In a significant ruling by the Supreme Court of India, the case of More v. More witnessed a pivotal moment in legal history. The Court’s decision to restore appeal rights ensures that all parties, including the respondents No.14 and 15, have the opportunity to challenge the ex-parte decree dated 04.07.2008 on merits. This ruling sets a precedent for the fair and just resolution of legal disputes, exemplifying the core principles of justice and equity.
Facts
- Respondents-plaintiffs filed a suit for partition in Regular Civil Suit No.35 of 2007 before the Joint Civil Judge, seeking partition and separate possession of the suit property.
- Appellant and respondents No.14 and 15 filed an application under Order IX Rule 13 CPC on 15.10.2008 which was dismissed on merits on 06.08.2010.
- The suit was decreed ex-parte with a preliminary decree for partition passed on 04.07.2008.
- Appellant and respondents No.14 and 15 preferred an appeal on 03.09.2010 against the ex-parte decree.
- Appellant and respondents filed an application on 15.10.2008 under Order IX Rule 13 CPC to set aside the ex-parte decree. This application was dismissed on 06.08.2010.
- The Additional District Judge allowed the application for condonation of delay on 20.02.2014.
- The court noted that appellant and respondents provided different reasons for their non-appearance during the suit, claiming they were in a neighboring village looking for work and were not informed about the suit summons by Tanaji.
- The District Court set aside the trial court’s order and allowed the application for condonation of delay in filing the appeal against the ex-parte decree.
- The High Court allowed the writ petition by stating that the time spent on pursuing the remedy by filing an application under Order IX Rule 13 CPC cannot be excluded for calculating limitation.
- The application filed under Order IX Rule 13 CPC was amended multiple times, with the final amendment mentioning that the suit summons were served on the son of one of the applicants.
- The High Court held that since the appellant-defendants chose to pursue the remedy through Order IX Rule 13 CPC instead of appealing, they cannot later seek condonation of delay for filing an appeal.
- In response to the order condoning the delay and allowing the appeal, respondents filed a writ petition, which the High Court allowed by emphasizing the need to pursue multiple remedies simultaneously.
- The trial court deemed the service of suit summons on the son of one of the applicants as effective service on the defendants.
- The appellant and other parties initially filed a Civil Appeal, which was later withdrawn, and then filed a regular appeal challenging the ex-parte decree.
- The District Judge noted that the time spent by the appellant and other parties on the application under Order IX Rule 13 CPC was in wrong proceedings and deemed it appropriate to condone the delay in filing the appeal against the ex-parte decree.
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Issue
- When an application filed under Order IX Rule 13 CPC is dismissed on merits, whether regular appeal under Section 96(2) CPC is barred needs consideration.
- Whether the time spent in the proceedings taken to set aside the ex-parte decree can be considered as ‘sufficient cause’ under Section 5 of the Indian Limitation Act, 1908 to condone the delay in appealing against the ex-parte decree on merits.
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Arguments
- Suit summons served on the son of defendant No.2, Tanaji.
- Appellant and respondents No.14 and 15 were in a neighboring village at the time of service.
- The delay in filing the appeal was not intentional as they were unable to pursue the matter immediately.
- Supreme Court’s consistent view is that ‘sufficient cause’ should be liberally construed.
- District Court rightly condoned the delay in filing the appeal.
- The time spent in pursuing proceedings to set aside the ex-parte decree under Order IX Rule 13 CPC is irrelevant in the context of seeking condonation of delay for the appeal under Section 96(2) CPC.
- The proceedings under Order IX Rule 13 CPC do not bar the filing of an appeal under Section 96(2) CPC.
- Failure to condone the delay in filing the appeal would result in the appellants and respondents No. 14 and 15 losing their rights in the joint family property without a chance to contest on merits.
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Analysis
- The scope of Order IX Rule 13 CPC and Section 96(2) CPC are entirely different.
- The court may decline to condone the delay in filing the first appeal only if the defendant has adopted dilatory tactics.
- Under Section 96(2) CPC, the appeal lies from an original decree passed ex-parte.
- The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of it even if the application under Order IX Rule 13 CPC is dismissed.
- In Bhanu Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787, the Supreme Court held that the first appeal is maintainable despite dismissal of the application under Order IX Rule 13 CPC.
- Time is precious and wasted time would never revisit.
- The defendant who suffers an ex-parte decree has two remedies: (i) file an application under Order IX Rule 13 CPC to set aside the ex-parte decree, (ii) file a regular appeal from the original decree to challenge the ex-parte decree on merits.
- Refusal to condone the delay in pursuing the remedy under Order IX Rule 13 CPC would deprive the defendant of the statutory right of appeal.
- The law of limitation is founded on public policy.
- Rules of limitation are not meant to destroy the rights of parties but to ensure prompt seeking of remedy.
- The expression ‘sufficient cause’ in Section 5 of the Limitation Act is flexible to serve the ends of justice.
- The remedies against an ex-parte decree should be used based on the available facts of the situation.
- The law provides for simultaneous remedies against an ex-parte decree and they should not be converted into consecutive ones.
- Every provision in procedural law aims at fairness, justness, and providing full hearing opportunities to all parties involved.
- The objective of legal remedies is to repair damage from legal injury; allowing indefinite delay in seeking remedy can lead to uncertainty and anarchy.
- An appeal under Section 96 CPC is a statutory right meant to prevent dilatory tactics.
- Delays in appealing are required to be condoned in the interest of justice.
- In the case, a suit for partition was decreed ex-parte in 2008, and an application under Order IX Rule 13 CPC was dismissed in 2010.
- The appellant and others filed an appeal challenging the ex-parte decree in 2010.
- The appellant and others were not grossly negligent in pursuing the appeal, especially considering the nature of the suit.
- Section 97 CPC precludes disputing the correctness of a preliminary decree if no appeal is made from it.
Decision
- The appellant would be deprived of the opportunity to challenge the decree on merits if no appeal had been preferred against the preliminary decree in the suit for partition.
- The High Court judgment dated 20.08.2014 in WP No.3290 of 2014 is set aside and the appeal is allowed.
- The delay in filing the appeal against the judgment in Regular Civil Suit No.35 of 2007 is condoned and the appeal is restored for the appellant and respondents No.14 and 15.
- The first appellate court is directed to take the appeal titled “Shri Bhivchand Shankar More & Ors. v. Shri Balu Gangaram More & Ors.” on file and proceed with it according to law.
- The court has not expressed any opinion on the merits of the matter.
- The appellant and respondents No.14 and 15 are to be given the opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, despite the dismissal of their application under Order IX Rule 13 CPC.
- The time spent in pursuing the application under Order IX Rule 13 CPC is considered as a ‘sufficient cause’ for condoning the delay in filing the first appeal.
- The objective is to ensure that the questions decided by the court at the stage of passing the preliminary decree cannot be challenged at the final decree stage.
- The appeal that was pending for about three years and was withdrawn on 11.06.2013 is to be reinstated in the interest of justice.
Case Title: BHIVCHANDRA SHANKAR MORE Vs. BALU GANGARAM MORE
Case Number: C.A. No.-004669-004669 / 2019
