Case Note & Summary
The Supreme Court allowed the appeal filed by Bhivchandra Shankar More against the judgment of the Bombay High Court which had refused to condone the delay in filing the first appeal against an ex-parte decree in a partition suit. The respondents-plaintiffs had filed Regular Civil Suit No.35 of 2007 for partition and separate possession. The suit summons was served on Tanaji, the son of defendant No.2, but the appellant and other defendants claimed they were unaware of the service as they were in a neighbouring village for work. Consequently, they did not appear, and an ex-parte preliminary decree was passed on 04.07.2008. On 15.10.2008, the appellant and respondents No.14 and 15 filed an application under Order IX Rule 13 CPC to set aside the ex-parte decree, which was dismissed on merits on 06.08.2010. They then filed an appeal against that dismissal on 03.09.2010, which was withdrawn on 11.06.2013. The very next day, on 12.06.2013, they filed a regular appeal under Section 96(2) CPC challenging the ex-parte decree, along with an application for condonation of delay of four years, ten months and eight days. The Additional District Judge, Baramati condoned the delay, holding that the time spent in pursuing the Order IX Rule 13 proceedings constituted sufficient cause. However, the High Court, in a writ petition filed by the respondents, set aside the condonation order, relying on its earlier decision in Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar, and held that the two remedies cannot be pursued consecutively. The Supreme Court framed two issues: whether time spent in Order IX Rule 13 proceedings constitutes sufficient cause under Section 5 of the Limitation Act, 1908, and whether a regular appeal under Section 96(2) CPC is barred after dismissal of an Order IX Rule 13 application. The Court held that the remedies under Order IX Rule 13 CPC and Section 96(2) CPC are concurrent and not mutually exclusive; the scope of enquiry is different. The right of appeal under Section 96(2) is a statutory right and cannot be deprived merely because the defendant pursued and lost an Order IX Rule 13 application. The Court further held that the time spent bona fide in pursuing the alternative remedy can constitute sufficient cause for condonation of delay, and the words 'sufficient cause' should be liberally construed. The Court set aside the High Court's order and restored the order of the District Court condoning the delay, directing the first appellate court to hear the appeal on merits.
Headnote
A) Civil Procedure - Ex-parte Decree - Remedies - Order IX Rule 13 CPC and Section 96(2) CPC - A defendant against whom an ex-parte decree is passed has two remedies: (i) file an application under Order IX Rule 13 CPC to set aside the decree on grounds of non-service or sufficient cause for non-appearance, or (ii) file a regular appeal under Section 96(2) CPC challenging the decree on merits. These remedies are concurrent and not mutually exclusive. The scope of enquiry under the two provisions is entirely different; dismissal of an application under Order IX Rule 13 CPC does not bar the filing of an appeal under Section 96(2) CPC. (Paras 10-12) B) Limitation Act, 1908 - Section 5 - Sufficient Cause - Condonation of Delay - Time spent in pursuing proceedings under Order IX Rule 13 CPC can constitute 'sufficient cause' for condoning delay in filing an appeal under Section 96(2) CPC, provided the delay is not intentional and the defendant acted bona fide. The words 'sufficient cause' should be liberally construed to advance substantial justice. (Paras 14-15) C) Civil Procedure - Right of Appeal - Statutory Right - Section 96(2) CPC - The right of appeal under Section 96(2) CPC is a statutory right and cannot be deprived merely because the defendant filed and lost an application under Order IX Rule 13 CPC. The defendant is entitled to challenge the ex-parte decree on merits in the appeal, including on grounds of lack of jurisdiction or insufficiency of evidence. (Paras 12-13)
Issue of Consideration
Whether the time spent in proceedings under Order IX Rule 13 CPC constitutes 'sufficient cause' under Section 5 of the Limitation Act, 1908 for condoning delay in filing an appeal against an ex-parte decree, and whether a regular appeal under Section 96(2) CPC is barred when an application under Order IX Rule 13 CPC has been dismissed on merits.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned judgment of the High Court dated 20.08.2014, and restored the order of the Additional District Judge, Baramati dated 20.02.2014 condoning the delay in filing the appeal. The first appellate court was directed to hear the appeal on merits and dispose it of in accordance with law, preferably within six months from the date of receipt of the copy of the judgment.
Law Points
- Sufficient cause for condonation of delay
- Time spent in pursuing alternative remedy under Order IX Rule 13 CPC
- Right of appeal under Section 96(2) CPC not barred by dismissal of Order IX Rule 13 application
- Liberal construction of sufficient cause
