Case: BHIVCHANDRA SHANKAR MORE Vs. BALU GANGARAM MORE

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 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 defendants4. 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13 CPC, on 03.09.2010, the appellant and respondents No.14 and 15 filed Civil Appeal No.108 of 2010 and the same was withdrawn on 11.06.2013.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 ex- parte 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 the ex-parte decree5. 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.

Reasoning:
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 ex- parte on 04.07.2008. The appellant and respondents No.14 and 15 filed application under Order IX Rule 13 CPC on 15.10.2008 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 days10. 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 merits11. 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 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 ex- parte 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 dismissed12. 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.14. The above observation of the High Court that the remedies provided as simultaneous and cannot be converted into consecu- tivet be applied in a rigid manner and as a strait- jacket formula. It has to be considered depending on the facts and circumstances of each case and whether the defendant in 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 con- secutively, 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 merits15. 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.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 delay17. 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 partition18. 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 CPC19. 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.