IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 81 OF 2011
Mr. Suresh G. Ramnani,
Versus
Mrs. Aurelia Ana da Piedade
Miranda
CORAM :- S.C. DHARMADHIKARI, J.
Date :- 2nd March, 2012.
By this Second Appeal, the appellant-original defendant
No.1(c) has impugned and challenged the decree/order dated 26 th April,
2007 in Civil Misc. Application No. 101/2004 delivered in an Appeal,
which was filed to impugn
the Judgment and Decree dated 26 th
August, 2003 of the Civil Judge, Jr. Division at Margao in Regular
Civil Suit No. 21/1985. The said suit has been filed by the respondents
No.1 to 4 to this appeal.
2.
Respondent No.5 is the original defendant No.3 and
respondent No.6 to this appeal is the original respondent No.5.
3.
It would be convenient to give a brief factual background
which would be necessary for formulation and eventual consideration
and determination of the substantial questions of law.
4
4.
The suit from which the appeal arises was for declaration
and injunction. There are large chunk of survey numbers of a larger
property admeasuring 3,36,475 sq. metres which belonged to one Luis
Francisco de Piedade Miranda
who was married to Mrs. Aurelia
Coutinho Miranda. In the inventory proceedings initiated upon the
death of said Luis Miranda, the property came to be allotted to Mrs.
Aurelia Coutinho Miranda. The said Aurelia expired and subsequent
thereto a Deed of Partition was executed amongst all her heirs on 9 th
January, 1950. The said property, to the exclusion of one specific
portion (1/8th) of it, was allotted to Aureliano Piedade Miranda, the
son of Aurelia Coutinho Miranda and father of plaintiff Nos. 1 and 3.
The said Aureliano died on 15 th August, 1955, leaving behind his
widow Alba Pinto Dias e Miranda and as his sole and universal heirs,
his two daughters the plaintiffs No.1 and 3. The widow Mrs. Alba died
on 28th July, 1971. Plaintiff Nos. 1 and 3 are, therefore, the sole and
exclusive owners of the said property together with their respective
husbands, excluding the said 1/8 th portion which was covered by the
Deed of Partition granted to them.
4.
On 9th April, 1973, the case of the plaintiffs is that, they
entered into an agreement with defendant No.1 for the sale of the said
entire property. The property, therefore, was divided into 12 plots.
These were further sub-divided into 386 plots. Plots No. 8, 10, 11 and
12 were sold to the original defendant No.1 by different sale deeds.
Plots No. 1 to 7 and 9 have not been sold to defendant No.1 and they
continued to belong to the plaintiffs and the plaintiffs claim that they
are in physical possession of the same.
In the record of rights,
prepared for the village of Guirdolim, these survey numbers stand
recorded in the name of M/s. G. Ramani and Associates, a
proprietorship concern of
original defendant No.1.
Several
opportunities were given to the defendant No.1 to perform his part of
agreement and when he failed to perform the same, a notice was
published in the news paper in the year 1983 – 1984, warning public
that the defendants No.1, 2 and 3 are trying to sell the land which does
not belong to them and they have now entered into some agreement
with defendant No.4 on 8 th January, 1985, and the sale proposed is
without any title.
It is on these allegations that the plaintiffs seek
relief.
5.
It is stated that the suit was defended by the defendants
and yet, it came to be decreed ex parte by the trial Court.
6.
Aggrieved by this ex parte decree, an application was
made to set aside the same (Civil Misc. Application No. 28/2003/II).
This application was filed by the present appellant-original defendant
No.1(c). This application was contested by the original plaintiffs-
respondents No.1 to 4 to this appeal and the said application came to
be dismissed by the Trial Court on 7th August, 2004.
7.
It is common ground that the present appellant filed Misc.
Civil Appeal No.71/2004 in the District Court, challenging the Order
dated 7th August, 2004 in Civil Misc. Application No.28/2003 invoking
Order IX, Rule 13 of the Civil Procedure Code (CPC). It is further
common ground that on the same day i.e. 16 th September, 2004, a
substantive appeal, challenging ex parte decree was filed in the lower
appellate Court.
substantive
However, there was a delay in filing the said
appeal.
Accordingly,
Civil
Misc. Application
No.101/2004, seeking condonation of delay in filing this appeal came
to be filed. Both the matters were allotted to the learned District
Judge, Margao. However, the learned District Judge took up Civil
7
Misc. Application No.101/2004 for hearing and kept
Misc. Civil
Appeal No.71/2004 pending. By the impugned Judgment dated 26 th
April, 2007, the said Civil Misc. Application No.101/2004, seeking
condonation of delay in filing the substantive first appeal before the
lower Appellate Court, came be to rejected.
8.
Against this rejection, the appellant before me had filed
Writ Petition under Article 227 of the Constitution of India, being Writ
Petition No. 381/2007 in this Court.
9.
Thereafter, Miscellaneous Civil Appeal No.71 of 2004
was taken up and the learned District Judge dismissed it by her Order
dated 22nd April, 2008. Aggrieved by the dismissal of that application,
Writ Petition No.372/2008 was filed in this Court.
10.
It is common ground that both these writ petitions were
placed for admission before the learned Single Judge of this Court. By
his order dated 18th October, 2010, learned Single Judge of this Court
held that as far as the order passed by the lower Appellate Court on 26 th
April, 2007 is concerned,
dismissal of
the Civil Miscellaneous
8
Application No.101 of 2004 amounts to a decree inasmuch as by the
said order the substantive first appeal has been dismissed.
That
substantive first appeal impugns and challenges the Decree of the
Trial Court dated 26th August, 2003. Since dismissal of the application
for condonation of delay in filing the substantive first appeal confirms
the decree of the trial Court, the order of the lower Appellate Court
would amount to a decree, which will be an appellate Decree and,
therefore, a second appeal would be maintainable. Observing thus, the
learned Single Judge dismissed Writ Petition No.381/2007.
11.
In so far as Writ Petition No.372/2008 is concerned, that
was directed against the order of the lower Appellate Court in Misc.
Civil Appeal No.71/2004, passed on an application under Order IX,
Rule 13 CPC of the present appellant/original defendant No.1(c) to set
aside the ex-parte decree of the Trial Court. That order has been not
interfered with by the leaned Single Judge on the ground that a party
can simultaneously file an application under Order IX, Rule 13 CPC
and an appeal against ex parte decree under Section 96(2) of CPC.
However, if an appeal under Section 96(2) of CPC is dismissed, in
the light of the explanation to Order IX, Rule 13 CPC, which is to be
9
strictly construed, an Appeal would not be maintainable to challenge
the order passed, dismissing an application to set aside the ex parte
Decree, although the converse is not true. Therefore, the Judgment of
the Supreme Court which was relied upon, viz. Bhanu Kumar Jain vs.
Archana Kumar and another, reported in (2005) 1 SCC 787 and other
judgments noted by the learned Single Judge, would not assist the
present appellant/petitioner in Writ Petition No.373/2008. However,
holding that a second appeal along with application seeking
condonation of delay has already been filed, then, it is a correct remedy
which has been resorted to. Concluding thus, both the writ petitions
came to be dismissed.
12.
This is how the second appeal, after condonation of delay
in filing the same, has been placed for admission before me.
13.
Mr. Dessai, learned Senior Counsel, appearing on behalf of
the appellant, submits that the lower Appellate Court has committed a
grave error of
law in dismissing the Civil Misc. Application No.
101/2004, seeking condonation of delay in filing the substantive appeal
under Section 96(2) CPC to impugn and challenge the decree of the
10
Trial Court dated 26th August, 2003 in Regular Civil Suit No.21/1985.
The result of such dismissal and relying upon the principle that the
appeal itself is not maintainable, is a grave travesty of justice.
The
appellant now has no opportunity to impugn and challenge the decree
of the Trial Court, on merits.
complete
By some hyper-technical view and
misreading of the relevant provisions of law, the lower
Appellate Court proceeded to dismiss the first appeal.
The
condonation of delay was sought on the ground that the appellant,
under legal advice, chose to first make an application to set aside the
Trial Court's ex parte Decree by invoking Order IX, Rule 13 CPC in
that behalf. That Civil Misc. Application came to be dismissed by the
Trial Court on 7th August, 2004. Against that dismissal, the appellant
was advised
to avail of two remedies.
He was also advised to
challenge this order by way of an appeal under Order XLIII, Rule 1
CPC., which was invoked by him by filing Misc. Civil Appeal 71/2004.
That was filed on 16th September, 2004.
At the same time, he was
advised to file a substantive first appeal by invoking Section 96 (2)
CPC
to challenge the ex parte decree of the Trial Court, on merits.
That he did by the instant first appeal. However, finding that there
was a delay of 386 days in filing the said appeal, that he filed an
11
application seeking condonation of delay, viz. Civil Misc. Application
No.101/2004. That application has been dismissed by the impugned
order and which, therefore, amounts to a decree.
14.
Mr. Dessai submits that once it is the settled position that
the order of the trial Court amounts to a decree and the second appeal
would be maintainable, then, all that he is required to satisfy this Court
is that this second appeal gives rise to substantial questions of law. In
his submission, the substantial question of law is that the lower
Appellate Court has completely misconstrued and misread Order IX,
Rule 13 CPC and the explanation below the same. That explanation
will have no application to the remedies of appeal. If the Trial Court's
ex parte decree can be challenged by filing an appeal that would be a
challenge to the decree on merits. The decree can be
set side by
filing application to set aside the ex parte decree before the Trial Court
and that application is made to
the lower
Court.
However, the
explanation below Order IX, Rule 13 of CPC, prohibits availing of
twin remedies. If one, namely filing of an appeal to challenge the
decree on merits is chosen and availed of, then, the second one of
approaching the
trial Court is not available.
Beyond this, the
explanation says nothing.
How this explanation could be invoked
when the request is to condone the delay in filing the substantive first
appeal before the lower Appellate Court has not been explained by the
learned Judge at all.
The learned Judge had before her a simple
application, seeking condonation of delay in filing the first appeal
under Section 96(2) of CPC., to challenge the ex parte decree of the
Trial Court on merits. Her plain duty was to consider as to whether the
appellant has made out sufficient cause to condone the delay or not.
That she does not hold otherwise, but, yet, she proceeds to dismiss the
appeal on the specious ground that the principle enshrined in the
Explanation to Order IX, Rule 13 CPC would hold good, is a grave
error of law.
15.
Mr. Dessai has taken me through the order of the lower
Appellate Court and particularly the findings in para 14 and submitted
that the learned Judge was aware that Misc. Civil Appeal No. 71/2004,
challenging the refusal of the Trial Court to set aside its ex parte decree
was pending. Prior there to the substantive appeal was taken up
inasmuch as by placing on Board the application seeking condonation
of delay in filing the same . In that situation, how this application
seeking condonation of delay is not maintainable, has not been
clarified and explained at all. There is a complete non-application of
mind. There is complete confusion and chaos inasmuch as Order IX,
Rule 13 CPC would disable the appellant to go back to the trial Court
and seek setting aside of the decree passed exparte, because a
substantive appeal is filed. That provision has no application to the
power of the Appellate Court to set aside the decree, as also distinct
power under Order XLIII, Rule 1 CPC. There is no provision in law, if
one peruses Order XLIII, Rule 1 to file an appeal against the order of
the Trial Court refusing to set aside an ex parte decree and an appeal
under Section 96(2) of CPC to challenge that ex parte decree on merits
and one must not survive if the other is dismissed. One is scrutiny of
the order passed refusing to set aside the ex parte decree; whereas the
another is a substantive power to scrutinize the decree, on merits. The
confusion in the mind of the learned lower Appellate Judge has
resulted in grave miscarriage of justice, according to Mr. Dessai.
16.
On the other hand, Mr. Diniz, learned Counsel appearing
on behalf of respondents No.1 to 4-original plaintiffs to the suit, would
submit that there is no substantial question of law arising for
determination and consideration of this Court. This is nothing but
repetition of the same pleas as were raised in the writ petition. Once
the writ petition to challenge the order passed on 26 th April, 2007 is
dismissed and even another writ petition being Writ Petition No.
372/2008, challenging the order dated 22 nd April, 2008 is dismissed,
then, this Court cannot entertain this second appeal. Entertaining this
second appeal would mean the same factual observations and findings
would be reopened which are concluded by the orders passed by the
lower Appellate Court on 26 th April, 2007 and 22 nd April, 2008. The
appellant now cannot urge that he is prejudiced, much less there is any
miscarriage of justice, because of the lower Appellate Court's refusal
to condone the delay in filing the substantive first appeal or refusing to
interfere in the order of the trial Court passed under Order IX, Rule
CPC., dated 7th August, 2004. Even, otherwise, none of the grounds set
out in the memo of appeal and, particularly grounds 1 to 10 in the
Memo of Appeal in this second appeal, so also the additional grounds
at page 71 of the paper book would make out any substantial question
of law. Mr. Diniz would submit that this is nothing, but an attempt to
reopen the concluded issue as to whether about refusal to exercise a
discretion in condoning the delay.
That discretion has not been
exercised in favour of the appellant for good reasons. There is nothing
in the order of the lower Appellate Court dated 26 th April, 2007 which
would make it erroneous, much less perverse or contrary to law. That
order envisages that the lower Appellate Court is refusing to uphold
the submission that sufficient cause is made out for condoning the
delay. Whether there is sufficient cause for condoning the delay and
explanation in that behalf is reasonable or not, is essentially a factual
matter and no question of law, much less substantial question of law
would arise from such an exercise. For all these reasons, according to
Mr. Diniz, there is no merit in this second appeal and the same deserves
to be dismissed.
17.
Both sides have relied upon the same decisions which have
been relied upon before Brother Justice A. P. Lavande,
when he
delivered the Order dated 18th October, 2010 in the two writ petitions.
18.
My endeavour is to find out as to whether any of the
principles that have been pressed into service by the learned lower
Appellate Court while refusing to condone the delay could be said to
be attracted and applied to the present case.
16
19.
To my mind, this second appeal gives rise to the the
substantial questions of law. Hence, appeal admitted on the following
substantial questions of law :
(A) Whether the lower Appellate Court has erred in law in
dismissing the application to condone the delay in filing
an appeal under Section 96 of CPC, challenging the ex
parte decree of the Trial Court on merits on the ground
that the appeal before it, as also the challenge to the order
in another appeal to the refusal to set aside the ex parte
decree of the Trial Court made on application under
Order IX, Rule 13 CPC by invoking the Order 43, Rule 1
CPC
cannot
lie
or
will
not
be
maintainable
simultaneously ?
(B) Whether dismissal of the application to condone the
delay in filing an Appeal under Section 96(2) of CPC is
permissible
on the ground that another Appeal under
Order XLIII, Rule 1 of CPC against the order of the Trial
Court under Order IX, Rule 13 of CPC is pending ?
(C) Whether there is any principle of law which would
enable the lower Appellate Court to refuse to condone the
delay on the above ground ?
17
(D) Whether the Explanation below Order IX, Rule 13
CPC., would at all be applicable
in exercise of the
appellate powers, in particular, in relation to condoning
the delay in filing an appeal challenging the ex parte
decree of the Trial Court, on merits ?
(E) Whether two appeals, as noted above, are permissible
or prohibited by law ?
Mr. Diniz waives service for respondents No.1 to 4. By consent of the
parties, heard forthwith.
20.
The instant application, on which the order dated 26 th
April, 2007 has been passed, seeks condonation of delay in filing an
appeal under Section 96(2) of CPC to challenge the ex parte decree of
the Trial Court dated 26 th August, 2003 on merits. That a refusal to
condone the delay would affirm the trial Court Decree and, therefore,
the decree of the lower Appellate Court would be amenable
to
challenge under Section 100 of CPC., is no longer an issue which must
detain me in view of the observations and conclusions of the Brother
Mr. Justice Lavande while disposing of the Writ Petition No. 381/2007.
That such an order amounts to a decree of the lower Appellate Court.
Therefore, the second appeal would be maintainable is the conceded
position.
21.
Now, what remains for consideration is as to how the
lower Appellate Court has approached
the application seeking
condonation of 386 days in filing an appeal under Section 96 CPC..
That
appeal was filed by the present appellant-original defendant
No.1(c) to challenge the ex parte decree of the trial Court dated 26 th
August, 2003, admittedly, on merits.
22.
In that application seeking condonation of delay, what the
appellant stated was that he came to know in September, 2003 that the
suit was decreed and after obtaining a certified copy of the Judgment
and Decree of the trial Court, he filed Civil Misc. Application
No.28/03/II on 25th September, 2003, seeking to set aside the ex parte
Decree. That application was dismissed by the Trial Court by an Order
dated 7th August, 2004. He was bonafide pursuing the said remedy and
was advised that if the order in the said Civil Misc. Application
No.28/03/II
goes against him, he will have to file appropriate
proceedings in appropriate appellate Court and, hence he did not file a
substantive appeal during the pendency of Civil Misc. Application
19
No.28/03/II. After he obtained the certified copy of the Order dated 7 th
August, 2004, he was advised by the Advocate appearing on his behalf
in Civil Misc. Application No.28/03 that the matter should be handed
over to a different Lawyer to file further proceedings and, accordingly,
he met the present Lawyer on or about 21st August, 2004. That the
present Lawyer called him on 14 th September, 2004 to prepare the
appeal to be filed against the order dated 7 th August, 2004. When he
approached the present Lawyer
on 14th September, 2004, he was
advised that an application to condone the delay caused in filing the
substantive appeal under Section 96(2) of CPC and register it, should
be presented to the lower Appellate Court.
23.
Not only did the applicant filed an affidavit in support of
the statements made in the Civil Misc. Application No.101/2004 before
the lower Appellate Court, but he also filed an affidavit of Advocate
Shri S. M. Tendulkar.
24.
The present respondent No.1, while contesting this
application, argued that the appeal is not maintainable in law since the
application filed by the applicant under Order IX, Rule 13 of CPC to
set aside the decree passed by the learned Civil Judge, Jr. Division,
Margao was dismissed and hence, the question of preferring an appeal
against the decree by invoking Section 96(2) of CPC does not arise at
all.
Since the appeal itself is not maintainable, the question of
considering the application for condonation of delay does not arise at
all. It was next stated in the reply that the present appellant has been
unnecessarily delaying the proceedings before the learned Trial Judge.
That the defendants were never personally present before the learned
trial Judge and that they used to appoint an attorney to appear in their
behalf. Advocate for the defendants also seldom used to appear in the
matter. Ultimately, the learned
Trial Judge, after giving numerous
opportunities, passed the ex parte Judgment and Decree. The conduct
is, therefore, such that the appellant is not entitled to any indulgence or
accommodation.
Thus, he is not entitled to any discretionary and
equitable relief.
25.
The learned Judge, on these pleas, has framed the
necessary point for determination and that is, whether the applicant has
made out a sufficient cause for not preferring the appeal against
judgment/decree dated 26.8.2003 in Regular Civil Suit no.21/1985/C
within the period prescribed by law.
26.
While assigning reasons, the learned Judge has adverted
to the cause shown for the delay of 386 days. That she adverted to the
same, is apparent from reading para 8 of the impugned order.
Then
she takes note of the submissions of the Senior Counsel appearing on
behalf of the appellant that the expression 'sufficient cause' which is
used in Section 5 of the Limitation Act, 1963 should be construed with
a justice oriented and pragmatic approach and in a liberal manner.
This is apparent from reading of para 9 of the order.
27.
In para 10, the learned Judge says that there is no quarrel
with the proposition of law envisaged in the judgments relied upon by
the learned Senior Counsel. However, the learned Appellate Judge then
refers to the judgment in the case of M/s. Roshanaily and Co. vs. Mrs.
Janki Narayandas Mudnaney and ors., reported in AIR 1991 Bombay
391 which is relied upon by the learned Advocate appearing on behalf
of the original plaintiff/respondent no.1 to the first appeal to contend
that the delay should not be condoned if the party is not diligent in
pursuing the remedy. Then the reliance was placed on the Judgment of
the Supreme Court in the case of Bhanu Kumar Jain vs. Archana
Kumar and another, reported in AIR 2005 SC 626, contending that
when an exparte decree is passed, the defendant has two options, one
to file an appeal and another to file an application for setting aside
orders in terms of Order IX, Rule 13 CPC and that the defendant can
take recourse to both the proceedings, simultaneously.
28.
In para 11, the learned Judge applies that principle and
observes and holds that the law does not prevent a party who claims
that Court has passed an ex parte judgment and decree against him,
from filing an application to set aside the said ex parte judgment and
decree and simultaneously to prefer an appeal against the said
judgment and decree. This is what is observed in paras 11 and 12 :
“ 11. Apparently, law does not prevent the party who
claims that Court has passed an ex parte judgment and
decree against him, from filing an application to set
aside the said exparte judgment and decree and
simultaneously to prefer an appeal against the said
judgment and decree. No doubt, in the application at
hand, it is stated by the applicant that he was advised
that if the order in Civil Miscellaneous Application
no.28/2003/II goes against him, he will have to file
appropriate proceedings in appropriate Court however,
in his affidavit by Advocate Shri S.M. Tendulkar who
was dealing with the matter at the time of disposal of
Civil Miscellaneous Application no.28/2003/II, it is
stated that after the judgment and decree was passed in
Regular Civil Suit No.21/85, the applicant contacted
him and in good faith he advised the applicant to file an
application to set aside the said judgment and decree
and to allow to cross examine the witnesses of the
plaintiffs in the suit and to lead evidence on behalf of
the defendants. Interestingly, no where in his affidavit
Adv. Shri S.M. Tendulkar has stated that he had advised
the applicant that in case the order in
Civil
Miscellaneous Application no. 28/2003/II goes against
him he will have to file appropriate proceedings in an
appropriate Court. This being the case, the contention
of the applicant
that he was advised as above
(irrespective of the fact that applicant has not disclosed
the name of the person who advised him so) cannot be
believed.
12.
Coming to the applicability of Section 14 of the
Limitation Act, it has been rightly pointed out by the
Ld. Advocate for the respondents that under this
Section, the party can avail of the benefit of exclusion
of time in case of only those proceedings which he was
bonafidely pursuing in the Court having no jurisdiction.
No doubt, Ld. Counsel for the applicant referring to this
Section stated that it applies even to the proceedings of
“other cause of alike nature” and that the application of
the applicant comes under the said expression “other
cause of alike nature” but it is noted that the expression
“other cause of alike nature” has to be read “ejusdem
generis” with the expression “defect of jurisdiction”
which in other words means the same is limited to the
same category or genus comprehended by the particular
words. In the case at hand, it is not the case of the
applicant that Civil Miscellaneous Application no.
28/2003/II was dismissed by the Trial Court for want
of jurisdiction or for a cause of like nature and on the
contrary, records reveal that order dated 7.8.2004 vide
which the above Civil Miscellaneous Application was
dismissed is passed on the merits of the case. This
being the case, I am in agreement with the Ld. Advocate
for the respondents that appellant cannot avail of the
benefit under Section 14 of the Limitation Act.”
29.
In para para 13, the learned Judge holds thus :
“13. Be that as it may, Ld. Advocate for respondents
inviting my attention to the observations in the
judgment in AIR 2005 Supreme Court 626 (supra)
stated that when the application under Order IX rule
25
13 CPC gets dismissed first, the doctrine of 'issue
estoppel' so also “cause of action estoppel” may arise
and hence, when an application under Order IX rule
13 CPC is dismissed, the defendant can only avail of
the remedy available there against viz. to prefer an
appeal in terms of Order 43, rule 1 CPC.
Thus,
according to him, the appeal (which is sought to be
registered after condoning the delay) is by itself not
maintainable and therefore, the question of condoning
the delay in filing such an appeal does not arise. I find
force in the above submissions of Ld. Advocate for the
respondents and this is because since it is clear from
the above reported judgment that upon dismissal of
application under Order IX rule 13 CPC, the only
remedy available to the defendant is to prefer an appeal
against the order passed on such application, it is not
open to the applicant herein to prefer appeal against
the judgment and decree in Regular Civil Suit
No.21/85/C. Reliance is also placed on the judgment
in Jokam Reddy and others vs. Kokar Malliah (AIR
1976 Andhra Pradesh 399), wherein it is held that
when the petitioners choose to file application under
Order IX Rule 13 CPC for setting aside the ex-parte
decree, the time spent in prosecuting the application
cannot be deducted under Section 5 from the time
allowed in filing the appeal. It is further observed in
this judgment that the petitioners cannot be permitted
under law to say that delay was caused on account of
their pursuing legal remedies available to them under
law and that there was no negligence on their part, as
recourse to proceeding taken by them in Order IX rule
13 CPC for setting aside the ex decree
does not
construe sufficient cause as contemplated by Section 5
of the Limitation Act.”
30.
Having perused the
entire order, I find apparent
inconsistency therein. If the appellant-original defendant No.1(c)
could avail of plural or both the remedies, viz. the one to challenge
the ex parte judgment and decree of the Trial Court on merits and also
make an application under Order IX, Rule 13 CPC to the Trial Court to
set aside the same and the law does not prevent the litigant from
adopting such a course, then, on the plain reasoning in para 11, the
objections of the respondents as noted in para 13 of the impugned order
could not have been upheld.
31.
That apart, how the appeal being not maintainable or the
objection in that behalf preventing the learned Judge from exercising
her discretionary power in condoning the delay in filing an appeal
under Section 96(2) of CPC, is something which has not been
explained at all.
If that course is impermissible in law, that should
have been adverted to. The law that is adverted to is Order IX, Rule
13 CPC. That is, according to the learned Judge permitting the
defendant who is aggrieved by an ex parte decree to only prefer an
appeal against the order passed refusing an application to set aside
the ex parte Decree and it is not open for him to prefer an appeal
against the judgment and decree, on merits. She does not explain as to
how Order IX Rule 13 would govern the exercise of statutory power
that is invoked by the aggrieved defendant. Pertinently, she has stated
in her conclusion rendered in para 11 that plural remedy can be
resorted to. If that be the case, to hold that time spent in prosecuting
the application under Order IX, Rule 13 CPC cannot be deducted
while considering the application seeking condonation of delay in
filing an appeal under Section 96(2) of CPC is contrary to law. That
apart, this time was never sought to be excluded in the instant case.
What the application of the appellants-applicants is referring to are the
events transpiring post rejection of the application under Order IX,
Rule 13 of CPC by the Trial Court on 7 th August, 2004. It is in such
circumstances that the reliance placed on the decisions of the Supreme
Court in the case of Bhanu Kumar Jain vs. Archana Kumar and
another, (supra) and in the case of Jokam Reddy and others vs.
Kokar Malliah reported in AIR 1976 AP 299 are entirely misplaced.
32.
To top it all, in para 14 of the impugned order, the learned
Judge observes that the appeal against the order dated 7 th August, 2004
refusing to set aside the ex parte decree passed by the Trial Court
being Misc. Civil Appeal No. 71/2004 is still pending. Therefore, in
such a situation, the application
to condone the delay in filing a
substantive appeal under Section 96(2) cannot be condoned and such
an application is not maintainable. Once again there is no reference,
leave alone adherence to any legal provision, while rendering such a
conclusion.
33.
A reading of Paragraph 15 of the impugned order would
show that the learned Judge was aware that the applicant was seeking
condonation of delay in filing an appeal, challenging the ex parte
decree of the Trial Court, on merits. She adverted to that fact and the
cause which is stated to be sufficient by the appellant-applicant, but
observing that when the applicant had obtained the certified copy of
the impugned Judgment and Decree
before filing Civil Misc.
Application No.28/200/II, then his statement that he obtained the
certified copy of the Judgment and Decree
in order to file a fresh
appeal does not inspire confidence. The learned Judge lost sight of
the fact that the appellant-applicant was seeking condonation of delay
in filing the instant appeal
not on the ground that he was not in
possession of the certified copy of the judgment and decree, but on the
ground of legal advice that he was tendered and given by his lawyer,
namely, to challenge the ex parte decree of the trial Court on merits,
as also by applying to the Appellate Court that the order passed on 7 th
August, 2004 on the application made under Order IX, Rule 13 of the
Code of Civil Procedure, be set aside.
That he has a remedy under
Order IX, Rule 13 of CPC and also to file an appeal under Section
96(2) of CPC is admitted by the lower Appellate Court. However, she
does not advert to the cause shown as sufficient and possibly
completely lost sight of the
contents of the application seeking
condonation of delay.
34.
In such circumstances, her findings in para 16 that the
appellant-applicant was not diligent in pursuing the remedy and that he
failed to make out a sufficient cause for condoning the delay in
preferring an appeal within the prescribed period are, without in any
manner, adverting to the cause that was shown in the contents of the
application. In this behalf, a reference can be made to Section 96(2) of
CPC which reads as under :-
“ 96. Appeal from original decree. - (1) ...
(2)
An appeal may lie from an original decree
passed ex parte.”
A bare perusal of the provision would indicate that whilst an appeal
under Section 96(1) of CPC is as a matter of right, an Appeal under
Section 96(2) may lie from an original decree passed ex parte. This is
because of the wording in Section 104 and Order XLIII of the CPC
which deals with Appeals from Orders. Thereunder an appeal is
provided as of right by Section 104 to challenge an order of the trial
Court, refusing to set aside an ex parte Decree [see order XLIII, Rule
1(d)]. If the original ex parte Decree is appealable and that is not set
aside, then, litigants have a right to challenge that order of the Trial
Court by invoking this provision. However, once that is invoked and
exhausted, then, the other provided by Section 96(2) of CPC may not
be available. However, all this has some bearing on the maintainability
of the appeals. How that can have any impact on the tenability of an
application to condone the delay in filing an Appeal under Section
96(2) of CPC has not been elaborated at all by the Lower Appellate
Court. Pendency of an Appeal under section 104, read with Order
XLIII, Rule 1(d) of CPC cannot be a bar to condone the delay in filing
the appeal under Section 96(2) of CPC. At least, no law or legal
principle carving out such a bar or prohibition is shown to me. It also
does not appear logical because delay may be condoned even if the
Appeal is not maintainable otherwise. The discretionary power to
condone the delay under Section 5 of Limitation Act, 1963 is not taken
away assuming that the proceedings are not maintainable.
35.
The learned Judge has, thus, committed a grave error of
law, resulting in the appellant-applicant being without any remedy to
challenge the decree of the Trial Court, on merits. On the date on
which the impugned order was made, the learned Judge did not decide
the Miscellaneous Civil Appeal No. 71/2004, admittedly. If that was
so, there is nothing in law which prevented the learned Judge from
dealing with the application made for condonation of delay in filing a
distinct appeal under Section 96(2) of CPC, on its own merits, and in
accordance with law. The learned Judge was aware of her powers to
condone the delay. The pendency of another appeal, has been held to
be a bar going by the reasoning in para 14 of the impugned order. But,
that reasoning has to have some basis or support in law. No legal
provision, whether under Section 96 of CPC or Order XLIII of CPC
has been brought to my notice which would support the conclusion in
para 14 of the impugned order.
36.
All the submissions that have been canvassed before me
by the learned Counsel were on the basis that the Explanation below
Order IX, Rule 13 CPC would be attracted and what would be its
extent and scope. After having come to the conclusion that for the
same have to be attracted, their applicability to appellate powers and
the procedure in relation thereto has to be established. But which has
not been demonstrated and proved, then, the reliance on the said
explanation cannot be of any assistance.
More so, in the light of the
orders passed in the writ petitions between the same parties and
holding that the subject order as impugned in this appeal partakes the
character of a decree of the appellate Court and the second appeal
being the remedy to challenge it, then, I need not advert to any of the
decisions brought to my notice.
37.
In the light of the above discussion, the substantial
questions of law framed by me above have to be answered, in so far as
questions (A) to (E) in the aforesaid terms, in the affirmative.
38.
After
having concluded thus and finding that the
impugned order is clearly unsustainable in law, this second appeal
succeeds and the order dated 26 th April, 2007 in Civil Misc.
Application No.101/2004 would be required to be quashed and set
aside. The course, thereafter, that is open for me is to send the
application under Section 5 of the Limitation Act, 1963 back to the file
of the lower Appellate Court for deciding it afresh, on merits and in
accordance with law. However, that would only prolong their agony
and would cause inconvenience to the parties. Ultimately, procedural
laws are intended to render
justice and that too cheaper and
expeditious. Therefore, I requested Mr. Diniz appearing on behalf
respondents no.1 to 4-original plaintiffs who are the real opponents as
to whether Civil Misc. Application No.101 of 2004 itself can be
allowed by condoning the delay on the basis that sufficient cause is
made out in filing the substantive appeal to challenge the Trial Court's
ex parte Decree on merits. In all fairness Mr. Diniz took instructions
from respondent No.4 who is present in the Court and makes a
statement that if this Court is of the opinion that sufficient cause has
been made out for condoning the delay in filing the substantive appeal
to challenge the Trial Court's Decree on merits, then, this Court may do
so, but with appropriate conditions and a clarification that the order
passed by the Trial Court on 7 th August, 2004, dismissing the
application under Order IX, Rule 13 of CPC., should not be permitted
to be questioned before the Appellate Court. Equally, the appellant
should not be permitted to argue that the trial Court ought not to have
proceeded exparte.
39.
Mr. Dessai, learned Senior Counsel has no objection to the
above course and the clarification as sought being given.
40.
In the result, I hold that the contents of the application, viz.
Civil Miscellaneous Application No. 101/2004 would make out the
sufficient cause for condoning the delay in filing the first appeal. The
explanation for the same is reasonable and bonafide. Ultimately, it is
on account of the legal advice
that the appellant-original defendant
No.(c) was prevented from filing the appeal in time. That differing
legal advice could be a sufficient cause, in a given case and the
Appellant's conduct otherwise bonafide. For such reasons, the delay
in
filing
the
first
appeal
is
condoned.
However,
the
appellant/defendant No.1(c) to pay costs, quantified at Rs.5000/- which
would be condition precedent and to be paid to respondents No.1 to 4
in one set, within a period of four weeks from today.
On proof of
payment of costs being produced, the lower Appellate Court to register
the appeal as First Appeal, challenging the decree of the Trial Court on
merits.
The order of the lower Appellate Court dismissing the
Miscellaneous Civil Appeal No.71/2004 is final and, therefore, that
cannot be interfered with in law. In such circumstances, the appeal that
would survive on the files of the lower Appellate Court would be an
appeal which would entitle the appellant/original defendant No.1(c) to
question and impugn the decree of the Trial Court on merits. While
arguing such appeal, it would not be open for the appellant herein to
urge that the Trial Court should not have proceeded ex parte or that its
decision to proceed ex parte
is not sound or valid in law. No such
contentions would be entertained by the lower Appellate Court. A
scrutiny of the Decree passed by the lower Appellate Court, on merits,
alone would be
undertaken and all contentions of both sides
in
relation thereto are kept open and shall not be taken to have concluded
by this or earlier Orders. This order only sets right the erroneous
course adopted by the lower Appellate Court in law and beyond that
nothing has been observed on merits.
41.
If the costs are paid, both the parties to appear before the
lower Appellate Court on 2 nd April, 2012 at 10.00 a.m.
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