Supreme Court of India
MAMTAZ & ORS. versus GULSUMA ALIAS KULUSUMA on 18 January 2022
984
SUPREME COURT REPORTS
[2022] 1 S.C.R.
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MAMTAZ & ORS.
v.
GULSUMA ALIAS KULUSUMA
(Civil Appeal No. 315 of 2022)
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JANUARY 18, 2022
[M. R. SHAH AND SANJIV KHANNA, JJ.]
Civil Procedure Code, 1908 – Or.9 r 13 – sec. 96 – Ex-ParteDecree – Setting aside – Power of Appellate Court – CondonationCof Delay – In Absence of Application – The appellants filed a suitfor declaration and possession – Ex-parte decree was passed bythe trial Court against the respondents – Appeal was preferred bythe respondents before the First Appellate Court after delay of2 years and 7 months – Respondent filed application forDcondonation of delay, however he withdrew the same later on –First Appellate Court dismissed the appeal on the ground oflimitation in absence of any application to condone the delay –Respondents filed second appeal before the High Court – The HighCourt allowed the second appeal and also set aside the ex-partejudgment and decree passed by the Trial Court – High CourtEremanded the matter to the Trial Court for fresh decision of the suitin accordance with law – On appeal, held: What was challengedbefore the High Court was the judgment and order passed by theFirst Appellate Court dismissing the first appeal u/s. 96 of the CPCas not maintainable in absence of any delay condoned applicationF– It appears that the High Court proceeded further with the hearingof the appeal as if the High Court was considering the appeal againstthe order passed on an application under Order IX Rule 13 CPC –Whereas the appeal was against the order and decree passed bythe trial Court, which was affirmed by the First Appellate Court asGbarred by limitation – The procedure adopted by the High Court isunknown to the procedure known to law under the provisions ofthe CPC – Therefore, the impugned judgment and order passed bythe High Court is unsustainable.
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Allowing the appeal, the Court
HELD: 1. It is required to be noted that what was challengedbefore the High Court was the order/judgment and order passedby the First Appellate Court dismissing the first appeal underSection 96 of the CPC as not maintainable in absence of any delaycondoned application. There was no decision by the FirstAppellate Court on merits. If the High Court was of the opinionthat the First Appellate Court erred in not condoning the delayin appeal and dismissing the appeal on the ground of limitation,in that case the High Court could have set aside the order passedby the First Appellate Court dismissing the appeal on the groundof limitation and thereafter remand the matter to the FirstAppellate Court to decide the appeal on merits. From theimpugned judgment and order passed by the High Court, itappears that the High Court proceeded further with the hearingof the appeal as if the High Court was considering the appealagainst the order passed on an application under Order IX Rule13 CPC, whereas the appeal was against the order and decreepassed by the Trial Court, which was affirmed by the FirstAppellate Court as barred by limitation. Therefore, the procedureadopted by the High Court is unknown to the procedure knownto law under the provisions of the CPC. Therefore, the impugnedjudgment and order passed by the High Court is unsustainable.[Paras 5 & 6][987-G-H; 988-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 315 of2022.
From the Judgment and Order dated 21.04.2021 of the High Courtof Karnataka Kalaburagi Bench in R.S.A. No.200073 of 2021.
Sharanagouda Patil, Ms. Supreeta Sharanagouda, Advs. for theAppellants.
S. N. Bhat, Sr. Adv., Ms. Parvati Bhat, Tarun Kumar Thakur, D.P. Chaturvedi, Shahnawaz Mamadapur, Ms. Anuradha Mutatkar, Advs.for the Respondent.
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AThe Judgment of the Court was delivered by
M. R. SHAH, J.
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1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 21.04.2021 passed by the High Court of Karnataka,Kalaburagi Bench in R.S.A. No.200073 of 2021 by which the High CourtBhas allowed the said appeal preferred by the respondent herein and hasquashed and set aside the order passed by the First Appellate Court inR.A. No. 22 of 2020 and has also quashed and set aside the judgmentand decree passed by the Trial Court and remanded the matter to theTrial Court for fresh disposal in accordance with law, the original plaintiffsChave preferred the present appeal.
2. The facts leading to the present appeal, which are necessaryfor the purpose of disposal of the present appeal in nutshell are as under:- 2.1 That the appellants herein filed a suit for declaration andpossession. The Trial Court by judgment and decree dated 08.01.2018Ddecreed the said suit. As such the said suit proceeded ex parte and thejudgment and decree passed by the Trial Court was ex parte decree.
2.2 Two remedies were available to the defendant – one, filing anapplication for setting aside the ex parte decree under Order IX Rule 13of the Civil Procedure Code (hereinafter referred to as “CPC”) and theEother preferring an appeal against the judgment and decree passed bythe Trial Court.
2.3 The defendant – respondent herein preferred the second optionand preferred appeal before the First Appellate Court against the judgmentand decree passed by the Trial Court. Therewas a delay of 2 years andF7 months in preferring the first appeal. Therefore, the respondent herein– original defendant -the appellant before the First Appellate Court filedI.A. No. 1 of 2020 requesting to condone the delay. However, the appellantbefore the First Appellate Court – original defendant for whatever reasonwithdrew the said application for condonation of delay.G2.4 That the first appeal came up before the First Appellate Court.
G2.4 That the first appeal came up before the First Appellate Court.As there was no fresh application to condone the delay and the earliercondonation of delay application requesting to condone the delay of 2years and 7 months was withdrawn, by order dated 10.12.2020, the FirstAppellate Court dismissed the first appeal on the ground that in absenceof any application to condone the delay the appeal under Section 96H
CPC shall not maintainable. Thus, the First Appellate Court dismissedthe first appeal solely on the aforesaid ground of limitation and the FirstAppellate Court did not go into the merits of the case at all.
2.5 Feeling aggrieved and dissatisfied with the order passed bythe First Appellate Court dismissing the appeal as not maintainable inabsence of any delay condoned application, the respondent herein –original defendant – appellant before the First Appellate Court preferredsecond appeal before the High Court. By the impugned judgment andorder, the High Court has allowed the said second appeal and has notonly set aside the judgment and order passed by the First AppellateCourt dismissing the appeal as not maintainable in absence of delaycondoned application, but has also set aside the ex parte judgment anddecree passed by the Trial Court as if the High Court was consideringthe order passed in an application under Order IX Rule 13 CPC and hasalso quashed and set aside the judgment and decree passed by the TrialCourt and has remanded the matter to the Trial Court for fresh decisionof the suit in accordance with law.
2.6 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the original plaintiffs have preferredthe present appeal.
3. We have heard Shri Sharanagouda Patil, learned counselappearing on behalf of the appellants and Shri S.N. Bhat, learned SeniorAdvocate appearing on behalf of the contesting respondent – originaldefendant.
4. Having heard the learned counsel for the respective partiesand considering the facts narrated hereinabove, we are of the opinionthat the impugned judgment and order passed by the High Court quashingand setting aside the judgment and decree passed by the Trial Court andremanding the matter back to the Trial Court is unsustainable.
5. It is required to be noted that what was challenged beforetheHigh Court was the order/judgment and order passed by the First AppellateCourt dismissing the first appeal under Section 96 of the CPC as notmaintainable in absence of any delay condoned application. Therewasno decision by the First Appellate Court on merits. If the High Courtwas of the opinion thatthe First Appellate Court erred in not condoningthe delay in appeal and dismissing the appeal on the ground of limitation,in that case the High Court could have set aside the order passed by the A
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AFirst Appellate Court dismissing the appeal on the ground of limitationand thereafter remand the matter to the First Appellate Court to decidethe appeal on merits.
6. From the impugned judgment and order passed by the HighCourt, it appears that the High Court proceeded further with the hearingBof the appeal as if the High Court was considering the appeal against theorder passed on an application under Order IX Rule 13 CPC, whereasthe appeal was against the order and decree passed by the Trial Court,which was affirmed by the First Appellate Court as barred by limitation.Therefore, the procedure adopted by the High Court is unknown to theprocedure known to law under the provisions of the CPC. Therefore,Cthe impugned judgment and order passed by the High Court isunsustainable.
7. At this stage, Shri S.N. Bhat, learned Senior Advocate appearingon behalf of the respondent herein - original defendant – appellant beforethe First Appellate Court has requested to permit the original defendant–Dappellant before the First Appellate Court to revive the application forcondonation of delay being I.A. No.1 of 2020, which was withdrawnmistakenly on wrong applying the provisions of the Limitation Act. ShriBhat, learned Senior Advocate has submitted that if the original defendantis not permitted to revive the application for condonation of delay, heEwould be remediless.
8. In view of the above and for the reasons stated above, presentappeal succeeds. The impugned judgment and order passed by the HighCourt dated 21.04.2021 passed in RSA No.200073 of 2021 is herebyquashed and set aside. The matter is remanded to the First AppellateFCourt. The appeal before the First Appellate Court being R.A. No.22 of2020 is ordered to be restored to the file in the Court of the First AppellateCourt. The respondent herein – original defendant – appellant beforethe First Appellate Court is permitted to move an appropriate applicationfor revival of I.A. No.1 of 2020 and the First Appellate Court is directedto revive I.A. No.1 of 2020, which seems to have been withdrawn byGthe original defendant – appellant before the First Appellate Courtmistakenly and thereafter the First Appellate Court to first decide anddispose of the said application for condonation of delay and if the delayis condoned in that case the First Appellate Court to finally decide anddispose of the first appeal in accordance with law and on its own merits.HIf for any valid reasons, the application for condonation of delay is dismissed by the First Appellate Court, it goes without saying that it willbe open for the original defendant to challenge the same before a higherforum/court, which may be considered in accordance with law and onits own merits.
Present appeal is allowed accordingly to the aforesaid extent. Inthe facts and circumstances of the case, there shall be no order as tocosts.
Ankit Gyan(Assisted by : Rahul Rathi, LCRA)
Appeal allowed.
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