ORDER : 1. This is an appeal preferred by the appellant under Section 19 of the Family Courts Act, 1984 challenging the judgment and order dated 26th August, 2019 passed by the Family Court No. 6, Ahmedabad in Civil Misc. Application No. 51 of 2018, by which, the application for condonation of delay of 203 days in filing the application seeking restoration of the proceedings of Family Suit No. 775 of 2009 has been rejected. 2. The facts, giving rise to the present appeal, may be summarized as under: 2.1 The respondent had filed a Regular Civil Suit No. 720 of 2007 against the applicant in the Court of the learned Principal Senior Civil Judge, Ahmedabad (Rural), inter-alia, seeking to restrain the appellant, his servant etc. from selling or transferring the Flat No. F/303, Asavari Complex, Opposite Karnavati Club, Satellite, Ahmedabad along with other ancillary reliefs. 2.2 An application for interim injunction against the appellant was also made at the time of filing of the suit. The appellant was served with the summons of the said proceedings and he had appeared in the matter through his advocate. The said suit was transferred to the Family Court, Ahmedabad and was renumbered as Family Suit No. 775 of 2009. The appellant was once again served with the process in Family Suit No. 775 of 2009 and he appeared through his advocate. He contested the suit by filing the written statement vide Exh.15 on 12th April, 2010 and passed a purshis Exh.33 on 18th July, 2013 where he declared that he would not transfer the suit property without prior permission of the court. Accordingly, the Exh.6 was disposed of. 2.3 On 21st February, 2015, the Family Suit No. 775 of 2009 was dismissed for default as neither the respondent nor her advocate remained present. The appellant was intimated of the said dismissal by his learned advocate. The appellant visited the suit property in February, 2018 and learnt that the respondent had approached the Society to get the floor plans of the suit property. It was the matter of shock to him as he believed that after the dismissal of the family suit, the respondent had given up the claims in respect of the suit property. The appellant visited the suit property in February, 2018 and learnt that the respondent had approached the Society to get the floor plans of the suit property. It was the matter of shock to him as he believed that after the dismissal of the family suit, the respondent had given up the claims in respect of the suit property. The appellant intimated his advocate and also had personally visited the Family Court at Ahmedabad and inspected the Family Suit No. 775 of 2009 on 06.03.2018 and 07.03.2018, upon which, he realized that an ex-parte judgment and decree was passed by the Family Court in Family Suit No. 775 of 2009 on 1st August, 2017. The appellant was under a bona-fide belief that after the dismissal of the Family Suit No. 775 of 2009 on 21st February, 2015, the respondent had not taken any steps for restoration of the proceedings and had waived and extinguished all her rights. 2.4 The respondent through her power of attorney had filed Civil Misc. Application No. 35 of 2015, seeking to restore the family suit on 4th April, 2015. It is the say of the appellant that he had not been validly served the process of Civil Misc. Application No. 35 of 2015 and consequently, an ex-parte order dated 28th October, 2016 was passed and thereby the Family Suit No. 775 of 2009 was restored. After the said suit was restored, the respondent did not make any attempt to effectively serve the notice and summons to the appellant. The respondent had attempted to show that the endorsement made by the bailiff over the process below Exh.36 in Family Suit No. 775 of 2009 is reflective of the fact that he was not served properly as the bailiff did not clearly state as to in which block the service was attempted. The RPAD was sent on an address separate from the address mentioned in the cause title of the suit and it came with an endorsement unclaimed. No attempt was made by the respondent for service upon the appellant as is being averred and alleged. It is further his say that subsequent to the restoration, it was imperative for the appellant to be served afresh the notice of the proceedings and the respondent had not moved any application for service at the address of the appellant that was mentioned in the cause title. It is further his say that subsequent to the restoration, it was imperative for the appellant to be served afresh the notice of the proceedings and the respondent had not moved any application for service at the address of the appellant that was mentioned in the cause title. It is further his say that the respondent had filed her affidavit-in-chief without serving a copy to the appellant and the respondent had not even bother to bring on record a copy of the affidavit-in-chief. This, according to the appellant, is not a case of irregularity of summons but a complete absence of valid service of summons and, therefore, the delay in filing the Civil Misc. Application No. 51 of 2018 is a technical delay and, hence, it is urged to quash and set aside the judgment and order dated 26th August, 2019 passed in Civil Misc. Application No. 51 of 2018. 2.5 This is an application given under Order 9 Rule 13 read with Section 151 of the CPC, seeking to set aside the ex-parte order dated 28th October, 2016 passed in Civil Misc. Application No. 35 of 2015 as also for setting aside the order dated 1st August, 2017 passed in Family Suit No. 775 of 2009 with a further request to restore the family suit and to fix a date for cross-examination of the respondent. The order impugned reveals that the court below did not believe the version put forth by the present appellant and held that the contention raised by the appellant is not believed to be true in absence of any documentary evidence to show that he visited the suit property only in the end of February, 2018 and that he was informed about the request made by the respondent for getting the floor plan of the suit property which was a point of revelation for him. The vague statement made by the appellant of demanding the floor plan by the respondent and the non-disclosure of the name and address of the person of the Society who informed him about the same, were the further grounds for the court to not accept his version. The vague statement made by the appellant of demanding the floor plan by the respondent and the non-disclosure of the name and address of the person of the Society who informed him about the same, were the further grounds for the court to not accept his version. The court also was of the opinion that in the application for restoration of the suit, process had been served at the address of the appellant at Ahmedabad and Mumbai by the Court as well as through the Registered Post A.D. The public notice also had been served which was published in ‘Divya Bhashkar’ on 29.06.2016 in its Ahmedabad and Mumbai edition. The applicant did not care to remain present in the court. Hence, since he resided at Mumbai he was not subscribing to the Gujarati newspaper and that hardly according to the trial court was the reason for it to condone the delay. It further noticed that the negotiation for the settlement of the dispute was made by and between the father of the opponent and well wishers and advocate who appeared for the appellant at the relevant point of time. The mediator was also asked to appear in Civil Misc. Application No. 35 of 2015 and even thereafter in Family Suit No. 775 of 2009. Thus, the court believed that the appellant was fully aware about the restoration application filed by the respondent and he failed and neglected to appear before the court and, therefore, under these circumstances, the delay cannot be condoned and, accordingly, the application had been dismissed on the ground that he fails to explain the delay of 203 days in preferring the application. 3. We have heard extensively learned senior counsel Mr. Percy Kavina assisted by learned advocate Mr. Sujay J. Adeshra appearing for the petitioner and learned senior counsel Mr. Prasant Desai assisted by learned advocate Mr. Mrugen Purohit appearing for the respondent. 4. After hearing both the learned senior counsels appearing for the respective parties, the Court had also proposed the mediation for exploring the possibility of an amicable settlement in wake of long term disputes of the parties. Although, on the part of learned senior advocate Mr. Prashant Desai, the willingness has been expressed by the respondent, however, on instructions, the learned senior advocate Mr. Although, on the part of learned senior advocate Mr. Prashant Desai, the willingness has been expressed by the respondent, however, on instructions, the learned senior advocate Mr. Kavina has urged this Court that it may not be feasible as in the past such attempts have already been made in vain. The proposal put forth in respect of the suit property also, in his opinion, was not possible to be finalized. At that stage, learned senior advocate Mr. Desai had shown his grace by fairly urging this Court that considering the settled position of law, the delay of 203 days would not be seriously contested. He urged further that the Court may make a schedule for the matter to be proceeded in a time bound manner so that the matter can be finally put an end to and the jeopardy undergone can be compensated with cost. Learned senior advocate Mr. Kavina has very fairly submitted that the cost, in such eventuality, as per the practice of the Court, will not be resisted at his end. 5. Considering the delay of 203 days while noticing the factum of the attempt made on the part of the court concerned in serving the process at the time of the application for restoration of the Family Suit No. 775 of 2009, and noticing the service of such notice by publishing in the newspaper at Ahmedabad and at Mumbai, the Trial Court may not be said to be unjustified in finding it difficult to convince itself of the appellant not being aware of the subsequent events after once the suit had been dismissed for want of prosecution on 21st February, 2015. 5.1 At the same time, in wake of the submission made by the learned senior advocate Mr. Desai and considering the fact that there are plethora of decisions which insist on the matter to be decided on merits rather than on a technical ground, it would be desirable to condone the delay of 203 days in preferring the application before the court concerned. 5.2 We notice that there is no separate application made for condoning the delay and at the same time, requesting the court to set aside the order dated 1st August, 2017 passed in Family Suit No. 775 of 2009. 5.2 We notice that there is no separate application made for condoning the delay and at the same time, requesting the court to set aside the order dated 1st August, 2017 passed in Family Suit No. 775 of 2009. The appellant has chosen to substantiate its stand by the decision of the Apex Court in the case of Sesh Nath Singh vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. (2021) 7 SCC 313 , which was a case of an appeal under Section 62 of the Insolvency and Bankruptcy Code, 2016 against the judgment and order passed by the National Company Law Appellate Tribunal, dismissing the company appeal. While discussing Section 238-A of the IBC providing for the provision of the Limitation Act to be applied to the proceedings before the Adjudicating Authorities NCLT and NCLAT, the Apex Court had considered the provision of Section 5 of the Limitation Act giving the discretion to the Courts to be exercised in the way in which the judicial power and discretion ought to be exercised. Emphasizing that the existence of sufficient cause is the condition precedent in preferring such an application for delay and whether sufficient cause is constituted or not would depend upon the facts of each case. There cannot be any straight jacket formula. 6. While so discussing, the Court has held that Section 5 of the Limitation Act does not speak of any application and the said section enables the Court to admit an application or appeal if the applicant or the appellant satisfies the court that he had sufficient cause for not making the application or preferring the appeal within the time prescribed. Recognizing the fact that it is a general practice to make a formal application under Section 5 of the Limitation Act in order to enable the court or Tribunal to weigh the sufficiency of the cause for the inability of the applicant to approach the Court or Tribunal within the time prescribed. The Court held that there is no bar to exercise by the Court or the Tribunal of its discretion to condone the delay even in the absence of any formal application. The relevant paragraphs are as under: “59. The Court held that there is no bar to exercise by the Court or the Tribunal of its discretion to condone the delay even in the absence of any formal application. The relevant paragraphs are as under: “59. It is well settled by a plethora of judgments of this Court as also different High Courts and, in particular, the judgment of this Court in B.K. Educational Services Private Limited vs. Parag Gupta Associates and Others (supra) the NCLT/NCLAT has the discretion to entertain an application/appeal after the prescribed period of limitation. The condition precedent for exercise of such discretion is the existence of sufficient cause for not preferring the appeal and/or the application within the period prescribed by limitation. 60. In Ramlal Motilal and Chhotelal vs. Rewa Coalfields Ltd. AIR 1962 SC 361 this Court affirmed the view taken by Madras High Court in Krishna vs. Chattappan, 1890 ILR Mad. 269 and held that Section 5 of the Limitation Act gives the Courts a discretion, which is to be exercised in the way in which judicial power and discretion ought to be exercised, upon principles which are well understood. The expression ‘sufficient cause’ should be construed liberally to advance substantial justice, as held by this Court, inter-alia, in Shakuntla Devi Jain vs. Kuntal Kumar, AIR 1969 SC 575 and State of West Bengal vs. Administrator, Howrah Municipality and Others, (1972) 1 SCC 366 . 61. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute ‘sufficient cause’ or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party. 62. It is true that a valuable right may accrue to the other party by the law of limitation, which should not lightly be defeated by condoning delay in a routine manner. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hyper technical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hyper technical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. The courts are required to strike a balance between the legitimate rights and interests of the respective parties. 63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application. 64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application.” 7. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application.” 7. Here also, we notice that no application for condonation of delay has been preferred since it is not held to be mandatory. Unless the court specifically insists this to be made as it is not the applicant’s or the appellant’s right to claim the condonation of delay without making an application. It is the court’s discretion not to insist on it. In absence of any specific application for condonation of delay, as the prayer sought for is to exercise the powers under Order 9 Rule 13 of the CPC of setting aside decree ex-parte against the defendant, the appellant has already applied to the court by which the decree was passed for an order to be set aside, and if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. If the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants. Even while convincing us on sufficiency of the cause, we are more guided by the other side conceding to the factum of condoning the delay in wake of settled position of law and, accordingly, the decree passed ex-parte against the appellant dated 1st August, 2017 in Family Suit No. 775 of 2009 is hereby set aside and the suit is restored to the file fixing the date of cross-examination of the appellant in the following manner. 8. Let the parties appear on 11th October, 2022 before the court concerned. Parties shall be at liberty to produce the documentary evidences as may be deemed appropriate and the appellant shall offer himself for the cross-examination on that day. The recording of the evidence of the parties shall start latest by 17th October, 2022. 8. Let the parties appear on 11th October, 2022 before the court concerned. Parties shall be at liberty to produce the documentary evidences as may be deemed appropriate and the appellant shall offer himself for the cross-examination on that day. The recording of the evidence of the parties shall start latest by 17th October, 2022. Neither side shall take any adjournment in cross-examining the witness. Any such adjournment, if is asked for, unless there are exceptional grounds which the court concerned may find acceptable, the rights of the parties seeking adjournment shall be closed or the same shall have to be adjourned for a shorter duration by imposing a heavy cost. 9. Let the final hearing of the matter be concluded by end of 31st December, 2022. This appeal is allowed accordingly with the cost of Rs. 1,00,000/- (One Lakh Only) to be deposited in the account of the respondent being Account No. 029401508877 with the ICICI Bank. In view of the order passed in the main appeal, the connected civil application also does not survive and is disposed of accordingly.