Case: Mamtaz &amp; Ors Vs. Gulsuma Alias Kulusuma

2. The facts leading to the present appeal, which are necessary for the purpose of disposal of the present appeal in nutshell are as under:-2.1 That the appellants herein filed a suit for declaration and possession. The Trial Court by judgment and decree dated 08.01.2018 decreed the said suit. As such the said suit proceeded ex parte and the judgment and decree passed by the Trial Court was ex parte decree.2.2 Two remedies were available to the defendant – one, filing an application for setting aside the ex parte decree under Order IX Rule 13 of the Civil Procedure Code (hereinafter referred to as CPC) and the other preferring an appeal against the judgment and decree passed by the Trial Court.2.3 The defendant – respondent herein preferred the second option and preferred appeal before the First Appellate Court against the judgment and decree passed by the Trial Court. There was a delay of 2 years and 7 months in preferring the first appeal. Therefore, the respondent herein – original defendant -the appellant before the First Appellate Court filed I.A. No. 1 of 2020 requesting to condone the delay. However, the appellant before the First Appellate Court – original defendant for whatever reason withdrew the said application for condonation of delay.2.4 That the first appeal came up before the First Appellate Court. As there was no fresh application to condone the delay and the earlier condonation of delay application requesting to condone the delay of 2 years and 7 months was withdrawn, by order dated 10.12.2020, the First Appellate Court dismissed the first appeal on the ground that in absence of any application to condone the delay the appeal under Section 96 CPC shall not maintainable. Thus, the First Appellate Court dismissed the first appeal solely on the aforesaid ground of limitation and the First Appellate Court did not go into the merits of the case at all.2.5 Feeling aggrieved and dissatisfied with the order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of any delay condoned application, the respondent herein – original defendant – appellant before the First Appellate Court preferred second appeal before the High Court. By the impugned judgment and order, the High Court has allowed the said second appeal and has not only set aside the judgment and order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of delay condoned application, but has also set aside the ex parte judgment and decree passed by the Trial Court as if the High Court was considering the order passed in an application under Order IX Rule 13 CPC and has also quashed and set aside the judgment and decree passed by the Trial Court and has remanded the matter to the Trial Court for fresh decision of the suit in accordance with law.2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original plaintiffs have preferred the present appeal.

Reasoning:
4. Having heard the learned counsel for the respective parties and considering the facts narrated hereinabove, we are of the opinion that the impugned judgment and order passed by the High Court quashing and setting aside the judgment and decree passed by the Trial Court and remanding the matter back to the Trial Court is unsustainable.5. It is required to be noted that what was challenged before the High Court was the order/judgment and order passed by the First Appellate Court dismissing the first appeal under Section 96 of the CPC as not maintainable in absence of any delay condoned application. There was no decision by the First Appellate Court on merits. If the High Court was of the opinion that the First Appellate Court erred in not condoning the 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 First Appellate Court dismissing the appeal on the ground of limitation and thereafter remand the matter to the First Appellate Court to decide the appeal on merits.6. From the impugned judgment and order passed by the High Court, it appears that the High Court proceeded further with the hearing of the appeal as if the High Court was considering the appeal against the order passed on an application under Order IX Rule 13 CPC, whereas the 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 the procedure known to law under the provisions of the CPC. Therefore, the impugned judgment and order passed by the High Court is unsustainable.