BHIVCHANDRA SHANKAR MOREversusBALU GANGARAM MORE & ORS.

298                      [2019]
               SUPREME COURT    7 S.C.R. 298
                             REPORTS                       [2019] 7 S.C.R.


A                    BHIVCHANDRA SHANKAR MORE
                                        v.
                     BALU GANGARAM MORE & ORS.
                         (Civil Appeal No. 4669 of 2019)
B                                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
C
      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
D     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
E
      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
F     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
G     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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                                      298
  BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM                                299
                 MORE & ORS.

“sufficient cause”, the court may set aside the ex-parte decree            A
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
                                                                           B
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]                         C
       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             D
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                E
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              F
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          G
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]

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300            SUPREME COURT REPORTS                        [2019] 7 S.C.R.


A           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
B
      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
C     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
D     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]
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
F           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
G     (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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  BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM                                       301
                 MORE & ORS.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4669                      A
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.                    B
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             C
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   D
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            E
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        F
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                  G
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                H
302            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A     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
B
      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
C     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.
D
             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
E     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
F     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
G     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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  BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM                                     303
          MORE & ORS. [R. BANUMATHI, J.]

respondents No.14 and 15 were in the neighbouring village for some              A
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
                                                                                B
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          C
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            D
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          E
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          F
            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?                                         G
      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
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304             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A     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.
B
              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
C     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
D     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-
E     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
F     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
G     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
H
  BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM                                    305
          MORE & ORS. [R. BANUMATHI, J.]

cannot be deprived of such right, in paras (36) and (38), it was held as       A
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)       B
      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           C
      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    D
      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                    E
      “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                    F
      (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       G
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
                                                                               H
306             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A           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
B
            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
C     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
D     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.
E
              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:-
F
            “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
G           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)
H     7 SCC 123, this Court held as under:-
  BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM                                     307
          MORE & ORS. [R. BANUMATHI, J.]

       “11. Rules of limitation are not meant to destroy the rights of          A
      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
                                                                                B
      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       C
      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
                                                                                D
      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.                                                           E

       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              F
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          G
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.

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308                SUPREME COURT REPORTS                        [2019] 7 S.C.R.


A            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
B
      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,
C     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
D     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
E     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.
F

      Nidhi Jain                                                    Appeal allowed.




G




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