Saleem Gous Goundi vs Mahadev Basappa Channavar

B. Veerappa, J.—The petitioner who was defendant in the trial Court filed the present revision petition against the order dated 14.08.2014 made in M.A. No. 18/2014 on the file of the VII District and Sessions Judge, Belgaum at Chikodi, confirming the order dated 18.01.2014 made in Misc. No. 4/2008 on the file of the Senior Civil Judge, Chikodi, dismissing the Appeal filed by the defendant under Order IX Rule 13 read with Section 151 of Code of Civil Procedure.

The respondent-plaintiff had filed the suit in O.S. No. 124/2005 to enforce the agreement of sale dated 01.02.2001. The said suit came to be decreed on 30.07.2008. Subsequently, the defendant filed petition in Misc. No. 4/2008 under Order IX Rule 13 read with Section 151 of Code of Civil Procedure to set-aside the ex-parte decree made in O.S. No. 124/2005. After hearing both the parties, the learned Senior Civil Judge, Chikkodi, by an order dated 18.01.2014 dismissed the miscellaneous petition on the ground that the decree was not ex-parte.

Against the said order defendant filed M.A. No. 18/2014 was filed before the VIIth Addl. District and Sessions Judge, Belgaum at Chikkodi. Since there was delay of 27 days in tiling the appeal the appellant filed I.A. 1 under Section 5 of the Limitation Act to condone the delay. The learned Judge after hearing both parties, by the impugned order dated 14.8.2014 has dismissed I.A. 1 as well as the appeal filed under Order 43 Rule 1 of CPC on merits also. As against the said order the present revision petition is filed.

I have heard the learned Counsel for the parties to the lis.

Sri M.G. Naganur, learned Counsel for the petitioner mainly contended that the learned District judge has no jurisdiction to decide the case on merits when he has rejected I.A. 1 filed under Section 5 of the Limitation Act to Condone the delay of 27 days in filing the appeal. Learned counsel has also relied upon the judgment of this Court in the case of Marappa and Others Vs. Thimmegowda and Another, AIR 1981 Kar 121 : (1981) ILR (Kar) 688 : (1981) 2 KarLJ 73 , and contended that the Court below ought to have allowed the application, imposing some cost, so as to compensate the other side, but the same has not been done.

Learned counsel also relied upon the decision of this Court in the case of MARIGOUDA CHANABASAPPA MARIGOUDAR Vs. SATTEPPA VEERAPPA KOUJALAGI, SINCE DECEASED BY HIS LRs., dated 06.02.2014 made in Regular Second Appeal No. 552712009(SP), to the effect that the learned Judge has no jurisdiction to decide the case on merits, when he has rejected the application for condonation of delay. Therefore, he sought to set aside the impugned order passed by the appellate court.

Sri Srmand A. Pachchapure, learned counsel for the respondents, fairly conceded the said legal proposition and he has submitted that the matter may be remanded to the appellate court to decide the case on its merit''s without reference to the limitation, since, there is a delay of 27 days only.

The said fair submission is placed on record.

I have given my thoughtful consideration to the arguments advanced and perused the entire material on record.

It is not in dispute that the suit is filed for specific performance, to enforce the agreement and the suit came to be decreed. The defendant filed an application under Order IX Rule 13 read with Section 151 of CPC, to set aside the ex-parte decree. The trial court did not accept the reasons assigned in the Misc. Case No. 4/2008 and dismissed the same on the ground that it was not an ex-parte decree. Against the said order, defendant filed M.A. 13/2014 before the District and Sessions Judge, Belgaum.

Admittedly, there is a delay of 27 days in filing the appeal. While deciding the appeal, learned Judge either should have condoned the delay or if he is not satisfied with the reasons assigned to condone the delay, he has to dismiss the appeal, only on the ground of delay and latches; and having dismissed the application for condonation of delay, he has no Jurisdiction to decide the case on merits. That has been done in the present case.

In view of the dictum of this Court in the case of Marappa and Others Vs. Thimmegowda and Another, AIR 1981 Kar 121 : (1981) ILR (Kar) 688 : (1981) 2 KarLJ 73 , wherein this Court has specifically held as under:-

"6. As noticed earlier, the learned Civil Judge first dealt with the merits of the case and then considered I.A. No. 1and held that defendant No. 1had not made out sufficient cause for condoning he delay. As the learned Civil Judge has dealt with the appeal on merits and has dismissed the same on merits, whatever may be his view on I.A. No. 1 this appeal has necessarily to be decided on merits within the limited scope and ambit of Section 100 of the Code. But, at the same time, it is necessary to point out that the procedure adopted by the learned Civil Judge is somewhat strange and is illegal. Whenever an application for condonation of delay is made in any legal proceeding, it is imperative for the Court to decide the application in the first instance and then take up the appeal or application on merits. If the Court finds that the party had not made out sufficient cause for condoning the delay, the application made for condoning the delay has to be rejected which necessarily results in the dismissal of the appeal or application filed before Court. I am somewhat surprised that Sri S.V. Tilgul, an experienced Civil Judge who has now been promoted as a District Judge, should have committed such a simple mistake. Apart from this, the allegations made accompanying I.A. No. 1 filed by defendant No. 1 in which he had asserted that he was unwell in proof of which he had even produced a medical certificate, has not been controverted by the plaintiff by filing any counter-affidavit or objections to the said application. In these circumstances, the learned Civil Judge was not even justified in holding that defendant No. 1 had not shown sufficient cause for condoning the delay. But, as nothing turns on that finding of the learned Civil Judge, I do not propose to say anything further on the same."

The said view is also re-affirmed by this Court in a subsequent decision, in MARIGOUDA CHANABASAPPA MARIGOUDAR Vs. SATTEPPA VEERAPPA KOUJALAGI, SINCE DECEASED BY HIS LRs., dated 06.02.2014 in Regular Second Appeal No. 5527/2009(SP), which reads as under:

"2. After perusing the impugned judgment passed by the First Appellate Court, it appears that, though the appeal is dismissed holding that I.A. IV filed under Section 5 of the Limitation Act is rejected, the learned Judge has considered the aspect of maintainability of the appeal also. The Court before which an application will be filed under Section 5 of the Limitation Act, especially in regard to the condonation of delay in filing of the appeal is concerned, the Court has to show whether the cause shown for condonation of delay is acceptable or not. Considering the question of maintainability or merits will arise only after the delay is condoned and appeal is taken on file. The Court will not get jurisdiction to give its findings on the maintainability of an appeal or about the merits, unless the appeal is taken on file by condoning the delay."

In view of the settled position of law and in view of the reasons stated above, the impugned order passed by the appellate court cannot be sustainable.

In the result, the Civil Revision Petition is allowed.

The impugned order passed on 14.08.2014 made in M.A. No. 18/2014, on the file of the VII Addl. District and Sessions Judge, Belgaum, is set aside.

In view of the fair submission made by the learned counsel for the respondent on condonation of delay, the application filed by the petitioner, under Section 5 of the Limitation Act, is hereby allowed and the delay of 27 days in filing the appeal is condoned.

The matter is remanded to the learned District and Sessions judge, Belgaum, for fresh consideration on merits.

The appellate court is directed to decide the appeal independently, without being in any way influenced by any of the observations made by this Court, during the course of this order and pass judgment and decree within three months from the date of receipt of a copy of this order.

Office is directed to send the lower court records forthwith.