Lekshmikutty Panickathi vs Bhargavi Panickathi

S. Padmanabhan J.

Suit was dismissed for default. Application under Order 9 Rule 9 was filed by the plaintiff 54 days out of time. Therefore an application u/s 5 of the Limitation Act was also filed. Application for condonation of delay was dismissed. For that reason the application under Order 9 Rule 9 was also dismissed. Plaintiff filed C. M. Appeal against the order rejecting the application under Order 9 Rule 9. In that appeal he took grounds against rejection of the delay petition also. District Judge allowed the appeal. Second defendant seeks to revise that Judgment. There was serious challenge against the decision of the District Judge condoning the delay. But u/s 115 C.P.C. the power of the High Court is limited to see whether there has been assumption of jurisdiction when it did not exist; or refusal to exercise jurisdiction when it existed; or in the exercise of jurisdiction there was material irregularity or illegality. If none of these grounds are there and what is involved is only decision on a question of fact by appreciation of evidence, the High Court may not be justified in revision in interfering with that conclusion even if it is of the view that a different conclusion is possible. Whether or not the delay has to be condoned is a question on which the District Judge was entitled to come to a conclusion on appreciation of the facts and evidence and he did so without incurring the risk of any jurisdictional error, irregularity or illegality. I do not think that there is any scope for interference.

If so, the limited ground on which the decision of the District Judge is to be considered is on the touchstone whether he had jurisdiction to entertain and dispose of the appeal. The argument was that the order of the Munsiff that had to be challenged was the one refusing to condone the delay which is not appealable and the order dismissing the application under Order 9 Rule 9 was only consequential on the refusal to condone the delay and it will not come within the ambit of order 43 rule (1) (c) of the Code of Civil Procedure. I do not think I will be able to agree.

There is no dispute on the question that the case is one open to appeal. In such a case, an order under rule 9 of order 9 rejecting an application to set aside the dismissal of a suit is appealable under order 43 rule (1)(c). There is nothing in the sub rule indicating that appeal is provided only where application is rejected on being considered on the merits. The words used in the rule are only "rejecting an application". The order need not be one on the merits in order to be appealable under the clause. The argument was that when an application under Order 9 Rule 9 is filed out of time and it is supported by an application u/s 5 of the Limitation Act the court gets jurisdiction to entertain and decide the application under Order 9 Rule 9 only on the delay being condoned and when the delay is not condoned the application under Order 9 Rule 9 is not entertainable and it will not come into the picture at all. Therefore, the contention was that the order that has to be challenged is the one refusing to condone the delay and not the one rejecting the application under Order 9 Rule 9 which is only an automatic and inevitable consequence of the other order. But what ever be the reason the fact remains that it is an order rejecting an application under Order 9 Rule 9. That much alone is sufficient for the applicability of the provision for appeal in order 43 rule 1 (c).

The argument to the contrary seems to have been raised on the basis of the decisions in Mamuda Khateen and Others Vs. Beniyan Bibi and Others, , in Ainthu Charan Parida Vs. Sitaram Jayanarayan Firm and Another, and in Bal Kishan and Others Vs. Tulsa Bai and Another, . Those decisions only dealt with cases of appeals filed out of time being dismissed consequent on the rejection of applications u/s 5 of the Limitation Act for condonation of delay. In such cases, the decisions said that an order rejecting the memorandum of appeal following the rejection of an application u/s 5 of the Limitation Act is not a decree but only an incidental order against which an application in revision u/s 115 of the CPC may lie but no appeal under order 43 rule 1 can be preferred. The reasoning is that until the application u/s 5 of the Limitation Act is allowed the appeal cannot be filed or admitted and till then it is a non-est and the question of its rejection cannot arise. So also, an order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application for condonation of delay is said to be not a decree within the meaning of order 2 rule 2 which is appealable. This is because order 41 rule 3 A has elected a positive bar disabling the Court to pass any order in any appeal filed before it without taking care to first decide finally the question of limitation, as to whether or not the appeal is time barred. So also my attention was drawn to a Single Bench decision of this Court in 1977 KLT 5, Case No. 10, wherein it was held that the appellate court gets jurisdiction to entertain the appeal only when the delay is condoned and an appeal against the order rejecting the appeal which is consequent on the dismissal of an application u/s 5 of the Limitation Act is not maintainable without filing a revision the order dismissing the delay petition. At the same time two later Single Bench decisions of this Court held that when a petition to excuse the delay in filing an appeal or an application to set aside the exparte decree or dismissal of the suit for default is dismissed and the consequent dismissal of the appeal or application is appealable, the proper remedy is to appeal against the dismissal of the appeal or application and take a ground regarding the incorrectness of the order in the delay petition in the appeal against the decree or order itself without filing a revision against the order dismissing the delay petition. These decisions further held that since the jurisdiction u/s 115 of the CPC is limited, the correctness of the order dismissing the delay petition can not be successfully challenged in a revision as in appeal. The decisions are : Kunhiraman v. Rossy 1979 KLT 718 and John v. Mammukutty 1983 KLT 1115.

In my opinion, it is unnecessary to confuse the issue by a comparison of the dismissal of an appeal filed out of time consequent on the dismissal of a delay petition with the dismissal of an application under Order 9 Rule 9 filed out of time consequent on the dismissal of the delay petition. In the former case, the question whether the dismissal of the appeal amounts to a decree u/s 2 (2) of the C.P.C. and the applicability of order 41 rule 3 A may arise in considering whether the dismissal of the appeal itself is appealable or not or whether a revision alone will be against the dismissal of the appeal or the delay petition. That aspect does not arise here. Here we are concerned only with two orders, one dismissing the delay petition and the other the consequential order dismissing the application under Order 9 Rule 9. Both are only orders satisfying the requirements of the definition of ''order'' in Section 2(14) C. P. C. They are not interlocutory orders also. An application under Order 9 Rule 9 is an independent proceeding and the delay petition is also equally so. Those orders finally dispose of the independent proceeding under Order 9 Rule 9. It is a proceeding in a court of civil jurisdiction within the meaning of Section 141 C. P. C. The object and purpose of Section 141 is that for economy of words it was unnecessary to repeat the whole of the procedure in providing for procedure for an application or any other proceeding original or ancillary. Proceeding under Order 9 Rule 9 is an independent miscellaneous judicial case.

The rejection of such an application, by whatever means, is made appealable under order 43 rule 1 (c) without any reservation. In order to exclude rejection consequent on the dismissal of a delay petition from the purview of order 43 rule 1 (c) we will have to read into the rule something which is not there and which the legislature has never intended to include. Merely because reason for rejection Is the delay consequent on the rejection of the delay petition in the absence of sufficient reasons the order does not cease to be an order. The words "Rejecting an application " are comprehensive enough to include dismissal for default or rejection in any other situation whatever. The decision may be upon the satisfaction or want of satisfaction of the grounds mentioned in the application under Order 9 Rule 9 or it may depend upon the grounds relied on in another order like the one in the delay petition. Want of satisfaction and the consequent rejection can be either when the fact alleged is ''disproved'' and also when it is ''not proved'' as stated in Section 3 of the Evidence Act. Therefore, whatever be the reason for the dismissal or rejection, it is a rejection within the meaning of order 43 rule 1 (c). When the statute gives the aggrieved party a right of appeal and when the decision satisfies the requirements of the provision for appeal, courts are not expected to restrict that right by a narrow interpretation See Nathu Prasad Vs. Singhai Kapurchand, . Irrespective of the fact that a party could have filed a revision against the order rejecting the application u/s 5 of the Limitation Act, he is entitled to file an appeal against the order dismissing the application under Order 9 Rule 9 for whatever reason. If a revision is filed against the order rejecting the delay petition without challenging the order dismissing the application under Order 9 Rule 9, it could be contended that the revision is incompetent without challenging the ultimate order in the independent proceeding. Since the grounds of rejection of the delay petition and the application under Order 9 Rule 9 are one and the same, those grounds could be challenged in the appeal against the order rejecting the application under Order 9 Rule 9 without even separately challenging the order dismissing the delay petition by a separate revision. It is not necessary in the interest of justice to insist upon two separate and independent proceedings to challenge the same matter. It will amount to harassment also. When the language of the statute is clear, and the meaning plain, effect must be given to it. The courts cannot read a law as if its language, is different from what it actually is Otherwise it will amount to amending the law which is impermissible for the court. The intention of the legislature has to be given effect to. When two remedies are available the party must have the right to opt the remedy which is best suited to him. In an appeal the grounds could be successfully challenged because scope of interference is wider than in a revision. There is absolutely nothing in the provision to restrict that right. The argument that dismissal of the application under Order 9 Rule 9 consequent on the dismissal of the delay petition is not an order coming within order 43 rule 1 (c) is not acceptable. The analogy of decree is not available in such a situation in order to consider whether there is right of appeal or not. The decision of the District Judge with jurisdiction in the exercise of which there was no illegality or material irregularity. The discretion was properly and judicially exercised and it is conducive to justice also. The C.R.P. is without any merit and it is here by dismissed, however, without any order as to costs.