BHIVCHANDRA SHANKAR MORE versus BALU GANGARAM MORE & ORS. on 7 May 2019

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SUPREME COURT REPORTS

[2019] 7 S.C.R.

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BHIVCHANDRA SHANKAR MORE

v.

BALU GANGARAM MORE & ORS.

(Civil Appeal No. 4669 of 2019)

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MAY 07, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Code of Civil Procedure, 1908: Or. IX r. 13 and s. 96(2) –Setting aside decree ex parte against defendant – Suit for partitionby respondents no.1 to 13 decreed ex-parte – Application u/Or. IXCr. 13 by the appellant and respondents No.14 and 15 – Dismissedby the trial court – Appeal by appellant and respondents No.14and 15 – Withdrawal of the said appeal after three years – On thenext day, the appellant and respondents No.14 and 15 filed an appealchallenging the ex-parte decree in the suit – Parties also filedDapplication for condonation of delay in filing appeal against exparte decree, which was allowed – Writ petition there against allowedby the High Court – On appeal, held: Right of appeal u/s. 96(2) isa statutory right and the defendant cannot be deprived of thestatutory right of appeal merely on the ground that the applicationfiled by him u/Or. IX r.13 has been dismissed – Time spent in pursuingEthe application u/Or. IX r.13 to set aside the ex-parte decree to betaken as “sufficient cause” for condoning the delay in filing thefirst appeal – Order of the High Court cannot be sustained and isset aside – Delay in filing the appeal against the judgment passedin the suit is condoned and the appeal filed by appellant andFrespondents No.14 and 15 is restored.

Allowing the appeal, the Court

HELD: 1.1 The scope of Order IX Rule 13 CPC and Section96(2) CPC are entirely different. In an application filed underOrder IX Rule 13 CPC, the Court has to see whether theGsummons were duly served or not or whether the defendant wasprevented by any “sufficient cause” from appearing when thesuit was called for hearing. If the Court is satisfied that thedefendant was not duly served or that he was prevented for “sufficient cause”, the court may set aside the ex-parte decreeand restore the suit to its original position. In terms of Section96(2) CPC, the appeal lies from an original decree passed ex-parte. In the regular appeal filed under Section 96(2) CPC, theappellate court has wide jurisdiction to go into the merits of thedecree. The scope of enquiry under two provisions is entirelydifferent. Merely because the defendant pursued the remedyunder Order IX Rule 13 CPC, it does not prohibit the defendantfrom filing the appeal if his application under Order IX Rule 13CPC is dismissed. The right of appeal under Section 96(2) is astatutory right and the defendant cannot be deprived of thestatutory right of appeal. [Para 11, 12] [304-D-G]

1.2 The remedies provided as simultaneous and cannot beconverted into consecutive remedies” cannot be applied in a rigidmanner and as a straitjacket formula. It has to be considereddepending on the facts and circumstances of each case andwhether the defendant in pursuing the remedy consecutively hasadopted dilatory tactics. Only in cases where the defendant hasadopted dilatory tactics or where there is lack of bonafide inpursuing the two remedies consecutively, the court may declineto condone the delay in filing the first appeal. If the court refusesto condone the delay in the time spent in pursuing the remedyunder Order IX Rule 13 CPC, the defendant would be deprivedof the statutory right of appeal in challenging the decree on merits.[Para 14] [306-C-E]

1.3 It is a fairly well settled law that “sufficient cause” shouldbe given liberal construction so as to advance sustainable justicewhen there is no inaction, no negligence nor want of bonafidecould be imputable to the appellant. [Para 15] [306-E-F]

1.4 Generally, delays in preferring appeals are required tobe condoned, in the interest of justice, where there is no grossnegligence or deliberate inaction or lack of bonafide is imputableto the party seeking condonation of delay. It cannot be said thatthe appellant and respondents No.14 and 15 were grosslynegligent in pursuing the matter more so, when the decree waspassed in the suit for partition. [Para 16, 17] [307-D-E; G-H]

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A1.5 As per Section 97 where any party aggrieved by apreliminary decree does not appeal from such decree, he shallbe precluded from disputing its correctness in any appeal whichmay be preferred from the final decree. The object is that thequestions decided by the court at the stage of passing preliminarydecree cannot be challenged at the time of final decree. If noBappeal had been preferred against the preliminary decree, thesuit filed by the respondents being a suit for partition, theappellant would be deprived of the opportunity in challengingthe decree on merits. In the interest of justice, the appellant andrespondents No.14 and 15 are to be given an opportunity toCchallenge the ex-parte decree on merits, notwithstanding thedismissal of their application filed under Order IX Rule 13.[Para 18] [308-A-C]

1.6 In the facts and circumstances of the case, the timespent in pursuing the application under Order IX Rule 13 is toDbe taken as “sufficient cause” for condoning the delay in filingthe first appeal. The impugned judgment of the High Court cannotbe sustained and is set aside. The delay in filing the appeal againstthe judgment passed in the suit is condoned and the appeal filedby the appellant and respondents No.14 and 15 is restored.[Para 19, 20] [308-D-E]EJotiba Limbaji Kanashenavar v. Ramappa JotibaKanashenavar 1937 Vol. XL Bom Law Reporter957 ; B. Madhuri Goud v. B. Damodar Reddy (2012)12 SCC 693 ; Bhanu Kumar Jain v. Archana Kumarand Another (2005) 1 SCC 787 : [2004] 6 Suppl. SCRF1104 ; N. Balakrishnan v. M. Krishnamurthy (1998) 7SCC 123 : [1998] 1 Suppl. SCR 403 - referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4669of 2019.

From the Judgment and Order dated 20.08.2014 of the High Courtof Judicature at Bombay in Writ Petition No. 3290 of 2014.

Sushil Karanjkar, K. N. Rai, Advs. for the Appellant.

Vinay Navare, Sr. Adv., Ms. Gwen Karthika, Ms. Abha R.Sharma, M. Y. Deshmukh, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

2. This appeal arises out of the judgment dated 20.08.2014 passedby the High Court of Judicature at Bombay in Writ Petition No.3290 of2014 in and by which the High Court refused to condone the delay infiling the first appeal challenging the ex-parte decree passed in RegularCivil Suit No.35 of 2007 dated 04.07.2008.

3. Brief facts which led to filing of this appeal are as under:-

Respondents-plaintiffs No.1 to 13 filed a suit for partition in RegularCivil Suit No.35 of 2007 before the Joint Civil Judge, Junior Division,Daund seeking partition and separate possession of the suit property. Inthe said suit, son of defendant No.2 viz. Tanaji received the suit summonson 25.02.2007. According to appellant-defendant, they were in theneighbouring village in search of work and Tanaji did not inform themabout the service of suit summons and therefore, they could not appearin the suit for partition. The said suit was decreed ex-parte and preliminarydecree for partition was passed on 04.07.2008. On 15.10.2008, appellantand respondents No. 14 and 15 filed an application under Order IX Rule13 CPC for setting aside the ex-parte decree. After considering thecontentions of both the parties, the said application came to be dismissedby the trial court by order dated 06.08.2010. The trial court noted thatthe appellant and respondents No.14 and 15 are coming up with differentreasons for their non-appearance when the suit was called for hearing.The trial court pointed out that though number of amendments weremade in the application filed under Order IX Rule 13 CPC, only in thelast amendment, the defendants have stated that suit summons wasserved on the son of applicant No.2 viz. Tanaji. The trial court observedthat said Tanaji was an adult and the suit summons served on him wasdeemed to be an effective service of summons on the defendants.

4. Being aggrieved by the dismissal of application filed under OrderIX Rule 13 CPC, on 03.09.2010, the appellant and respondents No.14

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Aand 15 filed Civil Appeal No.108 of 2010 and the same was withdrawnon 11.06.2013. On the very next day i.e. on 12.06.2013, the appellantand respondents No.14 and 15 filed regular appeal challenging the ex-parte decree passed in Regular Civil Suit No.35 of 2007. Along with thesaid appeal, they also filed Civil Misc. Application No.56 of 2013 forcondonation of delay of four years, ten months and eight days. The saidBapplication for condonation of delay was allowed by the Additional DistrictJudge, Baramati vide order dated 20.02.2014. The court noted that theappellant and respondents No.14 and 15 did not get an opportunity tocontest the suit on merits. The learned District Judge observed that theappellant and respondents No.14 and 15 have spent their time in wrongCproceedings viz. application filed under Order IX Rule 13 CPC and theappeal thereon and therefore, it will be just and proper to condone thedelay in preferring the appeal challenging the ex-parte decree passed inthe partition suit. The District Court accordingly set aside the order ofthe trial court and allowed the application for condonation of delay infiling the appeal against the ex-parte decree.D

5. Being aggrieved by the order condoning the delay andentertaining the appeal, respondents No.1 to 8 filed WP No.3290 of2014 before the High Court. By the impugned judgment dated 20.08.2014,the High Court allowed the writ petition by holding that the applicationfiled under Order IX Rule 13 CPC cannot be said to be wrongEproceedings and hence, the time spent in pursuing the remedy by filingapplication under Order IX Rule 13 CPC cannot be excluded forcalculating the limitation. The High Court relied upon its own judgmentin Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar1937 Vol.XL Bom. Law Reporter 957 and held that having elected toFpursue the remedy by filing an application under Order IX Rule 13 CPCand having not pursued the remedy of appeal which was open to him atthat time and having failed in the application filed under Order IX Rule13 CPC, the appellant-defendants cannot fall back upon the remedy offiling appeal and seek condonation of delay. The High court pointed outthat two remedies have to be pursued simultaneously and cannot beGconverted into consecutive remedies and on those findings, allowed thewrit petition which is the subject matter challenge.

6. Mr. Sushil Karanjkar, learned counsel appearing for the appellantsubmitted that the suit summons was served upon the son of defendantNo.2 by name Tanaji and at the relevant point of time, the appellant andH

respondents No.14 and 15 were in the neighbouring village for somework and they could not pursue the matter and hence, the delay in filingthe appeal cannot be said to be intentional. Placing reliance upon B.Madhuri Goud v. B. Damodar Reddy (2012) 12 SCC 693, it wassubmitted that consistent view taken by the Supreme Court is that thewords “sufficient cause” should be liberally construed and the DistrictCourt rightly condoned the delay in filing the appeal. It was submittedthat unless the delay in filing the appeal is condoned, the appellants andrespondents No.14 and 15 will lose their valuable rights in the suit propertywhich is the joint family property, without having an opportunity to contestthe same on merits.

7. Mr. Vinay Navare, learned senior counsel appearing on behalfof the respondents submitted that the time spent in prosecuting theproceedings for setting aside the ex-parte decree under Order IX Rule13 CPC is wholly irrelevant since those proceedings under Order IXRule 13 CPC never operated as a bar for filing an appeal under Section96(2) CPC. It was further submitted that the application filed underOrder IX Rule 13 CPC was dismissed on merits and the said order hasattained finality and having filed the appeal challenging the said order,the appellants cannot seek for condonation of delay on the ground thatthey were pursuing the other remedy under Order IX Rule 13 CPC.

8. We have carefully considered the submissions and perused theimpugned judgment and other materials placed on record. The followingpoints arise for consideration:-

(i) Whether the time spent in the proceedings taken to set asidethe ex-parte decree constitute “sufficient cause” within themeaning of Section 5 of the Indian Limitation Act, 1908 soas to condone the delay in preferring an appeal against theex-parte decree on merits?

(ii) When an application filed under Order IX Rule 13 CPC hasbeen dismissed on merits, whether regular appeal underSection 96(2) CPC is barred?

9. The facts are not in dispute. The suit for partition was filed byrespondents No.1 to 13 in the year 2007. It was decreed ex-parte on04.07.2008. The appellant and respondents No.14 and 15 filed applicationunder Order IX Rule 13 CPC on 15.10.2008 and the said applicationwas dismissed on merits by the order dated 06.08.2010. Challenging the A

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Asaid order, the appellant and respondents No.14 and 15 preferred anappeal on 03.09.2010. About three years after its filing i.e. on 11.06.2013,the said appeal was withdrawn and on the next day i.e. on 12.06.2013,the appellant and respondents No.14 and 15 filed appeal challenging thedecree passed in Regular Civil Suit No.35 of 2007 along with an applicationto condone the delay of four years, ten months and eight days.B

10. A conjoint reading of Order IX Rule 13 CPC and Section96(2) CPC indicates that the defendant who suffered an ex-parte decreehas two remedies:- (i) either to file an application under Order IX Rule13 CPC to set aside the ex-parte decree to satisfy the court that summonswere not duly served or those served, he was prevented by “sufficientCcause” from appearing in the court when the suit was called for hearing;(ii) to file a regular appeal from the original decree to the first appellatecourt and challenge the ex-parte decree on merits.

11. It is to be pointed out that the scope of Order IX Rule 13 CPCand Section 96(2) CPC are entirely different. In an application filedDunder Order IX Rule 13 CPC, the Court has to see whether the summonswere duly served or not or whether the defendant was prevented by any“sufficient cause” from appearing when the suit was called for hearing.If the Court is satisfied that the defendant was not duly served or that hewas prevented for “sufficient cause”, the court may set aside the ex-Eparte decree and restore the suit to its original position. In terms ofSection 96(2) CPC, the appeal lies from an original decree passed ex-parte. In the regular appeal filed under Section 96(2) CPC, the appellatecourt has wide jurisdiction to go into the merits of the decree. The scopeof enquiry under two provisions is entirely different. Merely because thedefendant pursued the remedy under Order IX Rule 13 CPC, it does notFprohibit the defendant from filing the appeal if his application under OrderIX Rule 13 CPC is dismissed.

12. The right of appeal under Section 96(2) CPC is a statutoryright and the defendant cannot be deprived of the statutory right of appealmerely on the ground that the application filed by him under Order IXGRule 13 CPC has been dismissed. In Bhanu Kumar Jain v. ArchanaKumar and Another (2005) 1 SCC 787, the Supreme Court consideredthe question whether the first appeal was maintainable despite the factthat an application under Order IX Rule 13 CPC was filed and dismissed.Observing that the right of appeal is a statutory right and that the litigant H

cannot be deprived of such right, in paras (36) and (38), it was held asunder:- “36. …………… A right to question the correctness of the decreein a first appeal is a statutory right. Such a right shall not becurtailed nor shall any embargo be fixed thereupon unless thestatute expressly or by necessary implication says so. [See (2004)5 SCC 385, Deepal Girishbhai Soni and Others v. United IndiaInsurance Co. Ltd., Boaroda and Chandravathi P.K. andOthers v. C.K. Saji and Others (2004) 3 SCC 734].”

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“38. The dichotomy, in our opinion, can be resolved by holdingthat whereas the defendant would not be permitted to raise acontention as regards the correctness or otherwise of the orderposting the suit for ex parte hearing by the trial court and/orexistence of a sufficient case for non-appearance of the defendantbefore it, it would be open to him to argue in the first appeal filedby him under Section 96(2) of the Code on the merits of the suitso as to enable him to contend that the materials brought on recordby the plaintiffs were not sufficient for passing a decree in hisfavour or the suit was otherwise not maintainable. Lack ofjurisdiction of the court can also be a possible plea in such anappeal. We, however, agree with Mr Chaudhari that the“Explanation” appended to Order 9 Rule 13 of the Code shallreceive a strict construction as was held by this Court in RaniChoudhury v. Lt.-Col. Suraj Jit Choudhary (1982) 2 SCC 596,P. Kiran Kumar v. A.S. Khadar and Others (2002) 5 SCC 161and Shyam Sundar Sarma v. Pannalal Jaiswal and Others(2005) 1 SCC 436.”

13. After referring to its own judgment in Jotiba Limbaji, theHigh Court held that after the appeal from the order of the lower courtrefusing to set aside the ex-parte decree, the defendant may think ofapplying to the High Court in revision and in that process, considerabletime might be lost. After referring to other judgments, in the impugnedjudgment, the High Court held as under:- “15……….. An unscrupulous defendant may file the applicationunder Order IX Rule 13 CPC and carry the order to the highestforum irrespective of the merit in it and thereafter still file appeal AB

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Aagainst the decree. Considerable time would be lost for the plaintiffin that case. Every provision under the law of procedure is aimedat justness, fairness and full opportunity of hearing to the partiesto the court proceedings. It caters to every conceivable situation.But at the same time, the law expects a litigant to be straight,honest and fair. The two remedies provided against ex-parte decreeBare in respect of two different situations and are expected to beresorted to only if the facts of the situation are available to alitigant. The remedies provided as simultaneous and cannot beconverted into consecutive remedies.”

14. The above observation of the High Court that “the remediesCprovided as simultaneous and cannot be converted into consecutiveremedies” cannot be applied in a rigid manner and as a straitjacketformula. It has to be considered depending on the facts and circumstancesof each case and whether the defendant in pursuing the remedyconsecutively has adopted dilatory tactics. Only in cases where theDdefendant has adopted dilatory tactics or where there is lack of bonafidein pursuing the two remedies consecutively, the court may decline tocondone the delay in filing the first appeal. If the court refuses to condonethe delay in the time spent in pursuing the remedy under Order IX Rule13 CPC, the defendant would be deprived of the statutory right of appealin challenging the decree on merits.E

15. It is a fairly well settled law that “sufficient cause” should begiven liberal construction so as to advance sustainable justice when thereis no inaction, no negligence nor want of bonafide could be imputable tothe appellant. After referring to various judgments, in B. Madhuri, thisCourt held as under:-F

“6. The expression “sufficient cause” used in Section 5 of theLimitation Act, 1963 and other statutes is elastic enough to enablethe courts to apply the law in a meaningful manner which servesthe ends of justice. No hard-and-fast rule has been or can be laiddown for deciding the applications for condonation of delay butGover the years courts have repeatedly observed that a liberalapproach needs to be adopted in such matters so that substantiverights of the parties are not defeated only on the ground of delay.”

16. Observing that the rules of limitation are not meant to destroythe rights of the parties, in N. Balakrishnan v. M. Krishnamurthy (1998)H7 SCC 123, this Court held as under:- “11. Rules of limitation are not meant to destroy the rights ofparties. They are meant to see that parties do not resort to dilatorytactics, but seek their remedy promptly. The object of providing alegal remedy is to repair the damage caused by reason of legalinjury. The law of limitation fixes a lifespan for such legal remedyfor the redress of the legal injury so suffered. Time is preciousand wasted time would never revisit. During the efflux of time,newer causes would sprout up necessitating newer persons toseek legal remedy by approaching the courts. So a lifespan mustbe fixed for each remedy. Unending period for launching theremedy may lead to unending uncertainty and consequentialanarchy. The law of limitation is thus founded on public policy. Itis enshrined in the maxim interest reipublicae up sit finis litium(it is for the general welfare that a period be put to litigation).Rules of limitation are not meant to destroy the rights of the parties.They are meant to see that parties do not resort to dilatory tacticsbut seek their remedy promptly. The idea is that every legal remedymust be kept alive for a legislatively fixed period of time.”

As pointed out earlier, an appeal under Section 96 CPC is astatutory right. Generally, delays in preferring appeals are required to becondoned, in the interest of justice, where there is no gross negligenceor deliberate inaction or lack of bonafide is imputable to the party seekingcondonation of delay.

17. In the case in hand, respondents No.1 to 13 filed a suit forpartition in the year 2007, which was decreed ex-parte on 04.07.2008.Appellant and respondents No.14 and 15 filed application under OrderIX Rule 13 CPC and the same came to be dismissed on 06.08.2010.Being aggrieved by dismissal of application under Order IX Rule 13CPC, the appellant and respondents No.14 and 15 preferred an appealunder Order XLIII Rule 1(d) CPC on 03.09.2010. Of course, the saidappeal was pending for about three years and the same was withdrawnon 11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, theappellant and respondents No.14 and 15 filed an appeal challenging theex-parte decree and judgment dated 04.07.2008 passed in Regular CivilSuit No.35 of 2007. It cannot be said that the appellant and respondentsNo.14 and 15 were grossly negligent in pursuing the matter more so,when the decree was passed in the suit for partition.

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A18. It is pertinent to note that as per Section 97 CPC where anyparty aggrieved by a preliminary decree does not appeal from such decree,he shall be precluded from disputing its correctness in any appeal whichmay be preferred from the final decree. The object is that the questionsdecided by the court at the stage of passing preliminary decree cannotbe challenged at the time of final decree. If no appeal had been preferredBagainst the preliminary decree, the suit filed by the respondents-plaintiffsbeing a suit for partition, the appellant would be deprived of theopportunity in challenging the decree on merits. In the interest of justice,the appellant and respondents No.14 and 15 are to be given an opportunityto challenge the ex-parte decree dated 04.07.2008 on merits,Cnotwithstanding the dismissal of their application filed under Order IXRule 13 CPC.

19. In the facts and circumstances of the present case, the timespent in pursuing the application under Order IX Rule 13 CPC is to betaken as “sufficient cause” for condoning the delay in filing the firstDappeal. The impugned judgment of the High Court cannot be sustainedand is liable to be set aside.

20. In the result, the impugned judgment dated 20.08.2014 passedby the High Court in WP No.3290 of 2014 is set aside and this appeal isallowed. The delay in filing the appeal against the judgment passed inERegular Civil Suit No.35 of 2007 is condoned and the appeal filed by theappellant and respondents No.14 and 15 shall stand restored. The firstappellate court shall take the appeal titled “Shri Bhivchand ShankarMore & Ors. v. Shri Balu Gangaram More & Ors.” on file and proceedwith the same in accordance with law. We make it clear that we havenot expressed any opinion on the merits of the matter.F

Nidhi Jain

Appeal allowed.

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