that there is sufficient cause for the petitioner in not filing the appeal within the time allowed by law. On the facts of this case, we are satisfied that the delay caused in filing the appeal (1026 days) deserves to be condoned. We hereby do so. CMP. No. 5449 of 1982 is allowed.