Case: Rani Choudhury Vs. Lt. Col. Suraj Jit Choudhury

The appellant filed a petition against the respondent under S. 13 of the Hindu Marriage Act for the dissolution of her marriage with respondent and for a decree of divorce. The said petition was filed by the appellant on 1.9.79 and the appellant obtained an ex- parte decree on 6-12-1979. It appears that on 10-11-79 the respondent husband had addressed a letter to the Court requesting the Court for an adjournment of the case fixed on 6-12-1979 on the ground that because of special assignment it would not be possible for him to be present in Court on that day. The Court refused to grant an adjournment and on that date an ex-parte decree fo r divorce was passed in favour of the appellant. The respondent husband preferred an appeal against the ex-parte decree in the High Court. As the appeal had been filed in the High Court beyond time, the respondent husband also made an application under S. 5 of the Limitation Act for condonation of delay in filing the appeal. By its judgment and order dated 17-3-1981, the High Court dismissed the application tor condonation of delay, holding that no sufficient cause for condonation had b een made out. The High Court by the same order and Judgment also dismissed the appeal holding-"the appeal being barred by time is dismissed". The respondent moved an application before the Trial Court under O. 3, rule 13 of the Code of Civil Pr ocedure for setting aside the ex-parte decree. The respondent had also moved an application under S. 5 of the Limitation Act for condonation of delay in making the application under O.9, rule 13 of the C.P. Code. The learned Trial Judge held th at no sufficient cause had been made out for condonation of delay and in that view of the matter the learned Trial Judge dismissed both the applications. Against the order of the Trial Judge, the respondent filed an appeal in the High Court. The main co ntention of the husband, the appellant in the High Court, was that the Trial Court was in error in coming to the conclusion that no sufficient cause for condonation of delay had been made out and the Trial Court had also erred in not setting asid e the ex-parte decree as there was sufficient cause for non-appearance of the husband on the date fixed for the hearing of the petition for divorce. On behalf of the wife, the respondent in the appeal before the High Court, it was urged that the Trial Court was clearly right on merits in coming to the conclusion that no sufficient cause had been made out for condonation of delay and for setting aside the decree and it was further urged that in view of the provisions contained in the Explanation in order 9, rule 13 of theCode of Civil Procedure, the application for setting aside the ex-parte decree was not maintainable, as the appeal preferred by the husband against the ex-parte decree had already been dismissed by the H igh Court. The High Court for reasons recorded in its Judgment dated 14.9.1981 came to the conclusion that sufficient cause bad been made out by the husband for condonation cf delay in presenting the application under O. 9, rule 13 beyond t he prescribed time, that sufficient cause had been made out by the husband for his non-appearance at the hearing of the petition on 6-12-1979 when the ex-parte decree for divorce was passed and that the Explanation in order IX, rule 13 did not creat e any bar to the maintainability of the application under order 9, rule 13, as the appeal against the ex-parte decree had been dismissed not on merits but on the ground of Limitation. The High Court held:"Thus I am of the view that the dispos al of an appeal against the ex-parte decree means disposal on merits for debarring the defendant applicant from filing or continuing an application for setting aside the ex-parte decree under order 9 rule 13 of the code. If an application for condo nation of delay in filing appeal has not been accepted it means no appeal was preferred in law and dismissal of appeal as barred by time would not be disposal of the appeal as contemplated under Explanation to order 9 rule 13 of the Code. I, therefore, hold that the appellants application under order 9, rule 13 of theCode of Civil Procedure isthe Judgment and order of the High Court this appeal has been preferred by the wife with special leave granted b y this Court

Reasoning:
Order 9, rule 13 makes provision for the setting aside of an ex-parte decree against the defendant. It lays down the con ditions and also the procedure for the setting aside of an ex-parte decree. The Explanation was introduced into this provision by theCode of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) and it has come into force from 1.2 1977. The proc eeding by the wife was initiated on 1.9.1979 and the ex-parte decree of divorce in her favour was passed on 6.12.1979. The application by the husband has been made for setting aside this ex-parte decree. The Explanation, therefore, operates; the r eal question being whether in the facts and circumstances of this case, the bar created by the Explanation to the setting aside of an ex-parte decree is attracted to the presentplain reading of the Explanation clearly indicates t hat if any appeal against an ex-parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex-parte decree under order 9, rule 13 of the Code will be entertained. The words used in the Explanation are clear and unambiguous. The language used in the explanation clearly suggests that where there has been an appeal against a decree passed ex-parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under order 9, rule 13 of the Code for setting aside the ex-parte decree. An appeal may be disposed of on various grounds. It may be disposed of after proper hearing on merits and this is usually the normal way of disposal of an appeal. An appeal may be disposed of also for non prosecution thereof. Though the dismissal of an appeal on the ground of non prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non-prosecution results in the disposal thereof. An appeal may also be dismissed on the ground of limitation, if condonation of delay in filing the appeal is not allowed by the Court. An appeal may also be liable to be dismissed for non compliance with any condition relating to the filing of the appeal and also for other reasons. An appellant is also entitled to withdraw the appeal and the withdrawal of the appea l also results in the disposal of the appeal, though in such a case no merits of the appeal are adjudicated upon. The language used in the Explanation makes it clear that the withdrawal of an appeal is considered to be disposal of the appeal, a s contemplated in the Explanation. It is significant to note that though an appeal may be disposed of on very many grounds the Legislature has thought it fit to provide in the Explanation that only when an appeal against an ex-parte decree is dispo sed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under order 9, rule 13 of the Code for setting aside the ex-parte decree will not apply. The Legislature must be presumed to kno w that there are various ways of disposal of an appeal. The Legislature has, however, thought it fit to provide that when an appeal has been preferred against an ex-parte decree, the disposal of the appeal on any ground excepting the solita ry ground of disposal of the appeal by withdrawal of the same by the appellant, will create a bar to the maintainability of an application under Order 9, rule 13 of theCode of Civil Procedure. By specifically providing in the Explanation that t he disposal of any appeal from the ex- parte decree on any ground other than the solitary ground of withdrawal of the appeal by the appellant, the legislative intent is made manifestly clear that in all other cases of the disposal of the appeal on a ny other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under order 9, rule 13 and no application will lie under order 9, rule 13 for the setting aside of an ex-parte decree. Wi thdrawal of an appeal by an appellant does not result in any adjudication on merits. Even then, the withdrawal of an appeal is still considered to be a disposal of the appeal; and the disposal of an appeal only on this ground of withdrawal of the appe al by the appellant, it is made clear in the Explanation, will not create any bar to the maintainability of the application under order 9, rule 13 of theCode of Civil Procedure. On a proper interpretation of the explanation we are of the opinion t hat where there has been an appeal against an ex- parte decree and the appeal has not been withdrawn by the appellant and has been disposed of on any ground, the application under order 9, rule 13 of theCode of Civil Procedure will not lie and cannot be entertained.In the instant case, an appeal had admittedly been filed against the ex-parte decree. The appeal was beyond time. The appellant had not withdrawn the appeal. The appellant had filed an application for condonation of delay in preferring the appeal. The application for condonation of delay had been rejected by the Court and the appeal had been dismissed an the ground of limitation. The dismissal of the appeal on the ground of limitation resulted in dis posal of the appeal though not on merits. The appeal filed against the ex-parte decree was, therefore, disposed of on grounds other than the ground that the appellant had withdrawn the appeal. The application under order 9, rule 13 after the dis posal of the appeal, therefore, became incompetent in view of the provisions contained in the Explanation and could not therefore be entertained by the Court. The view expressed by the High Court must, therefore. be held to bewords used in Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal on merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal. The Explanation speaks of "the appeal has been disposed of on any ground other then the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the appeal may be on any ground and the withdrawal of on appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal, and, the disposal of the appeal from the ex-parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation. If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the Trial Court with the decree of the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court. The legislature could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal. The words used, "disposal of the appeal on any ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non- prosecution, Though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the Trial Court appealed against being merged with any decree of the Appellate Court on the disposal of the appeal.The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an appeal from the ex-parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal b y the appellant, the explanation is attracted, and the application for setting aside the ex-parte decree becomes in-competent after the disposal of the appeal and cannot bein our view, the application for setting aside the ex-par te decree does not lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become necessary for us to go into the merits of the application to consider whether sufficient cause had been shown by the respondent for his nonappearance at the hearing at the date fixed and also for not preferring the application with n the time prescribed.