Marigouda Chanabasappa Marigoudar vs Sattyappa and Others

B.V. Nagarathna, J.—1. Though the appeal is listed for admission, with the consent of learned counsel appearing on both sides, the matter is heard finally.

This second appeal is preferred by the defendant in O.S. No. 1/99, assailing the order passed on I.A. No. 4, filed under Order XLI Rule 3-A of the Code of Civil Procedure, 1908 (CPC) r/w Section 5 of the Limitation Act, 1963, dated 25/04/2015 by the learned Prl. District Judge, Belagavi, in R.A. No. 18/2008.

The relevant facts of the case are that the appellant herein was the defendant in O.S. No. 1/1999, which is a suit filed by the original plaintiff since deceased and now represented by his Legal Representatives, seeking the relief of specific performance of contract passed on agreement of sale dated 06/01/1996. In that suit, the defendant had appeared through counsel and had filed his written statement. Issues were framed in the said suit. The plaintiff had examined himself as P.W.1 and his younger brother as P.W.2. Four documents were marked on behalf of the plaintiff as Exs.P.1 to P.4. But the defendant did not let in his evidence. Thereafter, the matter was taken up for arguments by the trial Court and by judgment and decree dated 10/04/2001, the suit was decreed and relief of specific performance of contract was granted against the defendant.

Being aggrieved by the said judgment and decree, the defendant preferred Miscellaneous No. 9/2001 before the trial Court on 28/05/2001. That proceeding was unsuccessful as the miscellaneous case was dismissed on 15/09/2003. The said miscellaneous proceeding was filed under Order IX Rule 13 of CPC. Being aggrieved by the order dated 15/09/2003, defendant filed MFA.6910/2003 before this Court on 01/12/2003. The said appeal was dismissed on 12/10/2006. Against which, R.P. No. 502/2006 was filed and the same was also dismissed on 28/08/2007. Thereafter, the defendant preferred RFA. No. 2181/2007 before this Court on 01/10/2007. In view of the change in the pecuniary jurisdiction of this Court, the appeal was sent to the first appellate Court on 30/10/2007 and it was numbered as R.A. No. 18/2008. On 21/07/2009, the said regular appeal was dismissed both on the ground of limitation as well as on maintainability. Against which, defendant preferred RSA. No. 5527/2009 before this Court. The second appeal was allowed on 06/02/2014. The order of the first appellate Court in RA. No. 18/2008, dated 21/07/2009 was set aside and the matter was remanded to the first appellate Court to consider the question of delay in preferring the appeal at the first instance and only thereafter, to consider the question of maintainability and also on merits.

In terms of the judgment of this Court in RSA.5527/2009, passed on 06/02/2014, the matter was reheard by the learned District Judge on the application filed for condonation of delay. By order dated 25/04/2015, the application has been dismissed. It is against the said order that the present second appeal has been preferred.

I have heard learned counsel for the appellant and learned counsel for respondents and perused the material on record.

It is contended on behalf of the appellant that the learned District Judge was not right in dismissing the application filed by the appellant herein and thereby, not condoning the delay in preferring the regular appeal. As a result, regular appeal has also stood dismissed. Elaborating the said contention, learned counsel for the appellant submitted that the reason for the delay in preferring the appeal was on account of the appellant seeking the remedy for setting aside the ex-parte decree under Order IX Rule 13 of CPC, which is a remedy, which was available to the appellant. It was not necessary for the appellant to have preferred regular appeal under Section 96 of CPC along with the application filed under Order IX Rule 13 of CPC. Law provides two remedies to such a defendant one, to get an ex-parte decree set aside under Order IX Rule 13 of CPC and the other, under Section 96 of CPC. It is not mandatory that both the remedies ought to have been availed of by the defendant simultaneously. It is no doubt true that the appellant was unsuccessful in the miscellaneous petition filed under Order IX Rule 13 of CPC. The appellant carried forward the proceedings by assailing the order in the said miscellaneous proceedings before this Court and thereafter, filed a review petition before this Court and being unsuccessful, he resorted to remedy of filing an appeal under Section 96 of CPC. There is no bar in law for preferring an appeal after being unsuccessful in a proceeding under Order IX Rule 13 of CPC. The time taken in prosecuting a proceeding under Order IX Rule 13 of CPC bona fide by the defendant - appellant cannot be an insufficient reason in law not amenable for condonation of delay. On the contrary, he contended that there was sufficient cause made out by the defendant - appellant before the first appellate Court and the same ought to have been appreciated and delay ought to have been condoned.

He further contended that by filing a regular appeal, the defendant was not seeking to undo the order passed in the miscellaneous proceeding, which has been affirmed by this Court. The object of filing the regular appeal is to assail the judgment and decree of the trial Court on merits and not challenge the same on the ground that it is an ex-parte decree. He therefore contended that the learned District Judge ought to have condoned the delay particularly, when he has observed in Paragraph 33 of his order that the appellant ought to have filed the appeal under Section 96 of CPC, immediately following the dismissal of MFA. No. 6910/2003 dated 12/03/2006. He submitted that merely because a review petition was filed against the judgment dated 12/03/2006 by this Court, it cannot be held that there was no sufficient cause to condone the delay. He contended that substantial questions of law would arise in this appeal. Therefore, the appeal may be admitted for a detailed hearing.

Per contra, learned counsel for respondent, supporting the order of the first appellate Court submitted that the intention of the appellant herein is only to drag the respondent from Court to Court. The appellant has been filing proceeding after proceeding before the District Judge and this Court and being unsuccessful in every proceeding, ultimately, preferred the appeal under Section 96 of CPC. He contended that law provides two remedies to a defendant who has suffered an ex-parte decree. He can avail of remedy under Order IX Rule 13 of CPC and also a remedy under Section 96 of CPC. Both remedies could be availed simultaneously. But the appellant did not do so in the instant case. After being unsuccessful with the proceeding under Order IX Rule 13 of CPC, the appellant has preferred the appeal under Section 96 of CPC. The delay caused in filing the appeal is intentional and therefore, the first appellate Court was right in dismissing the application filed for condonation of delay. That no substantial questions of law would arise in this appeal. He therefore, sought for dismissal of the appeal. He also brought to my notice certain decisions in support of his submission, which shall be adverted to later.

Having heard learned counsel for parties and on perusal of the material on record, in my view, the appeal would have to be admitted to hear on the following substantial question of law:-

Whether the first appellate Court was right in dismissing the application filed under Section 5 of the Limitation Act by holding that there was no sufficient cause to condone the delay in filing the regular appeal?

The appeal is admitted to hear the aforesaid substantial question of law.

A detailed narration of facts is already made. Succinctly stated, the appellant herein was a defendant in O.S. No. 1/99. The judgment and decree of the trial Court dated 10/04/2001 was an ex-parte decree inasmuch as the defendant did not participate in the proceedings after filing the written statement. He did not cross-examine the plaintiff or plaintiff''s witnesses and did not let in any evidence. He sought relief by availing remedy under Order IX Rule 13 of CPC. It was also permissible for him to file a regular appeal against the said judgment and decree dated 10/04/2001. In fact, law permits both the remedies to be availed simultaneously. But the explanation to Order IX Rule 13 of CPC categorically states that if the appeal under Section 96 of CPC is dismissed, not in limine but on merits, then in that case, the proceeding under Order IX Rule 13 of CPC also availed by such a defendant would not survive for further consideration. Also, when defendant files a petition to set aside an ex-parte decree, which is dismissed and no appeal is filed against that order, the unsuccessful defendant in regular appeal, filed against the same ex-parte decree, cannot be allowed to contend that it was an ex-parte decree vide M/s. Mangilal Rungta vs. Manganese Ore (India) Ltd. Nagpur [, AIR 1987 Bombay 87].

The Hon''ble Supreme Court in case of Bhanu Kumar Jain vs. Archana Kumar [, (2005) 1 SCC 787], which has been cited by learned counsel for respondent has observed as under in Paragraphs 26 and 28:-

"26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true."

X X X

"28. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions."

On dismissal of an application under Order IX Rule 13 of CPC, appeal can be filed. However, in appeal, contention as regards correctness of the order posting the suit for ex-parte hearing by the trial Court and/or existence of a sufficient cause for non-appearance of the defendant before it, would not be allowed to be raised. He can urge that the materials brought on record were not sufficient for passing the decree or the suit otherwise was not maintainable. Lack of jurisdiction can also be challenged in appeal. The remedies are concurrent, a party can apply under Order IX Rule 13 of CPC and at the same time, appeal under an ex-parte decree or apply for review. But when an appeal is filed after exhausting remedy under Order IX Rule 13 of CPC in the appeal filed against ex-parte decree, the submission could only be on merits. Thus, when an application under Order IX Rule 13 of CPC is rejected, it is not open to the defendant to have the question that he ought not to have been set ex-parte be agitated in the appeal from the decree itself as such a right is not given by Section 105 of CPC. But where a regular appeal is filed against an ex-parte decree and the remedy under Order IX Rule 13 is not availed, then defendant can agitate as regards being placed ex-parte, in the regular appeal. Once an appeal against ex-parte decree is dismissed, a subsequent application to set aside the ex-parte decree is not maintainable under Order IX Rule 13 of CPC.

Therefore, the contention of the learned counsel for respondent that delay could not be condoned in the instant case as the appellant herein did not avail of the remedy of filing a regular appeal simultaneously along with the filing of a proceeding under Order IX Rule 13 of CPC and therefore, the judgment of the first appellate Court is right, cannot be accepted.

The Hon''ble Supreme Court has categorically held that on the ground of public policy, the right of appeal conferred upon a statute, which is a creature of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions. Therefore, learned counsel for respondent is not right in submitting that the appellant herein had to compulsorily avail of the appellate remedy along with filing of the proceeding under Order IX Rule 13 of CPC and that having failed in the latter proceeding, could not be afforded an opportunity to file an appeal and having done so, the delay in filing the appeal could not be condoned.

In view of the categorical dictum of the Hon''ble Supreme Court, it is noted that explanation to Order IX Rule 13 of CPC is also relevant in this context. The same has been considered by the Hon''ble Supreme Court in the case of P. Kiran Kumar vs. A.S. Khadar [, AIR 2002 SC 2286], wherein at Paragraph 42, it has been held as under:-

"12. Explanation was added to Order IX Rule 13 with effect from February 1, 1977 by the Code of Civil Procedure (Amendment Act, 1976). Prior to its enactment a defendant burdened by an ex parte decree could apply under Order IX Rule 13 for setting aside the ex parte decree. He could also file an appeal under Section 96 against the ex parte decree. The mere fact of filing the appeal did not take away the jurisdiction to entertain and dispose of an application for setting aside an ex parte decree. Only in the cases in which the trial court decree merged with the order of the appellant court by reversal, confirmation or varying it, the trial court was precluded from setting aside the ex parte decree. Where the trial court decree did not merge with the appellate court order the trial court was at liberty to proceed with the application for setting aside the ex-parte decree. Such instances arose when the appeal was dismissed in default or where it was dismissed as having abated by reasons of omission by the appellant to implead the legal representatives of a deceased respondent or where it was dismissed as barred by limitation. Explanation was added to discourage the two pronged attacks on the decree i.e. by preferring an application to the trial court under Order IX Rule 13 for setting aside the decree and by filing an appeal to the superior court against it. The legislative attempt incorporating the Explanation to Order IX Rule 13 is to confine the defendant, to either one of the remedies made available to him and not both. Dismissal of the appeal on any ground, apart from its withdrawal constituted a bar on the jurisdiction of the trial court to set aside the ex-parte decree. With the introduction of the explanation, no application to set aside the ex-parte decree would be maintainable where the defendant filed an appeal and the appeal was disposed of on any ground, other than the ground that the appeal have been withdrawn by the appellant."

In view of the observations of the Hon''ble Supreme Court referred to above, I do not think that the following observations of the High Court of Gujarat in [, AIR 1995 Guj. 197], are right. The said observations relied upon by the learned counsel for the respondent at Paragraphs 10, 11 and 12 reads as under:-

"10. To deal with this last mentioned contention first, the same is only required to be stated in order to be rejected. It is quite obvious that the defendant sought to have an ex parte decree set aside, by preferring an application specifically contemplated and specifically permissible under Order 9, Rule 13. This application was, therefore, a statutory remedy which was available to the defendant. In pursuing this remedy it cannot possibly be suggested that the other remedy available to the party (an appeal under Section 96 of CPC) was suspended, or that the same could be exercised at some later point of time in case the proceeding under Order 9, Rule 13 failed. There is absolutely no warrant for such a proposition.

I may also note here at this stage that the explanation to Order 9, Rule 13, specifically contemplates that after the ex parte decree which is sought to be set aside by making an application under Order 9, Rule 13, has already been challenged by way of an appeal, the application contemplated by Rule 13 would be barred. This specific provision made by the legislature clearly indicates that the remedy available to a party under Order 9, Rule 13 and the remedy available under Section 96 of CPC are certainly two different and distinct remedies, but are not intended to confer any right as to the exercise thereof in succession. They are in the nature of independent, but alternative remedies. If an appeal under Section 96 of the CPC has already been filed, the specific provision by way of an explanation of Rule 13 would bar an application under the said rule. To my mind it is equally clear that if an application under Order 9, Rule 13 is pursued, and the same ultimately fails, an appeal under Section 96 of CPC would also be barred. I, however, do not record this by way of laying down a proposition of law, inasmuch as the said question does not arise in the context of the facts of the present case. The maintainability or otherwise of the appeal under Section 96 of the CPC would be a relevant question, only after the delay is condoned; until then, such an appeal does not exist in the eye of law.

What is material is that the petitioner pleads that the delay in filing the appeal occurred merely because he was pursuing the statutory remedy in which he ultimately failed, the same would constitute sufficient ground for condonation of delay. As stated hereinabove, this contention must fail."

The aforesaid observations are contrary to the observations of the Hon''ble Supreme Court referred to above.

In the instant case, the delay in preferring the appeal has occurred on account of the appellant pursuing a remedy, which is granted in law namely, under Order IX Rule 13 of CPC. Being unsuccessful in that remedy, the appellant herein preferred regular appeal. The preferring of regular appeal after being unsuccessful in the proceedings initiated under Order IX Rule 13 of CPC cannot be led to the conclusion that the delay has been caused intentionally. Law itself provides two remedies or options. They are distinct and independent remedies. Nowhere has it been stated that those remedies are to be taken simultaneously. It is left to the choice/option of the litigant to chose the remedy under Order IX Rule 13 of CPC or one under Section 96 of CPC when he suffers an ex-parte decree at the hands of the trial Court. He may avail of both remedies simultaneously. But not doing so, would not be fatal to the case of the defendant. In the instant case, the defendant being unsuccessful in availing the remedy under Order IX Rule 13 of CPC, has preferred the regular appeal. The reason for delay in filing the regular appeal was on account of his prosecuting the remedy under Order IX Rule 13 of CPC. The first appellate Court has noted that "the appellant atleast ought to have filed the appeal under Section 96 of Code of Civil Procedure, 1908 immediately following the dismissal of MFA. No. 6910/2003 on 12/03/2006." The implication being that the time spent in prosecuting the remedy under Order IX Rule 13 of CPC till 12/03/2006 is condoned. The appellant cannot be penalized for availing of the remedy under Order XLVII Rule 1 of CPC by filing Review Petition No. 502/2006 against the judgment dated 12/03/2006, passed by this Court.

The first appellate Court considered that gross delay occurred on account of the filing of the review petition and therefore, dismissed the application under Section 5 of the Limitation Act, 1963. The first appellate Court ought to have considered the fact that the appellant herein was availing his remedies which are available in law and that he was not prosecuting a proceeding wrongfully. This is not a case where Section 14 of Limitation Act, 1963 applies. In fact, that Section makes a dent on Section 5 of the Limitation Act. Where a person avails of a remedy, which he was not entitled to avail or was prosecuting in a wrong forum, in that case, Section 14 applies and not the present case. In that view of the matter, the substantial question of law raised in this appeal would have to be answered in favour of the appellant herein, by holding that the delay in filing the appeal had to be condoned as there was sufficient cause to do so. Consequently, the order of the first appellate Court dated 25/02/2015 is set aside. The delay in filing the appeal is condoned.

The appeal is disposed of in the aforesaid terms. As the suit is of the year 1999, the appellant and the respondent, who are represented by the respective counsel, are directed to appear before the first appellate Court on 14-03-2016, without expecting a separate notice from that Court.

The first appellate Court is requested to dispose of the appeal in accordance with law and in an expeditious manner.

Parties to bear their respective costs.