Wednesday, 8 May 2019

Whether time spent in proceeding with application U 9 R 13 of CPC can be condoned in filing of first appeal?

As pointed out earlier, an appeal under Section 96 CPC is a
statutory right. Generally, delays in preferring appeals are
required to be condoned, in the interest of justice, where there is
no gross negligence or deliberate inaction or lack of bonafide is
imputable to the party seeking condonation of delay.
17. In the case in hand, respondents No.1 to 13 filed a suit for
partition in the year 2007, which was decreed ex-parte on

04.07.2008. Appellant and respondents No.14 and 15 filed
application under Order IX Rule 13 CPC and the same came to
be dismissed on 06.08.2010. Being aggrieved by dismissal of
application under Order IX Rule 13 CPC, the appellant and
respondents No.14 and 15 preferred an appeal under Order XLIII
Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was
pending for about three years and the same was withdrawn on
11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the
appellant and respondents No.14 and 15 filed an appeal
challenging the ex-parte decree and judgment dated 04.07.2008
passed in Regular Civil Suit No.35 of 2007. It cannot be said that
the appellant and respondents No.14 and 15 were grossly
negligent in pursuing the matter more so, when the decree was
passed in the suit for partition.
18. It is pertinent to note that as per Section 97 CPC where any
party aggrieved by a preliminary decree does not appeal from
such decree, he shall be precluded from disputing its correctness
in any appeal which may be preferred from the final decree. The
object is that the questions decided by the court at the stage of
passing preliminary decree cannot be challenged at the time of
final decree. If no appeal had been preferred against the

preliminary decree, the suit filed by the respondents-plaintiffs
being a suit for partition, the appellant would be deprived of the
opportunity in challenging the decree on merits. In the interest of
justice, the appellant and respondents No.14 and 15 are to be
given an opportunity to challenge the ex-parte decree dated
04.07.2008 on merits, notwithstanding the dismissal of their
application filed under Order IX Rule 13 CPC.
19. In the facts and circumstances of the present case, the time
spent in pursuing the application under Order IX Rule 13 CPC is
to be taken as “sufficient cause” for condoning the delay in filing
the first appeal. The impugned judgment of the High Court
cannot be sustained and is liable to be set aside.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4669 OF 2019

BHIVCHANDRA SHANKAR MORE Vs  BALU GANGARAM MORE 

R. BANUMATHI, J.
Dated:May 07, 2019.

Leave granted.
2. This appeal arises out of the judgment dated 20.08.2014
passed by the High Court of Judicature at Bombay in Writ
Petition No.3290 of 2014 in and by which the High Court refused
to condone the delay in filing the first appeal challenging the exparte
decree passed in Regular Civil 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
Regular Civil Suit No.35 of 2007 before the Joint Civil Judge,
Junior Division, Daund seeking partition and separate possession
1
of the suit property. In the said suit, son of defendant No.2 viz.
Tanaji received the suit summons on 25.02.2007. According to
appellant-defendant, they were in the neighbouring village in
search of work and Tanaji did not inform them about the service
of suit summons and therefore, they could not appear in the suit
for partition. The said suit was decreed ex-parte and preliminary
decree for partition was passed on 04.07.2008. On 15.10.2008,
appellant and respondents No. 14 and 15 filed an application
under Order IX Rule 13 CPC for setting aside the ex-parte
decree. After considering the contentions of both the parties, the
said application came to be dismissed by the trial court by order
dated 06.08.2010. The trial court noted that the appellant and
respondents No.14 and 15 are coming up with different reasons
for their non-appearance when the suit was called for hearing.
The trial court pointed out that though number of amendments
were made in the application filed under Order IX Rule 13 CPC,
only in the last amendment, the defendants have stated that suit
summons was served on the son of applicant No.2 viz. Tanaji.
The trial court observed that said Tanaji was an adult and the suit
summons served on him was deemed to be an effective service
of summons on the defendants.
4. Being aggrieved by the dismissal of application filed under
Order IX Rule 13 CPC, on 03.09.2010, the appellant and
respondents No.14 and 15 filed Civil Appeal No.108 of 2010 and
the same was withdrawn on 11.06.2013. On the very next day i.e.
on 12.06.2013, the appellant and respondents No.14 and 15 filed
regular appeal challenging the ex-parte decree passed in Regular
Civil Suit No.35 of 2007. Along with the said appeal, they also
filed Civil Misc. Application No.56 of 2013 for condonation of
delay of four years, ten months and eight days. The said
application for condonation of delay was allowed by the
Additional District Judge, Baramati vide order dated 20.02.2014.
The court noted that the appellant and respondents No.14 and 15
did not get an opportunity to contest the suit on merits. The
learned District Judge observed that the appellant and
respondents No.14 and 15 have spent their time in wrong
proceedings viz. application filed under Order IX Rule 13 CPC
and the appeal thereon and therefore, it will be just and proper to
condone the delay in preferring the appeal challenging the exparte
decree passed in the partition suit. The District Court
accordingly set aside the order of the trial court and allowed the
application for condonation of delay in filing the appeal against
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the ex-parte decree.
5. Being aggrieved by the order condoning the delay and
entertaining the appeal, respondents No.1 to 8 filed WP No.3290
of 2014 before the High Court. By the impugned judgment dated
20.08.2014, the High Court allowed the writ petition by holding
that the application filed under Order IX Rule 13 CPC cannot be
said to be wrong proceedings and hence, the time spent in
pursuing the remedy by filing application under Order IX Rule 13
CPC cannot be excluded for calculating the limitation. The High
Court relied upon its own judgment in Jotiba Limbaji
Kanashenavar v. Ramappa Jotiba Kanashenavar 1937 Vol.XL
Bom. Law Reporter 957 and held that having elected to pursue
the remedy by filing an application under Order IX Rule 13 CPC
and having not pursued the remedy of appeal which was open to
him at that time and having failed in the application filed under
Order IX Rule 13 CPC, the appellant-defendants cannot fall back
upon the remedy of filing appeal and seek condonation of delay.
The High court pointed out that two remedies have to be pursued
simultaneously and cannot be converted into consecutive
remedies and on those findings, allowed the writ petition which is
the subject matter challenge.
4
6. Mr. Sushil Karanjkar, learned counsel appearing for the
appellant submitted that the suit summons was served upon the
son of defendant No.2 by name Tanaji and at the relevant point of
time, the appellant and respondents No.14 and 15 were in the
neighbouring village for some work and they could not pursue the
matter and hence, the delay in filing the appeal cannot be said to
be intentional. Placing reliance upon B. Madhuri Goud v. B.
Damodar Reddy (2012) 12 SCC 693, it was submitted that
consistent view taken by the Supreme Court is that the words
“sufficient cause” should be liberally construed and the District
Court rightly condoned the delay in filing the appeal. It was
submitted that unless the delay in filing the appeal is condoned,
the appellants and respondents No.14 and 15 will lose their
valuable rights in the suit property which is the joint family
property, without having an opportunity to contest the same on
merits.
7. Mr. Vinay Navare, learned senior counsel appearing on
behalf of the respondents submitted that the time spent in
prosecuting the proceedings for setting aside the ex-parte decree
under Order IX Rule 13 CPC is wholly irrelevant since those
proceedings under Order IX Rule 13 CPC never operated as a
5
bar for filing an appeal under Section 96(2) CPC. It was further
submitted that the application filed under Order IX Rule 13 CPC
was dismissed on merits and the said order has attained finality
and having filed the appeal challenging the said order, the
appellants cannot seek for condonation of delay on the ground
that they were pursuing the other remedy under Order IX Rule 13
CPC.
8. We have carefully considered the submissions and perused
the impugned judgment and other materials placed on record.
The following points arise for consideration:-
(i) Whether the time spent in the proceedings taken to
set aside the ex-parte decree constitute “sufficient
cause” within the meaning of Section 5 of the Indian
Limitation Act, 1908 so as to condone the delay in
preferring an appeal against the ex-parte decree on
merits?
(ii) When an application filed under Order IX Rule 13
CPC has been dismissed on merits, whether regular
appeal under Section 96(2) CPC is barred?
9. The facts are not in dispute. The suit for partition was filed
by respondents No.1 to 13 in the year 2007. It was decreed exparte
on 04.07.2008. The appellant and respondents No.14 and
15 filed application under Order IX Rule 13 CPC on 15.10.2008
6
and the said application was dismissed on merits by the order
dated 06.08.2010. Challenging the said order, the appellant and
respondents No.14 and 15 preferred an appeal 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 the decree passed in Regular Civil Suit No.35 of
2007 along with an application to condone the delay of four
years, ten months and eight days.
10. A conjoint reading of Order IX Rule 13 CPC and Section
96(2) CPC indicates that the defendant who suffered an ex-parte
decree has two remedies:- (i) either to file an application under
Order IX Rule 13 CPC to set aside the ex-parte decree to satisfy
the court that summons were not duly served or those served, he
was prevented by “sufficient cause” 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 appellate court and challenge
the ex-parte decree on merits.
11. It is to be pointed out that the scope of Order IX Rule 13
CPC and Section 96(2) CPC are entirely different. In an
application filed under Order IX Rule 13 CPC, the Court has to
7
see whether the summons were 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 he was
prevented for “sufficient cause”, the court may set aside the exparte
decree and restore the suit to its original position. In terms
of Section 96(2) CPC, the appeal lies from an original decree
passed ex-parte. In the regular appeal filed under Section 96(2)
CPC, the appellate court has wide jurisdiction to go into the
merits of the decree. The scope of enquiry under two provisions
is entirely different. Merely because the defendant pursued the
remedy under Order IX Rule 13 CPC, it does not prohibit the
defendant from filing the appeal if his application under Order IX
Rule 13 CPC is dismissed.
12. The right of appeal under Section 96(2) CPC is a statutory
right and the defendant cannot be deprived of the statutory right
of appeal merely on the ground that the application filed by him
under Order IX Rule 13 CPC has been dismissed. In Bhanu
Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787,
the Supreme Court considered the question whether the first
appeal was maintainable despite the fact that an application
8
under Order IX Rule 13 CPC was filed and dismissed. Observing
that the right of appeal is a statutory right and that the litigant
cannot be deprived of such right, in paras (36) and (38), it was
held as under:-
“36. …………… A right to question the correctness of the
decree in a first appeal is a statutory right. Such a right shall not
be curtailed nor shall any embargo be fixed thereupon unless
the statute expressly or by necessary implication says so. [See
(2004) 5 SCC 385, Deepal Girishbhai Soni and Others v. United
India Insurance Co. Ltd., Boaroda and Chandravathi P.K. and
Others v. C.K. Saji and Others (2004) 3 SCC 734].”
……………..
“38. The dichotomy, in our opinion, can be resolved by holding
that whereas the defendant would not be permitted to raise a
contention as regards the correctness or otherwise of the order
posting the suit for ex parte hearing by the trial court and/or
existence of a sufficient case for non-appearance of the
defendant before it, it would be open to him to argue in the first
appeal filed by him under Section 96(2) of the Code on the
merits of the suit so as to enable him to contend that the
materials brought on record by the plaintiffs were not sufficient
for passing a decree in his favour or the suit was otherwise not
maintainable. Lack of jurisdiction of the court can also be a
possible plea in such an appeal. We, however, agree with Mr
Chaudhari that the “Explanation” appended to Order 9 Rule 13
of the Code shall receive a strict construction as was held by this
Court in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhary (1982) 2
SCC 596, P. Kiran Kumar v. A.S. Khadar and Others (2002) 5
SCC 161 and Shyam Sundar Sarma v. Pannalal Jaiswal and
Others (2005) 1 SCC 436.”
9
13. After referring to its own judgment in Jotiba Limbaji, the
High Court held that after the appeal from the order of the lower
court refusing to set aside the ex-parte decree, the defendant
may think of applying to the High Court in revision and in that
process, considerable time might be lost. After referring to other
judgments, in the impugned judgment, the High Court held as under:-
“15……….. An unscrupulous defendant may file the application
under Order IX Rule 13 CPC and carry the order to the highest
forum irrespective of the merit in it and thereafter still file appeal
against the decree. Considerable time would be lost for the plaintiff
in that case. Every provision under the law of procedure is
aimed at justness, fairness and full opportunity of hearing to the
parties to 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 decree are in respect of two different situations and are
expected to be resorted to only if the facts of the situation are
available to a litigant. The remedies provided as simultaneous
and cannot be converted into consecutive remedies.”
14. The above observation of the High Court that “the remedies
provided as simultaneous and cannot be converted into consecutive
remedies” cannot be applied in a rigid manner and as a straitjacket
formula. It has to be considered depending on the facts
and circumstances of each case and whether the defendant in
10
pursuing the remedy consecutively has adopted dilatory tactics.
Only in cases where the defendant has adopted dilatory tactics or
where there is lack of bonafide in pursuing the two remedies consecutively,
the court may decline to condone the delay in filing the
first appeal. If the court refuses to condone the delay in the time
spent in pursuing the remedy under Order IX Rule 13 CPC, the
defendant would be deprived of the statutory right of appeal in
challenging the decree on merits.
15. It is a fairly well settled law that “sufficient cause” should be
given liberal construction so as to advance sustainable justice
when there is no inaction, no negligence nor want of bonafide
could be imputable to the appellant. After referring to various
judgments, in B. Madhuri, this Court held as under:-
“6. The expression “sufficient cause” used in Section 5 of the
Limitation Act, 1963 and other statutes is elastic enough to
enable the courts to apply the law in a meaningful manner which
serves the ends of justice. No hard-and-fast rule has been or can
be laid down for deciding the applications for condonation of
delay but over the years courts have repeatedly observed that a
liberal approach needs to be adopted in such matters so that
substantive rights of the parties are not defeated only on the
ground of delay.”
16. Observing that the rules of limitation are not meant to
destroy the rights of the parties, in N. Balakrishnan v. M.
11
Krishnamurthy (1998) 7 SCC 123, this Court held as under:-
“11. Rules of limitation are not meant to destroy the rights of
parties. They are meant to see that parties do not resort to
dilatory tactics, but seek their remedy promptly. The object of
providing a legal remedy is to repair the damage caused by
reason of legal injury. The law of limitation fixes a lifespan for
such legal remedy for the redress of the legal injury so suffered.
Time is precious and wasted time would never revisit. During the
efflux of time, newer causes would sprout up necessitating
newer persons to seek legal remedy by approaching the courts.
So a lifespan must be fixed for each remedy. Unending period
for launching the remedy may lead to unending uncertainty and
consequential anarchy. The law of limitation is thus founded on
public policy. It is 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 tactics but seek their remedy promptly. The idea is that
every legal remedy must be kept alive for a legislatively fixed
period of time.”
As pointed out earlier, an appeal under Section 96 CPC is a
statutory right. Generally, delays in preferring appeals are
required to be condoned, in the interest of justice, where there is
no gross negligence or deliberate inaction or lack of bonafide is
imputable to the party seeking condonation of delay.
17. In the case in hand, respondents No.1 to 13 filed a suit for
partition in the year 2007, which was decreed ex-parte on

04.07.2008. Appellant and respondents No.14 and 15 filed
application under Order IX Rule 13 CPC and the same came to
be dismissed on 06.08.2010. Being aggrieved by dismissal of
application under Order IX Rule 13 CPC, the appellant and
respondents No.14 and 15 preferred an appeal under Order XLIII
Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was
pending for about three years and the same was withdrawn on
11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the
appellant and respondents No.14 and 15 filed an appeal
challenging the ex-parte decree and judgment dated 04.07.2008
passed in Regular Civil Suit No.35 of 2007. It cannot be said that
the appellant and respondents No.14 and 15 were grossly
negligent in pursuing the matter more so, when the decree was
passed in the suit for partition.
18. It is pertinent to note that as per Section 97 CPC where any
party aggrieved by a preliminary decree does not appeal from
such decree, he shall be precluded from disputing its correctness
in any appeal which may be preferred from the final decree. The
object is that the questions decided by the court at the stage of
passing preliminary decree cannot be challenged at the time of
final decree. If no appeal had been preferred against the

preliminary decree, the suit filed by the respondents-plaintiffs
being a suit for partition, the appellant would be deprived of the
opportunity in challenging the decree on merits. In the interest of
justice, the appellant and respondents No.14 and 15 are to be
given an opportunity to challenge the ex-parte decree dated
04.07.2008 on merits, notwithstanding the dismissal of their
application filed under Order IX Rule 13 CPC.
19. In the facts and circumstances of the present case, the time
spent in pursuing the application under Order IX Rule 13 CPC is
to be taken as “sufficient cause” for condoning the delay in filing
the first appeal. The impugned judgment of the High Court
cannot be sustained and is liable to be set aside.
20. In the result, the impugned judgment dated 20.08.2014
passed by the High Court in WP No.3290 of 2014 is set aside
and this appeal is allowed. The delay in filing the appeal against
the judgment passed in Regular Civil Suit No.35 of 2007 is
condoned and the appeal filed by the appellant and respondents
No.14 and 15 shall stand restored. The first appellate court
shall take the appeal titled “Shri Bhivchand Shankar More & Ors.
v. Shri Balu Gangaram More & Ors.” on file and proceed with the
same in accordance with law. We make it clear that we have not

expressed any opinion on the merits of the matter.
……………………..J.
[R. BANUMATHI]
…………………………..J.
[R. SUBHASH REDDY]
New Delhi;
May 07, 2019

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