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TMI Blog2019 (5) TMI 1695X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nverted 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exparte 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 cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 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 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 eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Therea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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