Supreme Court Allows Appeal Against Ex-Parte Decree After Dismissal of Order IX Rule 13 Application: Bhivchandra Shankar More vs. Balu Gangaram More (2019)

Introduction

Date of the Judgment: May 7, 2019
Citation: (2019) INSC 4669
Judges: R. Banumathi, J. and R. Subhash Reddy, J.

Can a party who has unsuccessfully tried to set aside an ex-parte decree be allowed to appeal the same decree, and should the time taken for the first attempt be considered when deciding if the appeal is late? The Supreme Court of India recently tackled this issue, examining whether pursuing one legal remedy should prevent a party from accessing another. This case explores the balance between procedural rules and the right to a fair hearing.

Case Background

The case began when Respondents 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. They sought partition and separate possession of the suit property. The summons was received by Tanaji, the son of Defendant No. 2, on February 25, 2007. The Appellant-Defendant claimed they were in a neighboring village for work and were not informed about the summons by Tanaji. Consequently, they did not appear in court, and an ex-parte preliminary decree for partition was passed on July 4, 2008.

On October 15, 2008, the Appellant and Respondents No. 14 and 15 filed an application under Order IX Rule 13 of the Code of Civil Procedure (CPC) to set aside the ex-parte decree. This application was dismissed on August 6, 2010. The trial court noted discrepancies in the reasons given for non-appearance and deemed the service on Tanaji as effective service. An appeal against this dismissal was filed on September 3, 2010, but was withdrawn on June 11, 2013. The very next day, on June 12, 2013, the Appellant and Respondents No. 14 and 15 filed a regular appeal against the ex-parte decree, along with an application to condone a delay of four years, ten months, and eight days.

Timeline:

Course of Proceedings

The Additional District Judge, Baramati, allowed the application for condonation of delay on February 20, 2014, noting that the Appellant and Respondents No. 14 and 15 did not have an opportunity to contest the suit on merits. The District Judge observed that they had spent time pursuing the application under Order IX Rule 13 CPC and the related appeal. However, the High Court of Judicature at Bombay reversed this decision on August 20, 2014, in Writ Petition No. 3290 of 2014. The High Court held that the application under Order IX Rule 13 CPC was not a “wrong proceeding” and that the time spent on it could not be excluded when calculating the limitation period for filing an appeal against the ex-parte decree. The High Court relied on its previous judgment in Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar, stating that the Appellant could not pursue the appeal after failing in the application under Order IX Rule 13 CPC. The High Court emphasized that the two remedies should be pursued simultaneously and not consecutively.

Legal Framework

The case revolves around two key provisions of the Code of Civil Procedure (CPC): Order IX Rule 13 and Section 96(2). Order IX Rule 13 of CPC allows a defendant to apply to set aside an ex-parte decree if they can prove that the summons was not duly served or that they were prevented by sufficient cause from appearing in court. According to the judgment, “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”. Section 96(2) of the CPC provides the right to appeal an ex-parte decree. The judgment states that, “In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex-parte.” The Supreme Court noted the distinct nature of these provisions, stating that the scope of inquiry under these provisions is entirely different. The Court also referred to Section 5 of the Indian Limitation Act, 1908, which deals with condonation of delay, stating that “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?

Arguments

Appellant’s Arguments:

• The appellant argued that the suit summons was served on the son of Defendant No. 2, Tanaji, while they were away in a neighboring village for work. They contended that they were not informed about the summons and thus, could not pursue the matter.
• The appellant contended that the delay in filing the appeal was not intentional and should be condoned.
• Relying on B. Madhuri Goud v. B. Damodar Reddy, (2012) 12 SCC 693, the appellant argued that the term “sufficient cause” should be liberally construed.
• The appellant submitted that denying the condonation of delay would deprive them of their rights in the joint family property without a chance to contest the case on merits.

Respondents’ Arguments:

• The respondents argued that the time spent on the proceedings under Order IX Rule 13 CPC was irrelevant because those proceedings did not bar the filing of an appeal under Section 96(2) of the CPC.
• They contended that the application under Order IX Rule 13 CPC was dismissed on merits and had attained finality.
• The respondents submitted that the appellants could not seek condonation of delay based on pursuing the remedy under Order IX Rule 13 CPC, especially after the dismissal of the application.

The innovativeness of the appellant’s argument lies in their appeal to the court’s sense of justice, emphasizing that denying the condonation of delay would deprive them of their rights in the joint family property without a chance to contest the case on merits. This argument highlights the importance of substantive justice over procedural technicalities.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

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, so as 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?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The High Court’s reliance on Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar [1937 Vol.XL Bom. Law Reporter 957]* was distinguished. The Supreme Court clarified that the remedies under Order IX Rule 13 CPC and Section 96(2) CPC are not mutually exclusive and can be pursued consecutively.
• B. Madhuri Goud v. B. Damodar Reddy [(2012) 12 SCC 693]* was followed to reinforce the principle that “sufficient cause” should be liberally construed to advance justice.
• Bhanu Kumar Jain v. Archana Kumar and Another [(2005) 1 SCC 787]* was cited to emphasize that the right of appeal is a statutory right and cannot be curtailed unless expressly stated by law. The Court also used this case to highlight the different scopes of Order IX Rule 13 CPC and Section 96(2) CPC.
• N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123]* was used to reiterate that rules of limitation are not meant to destroy the rights of parties but to ensure that parties do not resort to dilatory tactics.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the need to ensure that substantive justice is not sacrificed on the altar of procedural technicalities. The Court emphasized the importance of providing a fair opportunity to the Appellant to contest the ex-parte decree on merits. The Court noted that the Appellant was not grossly negligent in pursuing the matter, and the delay was primarily due to pursuing the remedy under Order IX Rule 13 CPC, which the Court considered a valid reason for condoning the delay. The Court also reiterated that the right of appeal is a statutory right and cannot be curtailed unless expressly stated by law. The court also emphasized that the scope of Order IX Rule 13 CPC and Section 96(2) CPC are entirely different.

Logical Reasoning:

The Supreme Court considered alternative interpretations, such as the High Court’s view that the two remedies should be pursued simultaneously. However, the Supreme Court rejected this rigid approach, emphasizing that each case should be considered based on its unique facts and circumstances. The Court also considered the possibility that the Appellant was using dilatory tactics but found no evidence of such behavior. The final decision was reached by balancing the need to adhere to procedural rules with the need to provide a fair opportunity for the Appellant to contest the ex-parte decree on merits.

The Court’s decision was that the time spent pursuing the application under Order IX Rule 13 CPC could be considered “sufficient cause” for condoning the delay in filing the first appeal. The Court further clarified that the dismissal of an application under Order IX Rule 13 CPC does not bar the statutory right of appeal under Section 96(2) CPC. The Court emphasized that the scope of inquiry under the two provisions is entirely different. The Court also held that the remedies under Order IX Rule 13 CPC and Section 96(2) CPC are not mutually exclusive and can be pursued consecutively.

The reasons for the decision were as follows:

• The Appellant was not grossly negligent in pursuing the matter.
• The delay was primarily due to pursuing the remedy under Order IX Rule 13 CPC.
• The right of appeal is a statutory right and cannot be curtailed unless expressly stated by law.
• The scope of inquiry under Order IX Rule 13 CPC and Section 96(2) CPC is entirely different.
• The remedies under Order IX Rule 13 CPC and Section 96(2) CPC are not mutually exclusive and can be pursued consecutively.
• The term “sufficient cause” should be liberally construed to advance justice.

The judgment includes the following direct quotes:

• “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…; (ii) to file a regular appeal from the original decree to the first appellate court and challenge the ex-parte decree on merits.”
• “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.”
• “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 strait-jacket formula.”

There were no dissenting opinions in this case. The judgment was delivered by a bench of two judges, with Justice R. Banumathi authoring the opinion.

Key Takeaways

• Time spent pursuing an application under Order IX Rule 13 CPC can be considered a “sufficient cause” for condoning the delay in filing a first appeal against an ex-parte decree.
• The dismissal of an application under Order IX Rule 13 CPC does not bar the statutory right of appeal under Section 96(2) CPC.
• The remedies under Order IX Rule 13 CPC and Section 96(2) CPC are not mutually exclusive and can be pursued consecutively.
• Courts should adopt a liberal approach when considering condonation of delay, especially when there is no gross negligence or deliberate inaction.
• The decision emphasizes the importance of substantive justice over procedural technicalities.

This judgment could have a significant impact on future cases involving ex-parte decrees. It clarifies that parties are not necessarily penalized for initially pursuing an application under Order IX Rule 13 CPC before filing an appeal. This decision ensures that parties have a fair opportunity to contest decrees on merits, even if they initially pursue a different remedy. It also reinforces the importance of a liberal interpretation of “sufficient cause” to ensure that substantive justice is not compromised by procedural hurdles.

Directions

The Supreme Court set aside the High Court’s judgment and restored the appeal filed by the appellant and respondents No. 14 and 15. The Court directed the first appellate court to take the appeal on file and proceed with it in accordance with the law. The Court also clarified that it had not expressed any opinion on the merits of the case.

Specific Amendments Analysis

There is no discussion on any specific amendments in this judgment.

Development of Law

The ratio decidendi of this case is that the time spent pursuing an application under Order IX Rule 13 CPC can be considered a “sufficient cause” for condoning the delay in filing a first appeal against an ex-parte decree. Additionally, the dismissal of an application under Order IX Rule 13 CPC does not bar the statutory right of appeal under Section 96(2) CPC. This decision clarifies that the remedies under Order IX Rule 13 CPC and Section 96(2) CPC are not mutually exclusive and can be pursued consecutively. This judgment changes the position of law as previously held by the High Court of Judicature at Bombay in Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar, 1937 Vol.XL Bom. Law Reporter 957.

Conclusion

In conclusion, the Supreme Court allowed the appeal, setting aside the High Court’s judgment. The Court held that the time spent pursuing an application under Order IX Rule 13 CPC can be considered a “sufficient cause” for condoning the delay in filing a first appeal against an ex-parte decree. The Court also clarified that the dismissal of an application under Order IX Rule 13 CPC does not bar the statutory right of appeal under Section 96(2) CPC, ensuring that parties have a fair opportunity to contest decrees on merits. This judgment emphasizes the importance of substantive justice and a liberal approach to condonation of delay.