BHIVCHANDRA SHANKAR MORE versus BALU GANGARAM MORE & ORS.
[2019] 7 S.C.R. 298, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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BHIVCHANDRA SHANKAR MORE
v.
BALU GANGARAM MORE & ORS.
(Civil Appeal No. 4669 of 2019)
MAY 07, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Code of Civil Procedure, 1908: Or. IX r. 13 and s. 96(2) –
Setting aside decree ex parte against defendant – Suit for partition
by respondents no.1 to 13 decreed ex-parte – Application u/Or. IX
r. 13 by the appellant and respondents No.14 and 15 – Dismissed
by the trial court – Appeal by appellant and respondents No.14
and 15 – Withdrawal of the said appeal after three years – On the
next day, the appellant and respondents No.14 and 15 filed an appeal
challenging the ex-parte decree in the suit – Parties also filed
application for condonation of delay in filing appeal against ex
parte decree, which was allowed – Writ petition there against allowed
by the High Court – On appeal, held: Right of appeal u/s. 96(2) 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 u/Or. IX r.13 has been dismissed – Time spent in pursuing
the application u/Or. IX r.13 to set aside the ex-parte decree to be
taken as “sufficient cause” for condoning the delay in filing the
first appeal – Order of the High Court cannot be sustained and is
set aside – Delay in filing the appeal against the judgment passed
in the suit is condoned and the appeal filed by appellant and
respondents No.14 and 15 is restored.
Allowing
the appeal, the Court
HELD: 1.1 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
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“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 dismissed. The right of appeal under Section 96(2) is a
statutory right and the defendant cannot be deprived of the
statutory right of appeal. [Para 11, 12] [304-D-G]
1.2 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 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.
[Para 14] [306-C-E]
1.3 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. [Para 15] [306-E-F]
1.4 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. 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. [Para 16, 17] [307-D-E; G-H]
BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM
MORE & ORS.
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1.5 As per Section 97 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 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 on merits, notwithstanding the
dismissal of their application filed under Order IX Rule 13.
[Para 18] [308-A-C]
1.6 In the facts and circumstances of the case, the time
spent in pursuing the application under Order IX Rule 13 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 set aside. The delay in filing the appeal against
the judgment passed in the suit is condoned and the appeal filed
by the appellant and respondents No.14 and 15 is restored.
[Para 19, 20] [308-D-E]
Jotiba Limbaji Kanashenavar v. Ramappa Jotiba
Kanashenavar 1937 Vol. XL Bom Law Reporter
957 ; B. Madhuri Goud v. B. Damodar Reddy (2012)
12 SCC
693 ; Bhanu Kumar Jain v. Archana Kumar
and Another (2005) 1 SCC 787 : [2004] 6 Suppl. SCR
1104 ; N. Balakrishnan v. M. Krishnamurthy (1998) 7
SCC 123 : [1998] 1 Suppl. SCR 403 - referred to.
Case Law Reference
1937 Vol.XL Bom. Law Reporter 957 referred to
Para 5
(2012) 12 SCC 693
 referred to
Para 6
[2004] 6 Suppl. SCR 1104
 referred to
Para 12
[1998] 1 Suppl.  SCR  403
 referred to
Para 16
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4669
of 2019.
From the Judgment and Order dated 20.08.2014 of the High Court
of Judicature at Bombay in Writ Petition No. 3290 of 2014.
Sushil Karanjkar, K. N. Rai, Advs. for the Appellant.
Vinay Navare, Sr. Adv., Ms. Gwen Karthika, Ms. Abha R.
Sharma, M. Y. Deshmukh, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. 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 ex-parte 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 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
BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM
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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 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.
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
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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 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 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
BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM
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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 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 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 under Order IX Rule 13 CPC was filed and dismissed.
Observing that the right of appeal is a statutory right and that the litigant
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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.”
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
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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 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. Krishnamurthy (1998)
7 SCC 123, this Court held as under:-
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 “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.
BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM
MORE & ORS. [R. BANUMATHI, J.]
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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.
Nidhi Jain
Appeal allowed.