JUDGMENT : K.M. Mehta, J. M/s. Pravin Ratilal Share & Stock Brokers Ltd., the appellant (orig. defendant) has filed this appeal on 7.10.2006 against the judgment and order dated 10th March 2005 passed by the learned Chamber Judge, Court No.14, in Summary Suit No. 655 of 2004 below Exh.9. By the impugned judgment, the learned Judge has decreed the suit and directed that the defendant shall pay the decretal amount in sum ofRs.6,43,028/- with interest @ 12% p.a. From the date of the suit until its actual payment. 2. As there was a delay of 546 days in filing the appeal and therefore, Civil Application No.12817 of 2006 has been filed on 9th Nov.2006 for condonation of delay, in this behalf. In the application for condonation of delay, the Division Bench of this Court issued Rule on 13th Nov.2006 and Mr. Jigar M. Patel, learned advocate waived the service of rule on behalf of the respondent. 3. As regards condonation of delay is concerned, on behalf of respondent, one Shri Bhanubhai S.Patel has filed affidavit-in-reply dated 20th Nov.2006, contesting the application for condonation of delay. 4. I have heard Ms. Dharmishta Raval, learned advocate appearing on behalf of the appellant and Mr.D.C.Dave, learned advocate on behalf of respondent, who have made several submissions in this behalf. However, before I consider the application for condonation of delay, I would like to narrate relevant facts about the main appeal in this behalf. 5. Shri Bhanubhai S.Patel, respondent (original plaintiff) had filed Summary Suit No. 655 of 2004 on 27.2.2004 before the City Civil Court, Ahmedabad, claiming Rs. 6,43,028/- from M/s. Pravin Ratilal Shares & Stock Brokers Ltd.- original defendant. 5.1 In the suit, the plaintiff has contended that the original defendant - M/s. Pravin Ratilal Shares & Brokers Ltd., is a Company registered under the provisions of the Indian Companies Act with its Registered Office at Ahmedabad. It has been contended that the plaintiff used to purchase and sell shares of different Companies through the defendant on different dates. The plaintiff has also submitted that defendant has maintained plaintiff's Account No. B-122 in defendant's book of account and amount of shares sold by plaintiff has been credited to the said account. At the foot of the said account as on 31.3.2001 an amount of Rs. 4,78,836/- was found due and payable by the defendant to the plaintiff. The plaintiff has also submitted that defendant has maintained plaintiff's Account No. B-122 in defendant's book of account and amount of shares sold by plaintiff has been credited to the said account. At the foot of the said account as on 31.3.2001 an amount of Rs. 4,78,836/- was found due and payable by the defendant to the plaintiff. 5.2 It was contented that the plaintiff requested and demanded the aforesaid amount from the defendant, the the defendant failed and neglected to make the same to the plaintiff with interest @ 12% p.a. 5.3 Thereafter, the plaintiff addressed a notice to the defendant on 10.1.2004 through his Advocate and called upon the defendant to make payment of the outstanding amount of Rs. 4,74,836/- with accrued interest @ 12% from 4.7.2001 onwards. It is the case of the plaintiff that the defendant has neither replied to the said notice nor paid any amount. 5.4 In view of the same, the plaintiff filed the aforesaid Summary Suit under Order 37 Rule 2 of the CPC on 27.2.2004 praying for a decree forRs.4,74,836/- being the principal amount found due and payable by the defendant to the plaintiff with interest @ 12% being Rs.1,66,191/- as unpaid outstanding amount and thus claimed total amount of Rs. 6,43,028/-. 5.5 After the suit was filed, the City Civil Court issued summons on 5.4.2004 to the defendant. It appears that the same was served upon the defendant and the defendant appeared before the City Civil Court through his Advocate. 5.6 However, it appears that the defendant had not filed any reply as contemplated under Order 37 of the Code, particularly Rule 1 and 2 as well as Rule 3. Rule 3 provides for the procedure for the appearance of defendant. 5.7 As the defendant failed and neglected to make the payment to the plaintiff, the plaintiff filed Summons for Judgment at Exh.9 on 16.4.2004. In the Summons for Judgment, it has been stated that in view of the aforesaid circumstances, the defendant has no valid and bonafide defence to defend this suit and there is no triable issue and hence this is a fit case wherein straight way decree is required to be passed. It has been further stated that the City Civil Court has jurisdiction to entertain the suit under Order 37 of the Code. It has been further stated that the City Civil Court has jurisdiction to entertain the suit under Order 37 of the Code. 5.8 The said Summary Suit was thereafter placed for hearing before the Court of the learned Chamber Judge, Court No.14, and the learned Chamber Judge passed a short order as under: "Heard the Ld. advocate for the plaintiff. Though, the defendant has entered appearance purses and filed vakalatnama but has not filed any leave to defend application. Under this circumstances, the averments made by the plaintiff in support of the claim made in the plaint along with the documents annexed with the plaint remain unchallenged and un-controverted. Therefore, there is no reason to refuse summons for judgment. Further, on perusal of the record it appears that the suit is well within time and this court has jurisdiction to entertain the present suit under the provisions of Order 37 of the CPC. The plaintiff has claimed interest @ 12% p.a. From the defendant. It seems that there is no contract for interest to be paid on outstanding amount as and when becomes due and payable. However, considering the nature of the suit transaction, the plaintiff is entitled to get interest @ 12% p.a. From the defendant. Under the circumstances, I pass the following final order: Order The suit is decreed with cost. The defendant shall pay the decretal sum of Rs.6,43,028/- with interest @ 12% p.a. From the date of the suit until its actual payment. Decree be drawn accordingly." "Order XXXVII - Summary Procedure 1.Courts and classes of suits to which the Order is to apply.- (1) This Order shall apply to the following Courts, namely:- (a) High Courts, City Civil Courts and Courts of Small Causes; and (b) Other Courts: Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper. (2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely:- (a) suits upon bills of exchange, hun-dies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising.- (i) on a written contract, or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. 2. Institution of summary suits.- (1) A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,- (a) a specific averment to the effect that the suit is filed under this Order, (b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and (c) the following inscription, immediately below the number of the suit in the title of the suit, namely:- (2) The summons of the suit shall be in Form No.4 in Appendix B or in such other Form as may, from time to time, be prescribed. (3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith." 5.9 Being aggrieved and dissatisfied with the aforesaid order dated 10.3.2005, the defendant filed Misc. Civil Application No. 147 of 1995 before the City Civil Court, Ahmedabad. In the said application it was submitted that on 10.3.2005, the advocate appearing on behalf of the appellant had some personal difficulty. The advocate was to make an application seeking for adjournment. Civil Application No. 147 of 1995 before the City Civil Court, Ahmedabad. In the said application it was submitted that on 10.3.2005, the advocate appearing on behalf of the appellant had some personal difficulty. The advocate was to make an application seeking for adjournment. However, the appellant's advocate had to all of a sudden leave Ahmedabad and he could not make an application for adjournment. It was submitted that the civil suit should be restored and the ex-parte decree be set aside. Along with the said application, the affidavit of Shri Pankaj K. Pancholi, learned advocate dated 19.12.2005 has also been filed in this behalf in support of their contention. 5.10 The aforesaid Misc. Civil Application was heard by the learned City Civil Judge, Court No.13, Ahmedabad, which came to be dismissed by his judgment and order dated 13.9.2006. 6. It was also stated that when the appellant challenged the order dated 13.9.2006 dismissing Misc. Civil Application No.147 of 2005, for restoration of the same, the appellant filed petition being Special Civil Application No. 25686 of 2006 before this Court on 1.12.2006, and this Court passed the following order on 8.12.2006. "Oral Order: 6.1 M/s. Pravin Ratilal Share & Brokers Ltd., the petitioner has filed this petition under Article 227 of the Constitution of India with prayer to quash and set aside the order passed in Misc.Civil Application No.137 of 2005 on 13.9.2006, wherein the learned trial Judge has dismissed the application. The said application has been preferred by the petitioner for restoration of the ex parte decree passed against the petitioner on the ground that his lawyer did not remain present due to death of his near relative. Heard Mr. D.N. Raval, learned advocate for the petitioner. He states that the suit of the plaintiff - respondent herein has been filed in connection with sale and purchase of the shares of Great Eastern Shipping Ltd., as well as Hindustan Petroleum. The suit is barred by the provisions of Section 20A of the Securities and Exchange Board Act, 1992, which provides that the Civil Court has no jurisdiction to entertain the suit. He has stated that in spite of this fact, in Summary Suit No.655 of 2005, the trial Court earlier by its order dated 10.3.2005 pleased to pass decree and directed the petitioner to pay a sum of Rs. 6,48,028/- with 12% interest to the respondent. He has stated that in spite of this fact, in Summary Suit No.655 of 2005, the trial Court earlier by its order dated 10.3.2005 pleased to pass decree and directed the petitioner to pay a sum of Rs. 6,48,028/- with 12% interest to the respondent. After that, the application was filed by the petitioner along with affidavit of learned advocate Mr. Pankaj K. Pancholi, which shows that due to personal work, he did not appear on 10.3.2005, the said matter kept for judgment and in spite of this fact, the learned trial Judge taken technical view in the matter on restoration and did not see the merits of the case under Section 20A of the Securities and Exchange Board Act, 1992. Hence, RULE returnable on 18th December 2006 and it is hereby restrained the respondent from withdrawing Rs.7,31,107.0 deposited by the petitioner before the Registrar at the City Civil Court, Ahmedabad." 6.1 A Thereafter on 29th Nov. 2006, the Division Bench of this Court, vacated the stay granted earlier and the Civil Application for condonation of delay was posted for further hearing. 6.2 In the Special Civil Application No. 25686 of 2006, on 8th Dec.2006, this Court issued Rule returnable on 18th Dec.2006 restraining the present opponent from withdrawing Rs.7,31,108/- deposited by the present appellant before the City Civil Court. 6.3 Thereafter on 23rd March 2007, the appellant filed a note before the Registrar requesting that the present First Appeal and the Special Civil Application No. 25686 of 2006 be heard together. Subsequently, in view of the order of the Hon' ble Chief Justice, these matters have been placed before this Court. 6.4 No doubt, condonation of delay is a discretion award-able to the Court and the Court should take a liberal approach in this behalf. Whereas, in this case, it has been stated that there is a gross delay in filing the First Appeal and this Court finds it not necessary to condone the delay. 6.5 At the time of hearing of the appeal, Ms.D.N.Raval, learned advocate appearing for the appellant has submitted that though the purshis has been submitted, in the facts and circumstances of the case, the present application for condonation of delay filed under Section 5 of the Limitation Act, the Court should take a liberal approach in this behalf. 6.5 At the time of hearing of the appeal, Ms.D.N.Raval, learned advocate appearing for the appellant has submitted that though the purshis has been submitted, in the facts and circumstances of the case, the present application for condonation of delay filed under Section 5 of the Limitation Act, the Court should take a liberal approach in this behalf. The learned advocate has relied upon the decision of the Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and anr. v. Mst. Katiji and ors., reported in AIR 1987 SC 1353 , particularly paragraph No.3 on page 1354, which is reproduced as under: "3...... 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 day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's 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 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. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal." 6.6 The learned advocate has also relied upon the Division Bench decision in the case of Special Land Acquisition Officer, Godhra v. Lilavatiben Kodar Rachhod and ors., reported in 2002 (3) GLH 226 as well as the decision of the Division Bench in the case of C.S. Jardosh and ors. v. Somabhai Ranchhodbhai Patel, reported in 2006(2) GLH 339 . v. Somabhai Ranchhodbhai Patel, reported in 2006(2) GLH 339 . In the case of C.S. Jardosh, (supra), this Court has held that it is settled law that the legislature has conferred power to condone delay by enacting Sec.5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life-purpose for the existence of the institution of Courts. This Court has relied upon the judgment in the case of Collector, Land Acquisition, Anantnag v. Katiji (supra) and also held that liberal approach has to be taken in this behalf. 6.7 The learned advocate has further stated that it is no doubt true that the Court has to consider the merits of the matter but the fact is that the plaintiff has filed the suit for claiming the amount in connection with the Shares purchased by the plaintiff from the defendant. The learned advocate submitted that in spite of the provisions of Sec.20A of SEBI Act, which specifically ousts the jurisdiction of the Civil Court, an appeal can be preferred to the Securities Appellate Tribunal and through the Stock Exchange the matter statutorily has to be referred to arbitration and all these aspects have not been considered by the trial Court. 7. Being aggrieved and dissatisfied with the aforesaid judgment and decree dated 10.3.2005 passed by the learned trial Judge, the present appeal has been filed on 7.10.2006 along with Civil Application No.11730 of of 2006 for stay. The First Appeal has been filed on the ground that the City Civil Court has no jurisdiction to pass the judgment and decree in view of Section 20A of the Securities and Exchange Board of India Act, 1992 (hereinafter referred to as 'SEBI Act') which bars the jurisdiction of the Civil Court. 8. When the matter was placed before the Division Bench of this Court on 10.10.2006, notice returnable on 6th Nov.2006 and also granted ad-interim relief against the withdrawal of the sum deposited before the Civil Court. On 6th November 2006, the opponent remained present and opposed the grant of stay and submitted that there was a delay in filing the present appeal. 9. On 6th November 2006, the opponent remained present and opposed the grant of stay and submitted that there was a delay in filing the present appeal. 9. Thereafter, the present appellant filed Civil Application for condonation of delay of 546 days in filing the present appeal. As the present opponent filed a purshis before the City Civil Court for withdrawal of the decretal amount which has been deposited before the City Civil Court, the present appeal has been filed. 10. The opponent opposed the condonation of delay application on the ground that the provisions of Section 14 of the Limitation Act are not available to the appellant as per the decision of the Hon' ble Apex Court in the case of Bhanu Kumar Jain v. Archana Kumar, reported in AIR 2005 SC 626 and hence, the delay cannot be condoned. 11. On the other hand, Mr. Dhaval Dave, learned advocate appearing on behalf of the respondent has opposed the said application. He has invited my attention to the affidavit-in-reply filed by the opponent opposing the condonation of delay application filed by the applicant. He has pointed out and submitted that being aggrieved and dissatisfied with the decree dated 10.3.2005, appeal was filed on 7.10.2006 without making an application for condonation of delay. When it was pointed out that there is a delay of 546 days, the present applicant filed the separate Civil Application for condonation of delay. As such, the conduct on the part of the applicant deserves to be deprecated. 11.1 It has been further submitted on behalf of the opponent that the only ground which in the application for condonation of delay was that the period during which the Misc. Civil Application was filed and was pending for setting aside ex parte decree should be excluded in computing the period of limitation. There is no provisions either in CPC or in Limitation Act, 1963, whereby the time spent in pursuing a remedy for setting aside the ex parte decree is excluded while computing the period of limitation for filing an appeal against ex parte decree. It has been submitted that the person against whom an ex parte decree is passed has two remedies, viz. To file an application for setting aside the ex parte decree and/or to prefer an appeal against the ex parte decree. It has been submitted that the person against whom an ex parte decree is passed has two remedies, viz. To file an application for setting aside the ex parte decree and/or to prefer an appeal against the ex parte decree. The person against whom the ex parte decree is passed can avail of afore-stated remedies simultaneously, i.e. He can prefer an application for setting aside the ex parte decree and at the same time he can prefer an appeal against the ex parte decree. If the person against whom an ex parte decree is passed has filed an application for setting aside the ex parte decree, he has not to wait for filing an appeal against ex parte decree till his application for setting aside the ex parte decree is decided. Therefore, it is submitted that the applicant could have preferred an appeal within a period of 30 days from 10.3.2005 on which an ex parte decree was passed against him. As a matter of fact, the applicant, having preferred the remedy of submitting an application for setting aside the ex parte decree under Order 37, Rule 4 of CPC and thereby not preferring along with same, an appeal against the ex parte decree, has waived its right to prefer to prefer an appeal and hence, the only remedy available to the applicant was to challenge the said order dated 13.9.2006 passed by the City Civil Court, Ahmedabad in Misc.Civil Application No.147 of 2005, whereby the application of the applicant under Order 37 Rule 4 was rejected by the City Civil Court, Ahmedabad. 11.2 It was further submitted that it was not a case of the applicant that the applicant was not aware about the passing of ex parte decree in this behalf. It was further submitted that the explanation coming from the applicant for condoning the delay, i.e. The time taken for preferring such application for setting aside the ex parte can never be a ground for condonation of delay. 11.3 The applicant has filed rejoinder on 16.3.2007 in this behalf. It was further submitted that the explanation coming from the applicant for condoning the delay, i.e. The time taken for preferring such application for setting aside the ex parte can never be a ground for condonation of delay. 11.3 The applicant has filed rejoinder on 16.3.2007 in this behalf. In the rejoinder, it was submitted that when the City Civil Court issued summons, the applicant on receipt of the same, handed over the papers of the case to his advocate for the purpose of defending him before the City Civil Court as the amount claimed by the opponent was not payable by the applicant nor the City Civil Court had the authority or jurisdiction to entertain the suit. 11.4 It has been further submitted that the applicant was informed by his advocate that he need not come to the Court and that the applicant will be informed when his presence will be necessary in the Court. The applicant has also handed over the draft affidavit which was to be filled on behalf of the applicant before this Court. Unfortunately, on 10.3.2005, the advocate of the applicant could not remain present on account of sudden demise of his relative occurred on that time. 11.5 in the rejoinder, it has been further submitted that in the Special Civil Application No. 25686 of 2006, the opponent has filed a reply whereby it has been inter alia submitted that Special Civil Application is not maintainable on the ground that the First Appeal No. 3844 of 2006 is pending before this Court and the same cannot be proceeded ahead as long as the First Appeal filed by the present applicant is not decided. In other words, in Special Civil Application No.25686 of 2006, it is the stand of the opponent that as the First Appeal is pending, the writ petition cannot be proceeded ahead and in the First Appeal, it is the stand of the opponent that the delay cannot be condoned and the First Appeal preferred by the applicant is not maintainable. The attempt of the opponent is to try and ensure that the present applicant is left without a remedy and the ex parte decree obtained by the opponent is not set aside. The attempt of the opponent is to try and ensure that the present applicant is left without a remedy and the ex parte decree obtained by the opponent is not set aside. 11.6 It is therefore submitted that the First Appeal has been filed because the applicant believes that the City Civil Court has no jurisdiction to entertain the suit as a result of the provisions of Section 20A of the SEBI Act and therefore, the decree passed is without jurisdiction, illegal and deserves to be set aside. Section 20A of SEBI Act is reproduced as under: "20A. Bar of Jurisdiction - No order passed by the Board of the adjudicating officer under this Act shall be appeal able except as provided in section 15T or section 20 and no civil court shall have jurisdiction in respect of any matter which the Board or the adjudicating officer is empowered by, or under, this Act to pass any order and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any order passed by the Board or the adjudicating officer by, or under, this Act." 11.7 The opponent in his reply has submitted that the delay in preferring the appeal cannot be condoned as the CPC or the Limitation Act does not have any provision for excluding the time spent in pursuing a legal remedy for setting aside the ex parte decree. It is submitted that the same is denied and this Court has discretionary jurisdiction to condone the delay in the facts and circumstances of the present case. It is denied that the present applicant has waived his right to prefer an appeal and that it is not open to the applicant to prefer this appeal and in view of the above, it is submitted that Misc. Civil Application for condonation of delay deserves to be granted. 11.8 On the other hand, Mr. Dhaval Dave, learned advocate appearing on behalf of the respondent has invited the attention of this Court to the judgment of the Hon'ble Apex Court in the case of Bhanu Kumar Jain v. Archana Kumar and anr., reported in AIR 2005 SC 626 . In that case, in paragraph Nos.25 and 26, the Hon'ble Apex Court has observed as under: "25. In that case, in paragraph Nos.25 and 26, the Hon'ble Apex Court has observed as under: "25. In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date." 26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, the Explanation 1 appended to said provision does not suggest that the converse is also true." 11.10 He has further relied upon the judgment of this Court in the case of Harishbhai Chunilal Shah, v. Nalinkumar Champaklal Shah and ors., reported in AIR 1995 Gujarat 197. In that case, in paragraphs 11 and 12, this Court has held as under: "11. It may also note here at this stage that the explanation to O.9, R.13, specifically contemplates that after the ex parte decree which is sought to be set aside by making an application under O.9, R.13, has already been challenged by way of an appeal, the application contemplated under R.13 would be barred. This specific provision mad by the legislature clearly indicates that the remedy available to a party under O.9 R.13 and the remedy available under S.96 of CPC are certainly two different and distinct remedies, but are not intended to confer any right as to the exercise thereof in succession. They are in the nature of independent, but alternative remedies. This specific provision mad by the legislature clearly indicates that the remedy available to a party under O.9 R.13 and the remedy available under S.96 of CPC are certainly two different and distinct remedies, but are not intended to confer any right as to the exercise thereof in succession. They are in the nature of independent, but alternative remedies. If an appeal under S.96 of the CPC has already been filed, the specific provision by way of an explanation of R.13 would bar an application under the said rule. To my mind it is equally clear that if an application under O.9, R.13 is pursued, and the same ultimately fails, an appeal under S.96 of CPC would also be barred. I, however, do not record this by way of laying down a proposition of law, inasmuch as the said question does not arise in the context of the facts of the present case. The maintainability of otherwise of the appeal under S.96 of the CPC would be a relevant question, only after the delay is condoned; until then, such an appeal does not exist in the eye of law. 12. What is material is that the petitioner pleads that the delay in filing the appeal occurred merely because he was pursuing the statutory remedy in which he ultimately failed, the same would constitute sufficient ground for condonation of delay. As stated hereinabove, this contention must fail." 12. Ms. Raval, learned advocate, on the other hand, submitted that in this case, it is no doubt true that originally, the Trial Court passed the ex parte decree on 10.3.2005 and thereafter an application under Order 37 Rule 4 of the Code was filed. However, ultimately on 23.9.2006, the application filed under Order 37 Rule 4 of the Code has been rejected by the trial Court. The present appeal has been filed challenging the decree dated 10.3.2005 (without hearing the defendant) and she has submitted that application cannot be filed under Order 9 Rule 13 but has to be filed under Order 37 Rule 4 as the suit is a Summary Suit and that absence of lawyer is adequate ground for setting aside the ex parte decree. She pressed in service the affidavit of the learned advocate also. Therefore, the judgments cited by learned advocate Mr.Dhaval Dave, learned advocate will have no applicability in this behalf. 13. She pressed in service the affidavit of the learned advocate also. Therefore, the judgments cited by learned advocate Mr.Dhaval Dave, learned advocate will have no applicability in this behalf. 13. The learned advocate has submitted that as far as the judgment of the Hon'ble Apex Court in the case of Bhanu Kumar Jain (supra) it was a case under Order 9 Rule 13. However, in the present case, when the present appellant had filed the application before the Civil Court under Order 9 Rule 13, the present opponent had very vehemently opposed the same and submitted that the application under Order 9 Rule 13 is not maintainable and the application under Order 37 Rule 4 is maintainable. Having taken up the contention before the City Civil Court, it is now not open to the opponent to rely on a judgment which deals with the provisions of Order 9 Rule 13 and say that the same is pari-materia with Order 37 Rule 4. Further, the Hon' ble Apex Court was concerned in that case with the principles of "issue estoppal" and in the said case, the matter had been agitated right upto the Hon'ble Supreme Court. Observations and Findings: 14. As regards condonation of delay is concerned, I have given my anxious consideration in this behalf and I have also considered the principles enunciated in the judgments in the cases of Collector, Land Acquisition, Anantnag v. Mst. Katiji (supra), Special Land Acquisition Officer, Godhra v. Lilavatiben Kkodar Ranchhod (supra) and (ii) C.S. Jardosh (supra). Along with the application, the affidavit of learned advocate Shri Pankaj K. Panchli, dated 19.12.2005 has also been filed. In view of the same, when in this case from the facts which are set out earlier, it emerges that in the Summary Civil suit filed in February 2004, the Court had issued Summons on 5.4.2004 only and though the defendant appeared, but did not file reply and therefore, the trial Court passed ex parte decree without hearing the defendant in this behalf. The said decree has been challenged before this Court by the appellant and also filed application for restoration of the said decree and ultimately on 23.9.2006, the said application has been treated to be filed under Order 3 Rule 4 of the Code and has been rejected. The said decree has been challenged before this Court by the appellant and also filed application for restoration of the said decree and ultimately on 23.9.2006, the said application has been treated to be filed under Order 3 Rule 4 of the Code and has been rejected. 14.1 In the affidavit filed by Shri Pankaj K.Pancholi, learned advocate dated 19.12.2005 he has stated that he was to file the reply on 10.3.2005. However, it could not be filed due to some unavoidable circumstances and he could also not file application for adjournment of the case also. Ultimately, the decree has been passed without effective reply being filed by the defendant in this behalf. The appellant has also filed an application on 10.3.2005 stating that they were out of station and that the advocate also did not inform the defendant and hence the ex parte decree has been passed. 14.2 The learned advocate has submitted that in this case, the defendant was not at fault if the advocate had not informed, otherwise definitely the reply could have been filed. She has submitted that the ex parte decree has been passed because of the advocates inaction and because of that, the party should not be put to suffer. In support of the same, learned advocate has relied upon the decision of the Hon'ble Apex Court in the case of Rafiq and anr. v. Munshilal and anr., reported in AIR 1981 SC 1400 . In paragraph No.3 of the said judgment, the Hon'ble Supreme Court has observed as under: "3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select hi advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest." 14.3 It may be noted at this juncture that, it is relevant to consider the facts of the case of Bhanu Kumar Jain (supra) which has been cited before this Court. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest." 14.3 It may be noted at this juncture that, it is relevant to consider the facts of the case of Bhanu Kumar Jain (supra) which has been cited before this Court. In that case, one Shri N.N. Mukherjee was the owner of the premises in suit, who died leaving behind his wife Smt. Suchorita Mukherjee (original defendant No.1), son Shri P.P. Mukherjee (original plaintiff) and daughter Smt. Archana Kumar (original defendant No.2). The family is said to be governed by Dayabhag School of Hindu Law. The original plaintiff filed a suit for partition in the year 1976. The original defendants filed their written statements. Respondent No.2 herein, Surender Nath Kumar who is husband of Smt. Archana Kumar, respondent No.1 herein also filed a written statement and counterclaim by setting up a plea of mortgage by deposit of title deeds in respect of property in suit said to have been created by his mother in law (original defendant No.1). 14.4 In that case, having regard to the rival contentions, the learned trial Judge has framed as many as five issues for determination. An additional issue was also raised and ultimately, the trial Court examined the parties. The matter was posted on 3.8.1985, but nobody was present but the plaintiff's advocate was present. Though a request was made for adjournment on the ground that the defendant could not come from Delhi where-after an application was filed by the plaintiff that he had closed his evidence. It was further contended that the burden to prove the additional issue rested on the defendant and if any evidence is to be adduced, he should adduce evidence first. It appears that the plaintiff was also not cross examined by respondent No.1. As the plaintiff was attending to the Court proceedings from Calcutta, a cost ofRs.200/- was imposed on the defendants. It was further directed that if the costs were not paid, the right of cross examination will be closed. The matter was again posted on 7.10.1985 on which day again the counsel for the defendant was not present. Even the costs awarded against them was not paid. It was further directed that if the costs were not paid, the right of cross examination will be closed. The matter was again posted on 7.10.1985 on which day again the counsel for the defendant was not present. Even the costs awarded against them was not paid. Having regard to the fact that the respondent No.1 was absent and did not cross examine the plaintiff; the case was directed to be posted ex parte against her and the right of cross examination was forfeited. The case was fixed for final argument on 11.10.1985. Yet again, on 11.10.1985 the plaintiff was present but the defendants were not. Allegedly, owing to strike of the advocates the case was adjourned for 14.10.1985. On 14.10.1985 the learned Judge fixed case for 25.10.1985 for delivery of judgment. The judgment, however, was not pronounced on 25.10.1985. However, on the next date, viz. 30.10.1985, an application was filed by the respondents purported to be in terms of Order 9, Rule 7 of Code for setting aside the order dated 7.10.1985 whereby the suit was posted for ex parte hearing. The said application was rejected by an order dated 31.10.1985. A preliminary decree for partition, thereafter was passed on 1.11.1985 in favour of the plaintiff. 14.5 An application under Order 9, Rule 13 of Code was filed by the respondents on 5.11.1985 which was marked as Misc. Judicial Case No.30/1985. The said application was dismissed by an order dated 15.1.1986 by the 6th Additional District Judge, Jabalpur holding that the defendants failed to prove good and sufficient cause for their absence on 7.10.1985. An appeal marked as Misc.Appeal No.19/86 there-against in terms of Order 43 Rule 1(d) of the Code was filed on 30.1.1986 which was also dismissed. 14.6 It appears that a Civil Revision Application was also filed challenging the order dated 31.10.1985 whereby and where-under the respondents' application under Order 9, Rule 7 of the Code was dismissed. The said petition was also dismissed. Yet again, a regular First Appeal being No. 109/86 was filed in the High Court. It is contended that the respondent No.2 did not file any appeal against the rejection of his counter claim. The said Misc. Appeal No.19/86 was dismissed by an order dated 5.4.1994 where-against a Special Leave Petition was filed which also came to be dismissed as withdrawn by an order dated 16.12.1994. It is contended that the respondent No.2 did not file any appeal against the rejection of his counter claim. The said Misc. Appeal No.19/86 was dismissed by an order dated 5.4.1994 where-against a Special Leave Petition was filed which also came to be dismissed as withdrawn by an order dated 16.12.1994. 14.7 In the meanwhile, it appears that, the original plaintiff transferred his right title and interest in favour of the present appellant. The plaintiff died on 1.5.2001. By reason of the impugned judgment, the High Court allowed the First Appeal No.109/86 holding: (i) That the Trial Judge has grossly erred in law by proceeding ex parte against the defendants. (ii) The learned counsel further canvassed that the appellant No.2 Surendra Kumar, filed the counter claim and therefore, it was incumbent upon the learned trial Judge to decide the counter claim filed by the defendant in view of the mandate contained in Order 8 Rule 6(1) of the Code.". 15. In the above context, observations made by the Hon' ble Supreme Court, in paragraph Nos.25 and 26 which I have cited earlier hereinabove, will not be applicable in the present case. 16. In view of the same, the Hon' ble Supreme Court has considered the provisions of Order 9 Rule 13 of the Code and the peculiar facts and circumstances of the case, and therefore, the judgment of the Hon' ble Supreme Court is quite distinguishable in the facts of the present case. In that matter, the Hon' ble Supreme Court was also concerned with the principle of "issue of estoppal" and condonation of delay in filing the matter which is also not applicable in the facts of the present case. 17. The learned advocate has also submitted that the Civil Court has no jurisdiction and therefore, the principle of "issue estoppal" will not be applicable in this behalf. 18. As regards the judgment of this Court in the case of Harishbhai Chunilal Shah (supra) is concerned, the Court was concerned with a case where an ex parte decree was sought to be set aside by filing an application under Order 9 Rule 13 of the Code. This application was rejected on merits, and thereafter an appeal was preferred which was subsequently withdrawn. As a result, the decree was accorded finality. This application was rejected on merits, and thereafter an appeal was preferred which was subsequently withdrawn. As a result, the decree was accorded finality. In the present case, the Misc.Civil Application was not filed under Order 9 Rule 13, but under Order 37 Rule 4. Hence, the decree has not yet reached finality and therefore, the decision of the learned Single Judge of this Court is quite distinguishable on the facts of the case. 19. This Court considered decision of the Hon' ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and anr. v. Mst. Katiji(supra) as well as the two judgments of this Court in the cases of (i) Special Land Acquisition Officer, Godhra v. Lilavatiben Kkodar Ranchhod (supra) and (ii) C.S. Jardosh (supra), and contended that the application for condonation of delay is the discretion award-able to the to the Court. The same is to be examined liberally. 20. In view of the above judgment in the case of Rafiq (supra) as well as the judgments referred to earlier and the affidavit filed by the learned Advocate due to his unavoidable circumstances in filing reply, the delay caused in filing reply in the application for condonation of delay is sufficiently explained. Hence, the delay is condoned. This application is accordingly allowed with costs which is quantified atRs.200/- (Rupees Two hundred only). Rule is made absolute accordingly. 21. At this stage, Mr. Dhaval Dave, learned advocate prays that this order may be stayed for some time. Considering the facts and circumstances of the case, I do not find any reason to grant the same and the prayer is refused.