2019 (5) TMI 1695 - SC - Indian Laws

Condonation of delay in filing first appeal - validity of exparte decree passed - sufficient cause to condone delay present or not - partition and separate possession of the suit property - right to appeal - regular appeal under Section 96(2) CPC - 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? - HELD THAT - 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 2004 (12) TMI 676 - SUPREME COURT 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 cannot be deprived of such right it was held 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. 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. 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 - 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. 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 - impugned judgment of the High Court cannot be sustained and is liable to be set aside - Appeal allowed.

Summary

Issues Involved:
1. Whether the time spent in the proceedings taken to set aside the ex-parte decree constitutes "sufficient cause" within the meaning of Section 5 of the Indian Limitation Act, 1908, to condone the delay in preferring an appeal against the ex-parte decree on merits?
2. When an application filed under Order IX Rule 13 CPC has been dismissed on merits, whether a regular appeal under Section 96(2) CPC is barred?

Issue-wise Detailed Analysis:

1. Sufficient Cause for Condonation of Delay:
The Supreme Court examined whether the time spent by the appellant in pursuing an application under Order IX Rule 13 CPC to set aside the ex-parte decree can be considered "sufficient cause" for condoning the delay in filing an appeal under Section 96(2) CPC. The Court noted that the appellant and respondents No.14 and 15 had filed an application under Order IX Rule 13 CPC, which was dismissed on 06.08.2010. They then filed an appeal against this dismissal, which was withdrawn on 11.06.2013. Subsequently, they filed an appeal against the ex-parte decree on 12.06.2013, with a delay of four years, ten months, and eight days. The District Court had condoned this delay, recognizing that the appellants had spent time in wrong proceedings and did not get an opportunity to contest the suit on merits.

The Supreme Court emphasized that "sufficient cause" should be liberally construed to advance justice, especially when there is no inaction, negligence, or lack of bonafide imputable to the appellant. The Court referred to the principle that rules of limitation are not meant to destroy the rights of parties but to ensure that remedies are sought promptly. The Court found that the appellant and respondents No.14 and 15 were not grossly negligent and had pursued their remedies in good faith.

2. Bar on Regular Appeal under Section 96(2) CPC:
The Supreme Court clarified that the scope of Order IX Rule 13 CPC and Section 96(2) CPC are entirely different. An application under Order IX Rule 13 CPC is to set aside an ex-parte decree on grounds of non-service of summons or sufficient cause for non-appearance, while an appeal under Section 96(2) CPC challenges the ex-parte decree on merits. The Court held that pursuing a remedy under Order IX Rule 13 CPC does not bar the defendant from filing an appeal under Section 96(2) CPC if the application is dismissed.

The Court cited its judgment in Bhanu Kumar Jain v. Archana Kumar, which established that the right to appeal is a statutory right and cannot be curtailed merely because an application under Order IX Rule 13 CPC was dismissed. The High Court's view that remedies must be pursued simultaneously and not consecutively was deemed too rigid. The Supreme Court held that each case must be considered on its facts, and unless there is evidence of dilatory tactics or lack of bonafide, the delay in filing the appeal should be condoned to avoid depriving the defendant of the statutory right to appeal.

Conclusion:
The Supreme Court set aside the High Court's judgment, condoning the delay in filing the appeal against the ex-parte decree. The appeal filed by the appellant and respondents No.14 and 15 was restored, and the first appellate court was directed to proceed with the appeal in accordance with the law. The Court made it clear that no opinion was expressed on the merits of the case.