REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4669      OF 2019 (Arising out of SLP(CIVIL) NO. 28938 OF 2014)

BHIVCHANDRA SHANKAR MORE                          ....Appellant

VERSUS

BALU GANGARAM MORE & ORS.                    ...Respondents

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 20.08.2014

passed  by  the  High  Court  of  Judicature  at  Bombay  in  Writ

Petition No.3290 of 2014 in and by which the High Court refused

to condone the delay in filing the first appeal challenging the ex-

parte decree passed in Regular Civil Suit No.35 of 2007 dated

04.07.2008.

3. Brief facts which led to filing of this appeal are as under:-  

Respondents-plaintiffs 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 seeking partition and separate possession

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of the suit property. In the said suit, son of defendant No.2 viz.

Tanaji  received the suit summons on 25.02.2007. According to

appellant-defendant,  they  were  in  the  neighbouring  village  in

search of work and Tanaji did not inform them about the service

of suit summons and therefore, they could not appear in the suit

for partition. The said suit was decreed ex-parte and preliminary

decree for partition was passed on 04.07.2008. On 15.10.2008,

appellant  and respondents  No.  14  and 15 filed  an  application

under  Order  IX  Rule  13  CPC  for  setting  aside  the  ex-parte

decree. After considering the contentions of both the parties, the

said application came to be dismissed by the trial court by order

dated 06.08.2010.  The trial  court  noted that  the appellant  and

respondents No.14 and 15 are coming up with different reasons

for their non-appearance when the suit  was called for hearing.

The trial court pointed out that though number of amendments

were made in the application filed under Order IX Rule 13 CPC,

only in the last amendment, the defendants have stated that suit

summons was served on the son of applicant No.2 viz. Tanaji.

The trial court observed that said Tanaji was an adult and the suit

summons served on him was deemed to be an effective service

of summons on the defendants.  

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4. Being aggrieved by the dismissal of application filed under

Order  IX  Rule  13  CPC,  on  03.09.2010,  the  appellant  and

respondents No.14 and 15 filed Civil Appeal No.108 of 2010 and

the same was withdrawn on 11.06.2013. On the very next day i.e.

on 12.06.2013, the appellant and respondents No.14 and 15 filed

regular appeal challenging the ex-parte decree passed in Regular

Civil Suit No.35 of 2007. Along with the said appeal, they also

filed  Civil  Misc.  Application  No.56  of  2013  for  condonation  of

delay  of  four  years,  ten  months  and  eight  days.  The  said

application  for  condonation  of  delay  was  allowed  by  the

Additional District Judge, Baramati  vide order dated 20.02.2014.

The court noted that the appellant and respondents No.14 and 15

did  not  get  an  opportunity  to  contest  the  suit  on  merits.  The

learned  District  Judge  observed  that  the  appellant  and

respondents  No.14  and  15  have  spent  their  time  in  wrong

proceedings viz.  application filed under Order IX Rule 13 CPC

and the appeal thereon and therefore, it will be just and proper to

condone the delay in preferring the appeal challenging the  ex-

parte decree  passed  in  the  partition  suit.  The  District  Court

accordingly set aside the order of the trial court and allowed the

application for condonation of delay in filing the appeal against

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the ex-parte decree.

5. Being  aggrieved  by  the  order  condoning  the  delay  and

entertaining the appeal, respondents No.1 to 8 filed WP No.3290

of 2014 before the High Court.  By the impugned judgment dated

20.08.2014, the High Court allowed the writ petition by holding

that the application filed under Order IX Rule 13 CPC cannot be

said  to  be  wrong  proceedings  and  hence,  the  time  spent  in

pursuing the remedy by filing application under Order IX Rule 13

CPC cannot be excluded for calculating the limitation. The High

Court  relied  upon  its  own  judgment  in  Jotiba  Limbaji

Kanashenavar  v.  Ramappa Jotiba  Kanashenavar 1937  Vol.XL

Bom. Law Reporter 957 and held that having elected to pursue

the remedy by filing an application under Order IX Rule 13 CPC

and having not pursued the remedy of appeal which was open to

him at that time and having failed in the application filed under

Order IX Rule 13 CPC, the appellant-defendants cannot fall back

upon the remedy of filing appeal and seek condonation of delay.

The High court pointed out that two remedies have to be pursued

simultaneously  and  cannot  be  converted  into  consecutive

remedies and on those findings, allowed the writ petition which is

the subject matter challenge.  

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6. Mr.  Sushil  Karanjkar,  learned  counsel  appearing  for  the

appellant submitted that the suit summons was served upon the

son of defendant No.2 by name Tanaji and at the relevant point of

time, the appellant and respondents No.14 and 15 were in the

neighbouring village for some work and they could not pursue the

matter and hence, the delay in filing the appeal cannot be said to

be  intentional.  Placing  reliance  upon  B.  Madhuri  Goud  v.  B.

Damodar  Reddy (2012)  12  SCC  693,  it  was  submitted  that

consistent view taken by the Supreme Court is that the words

“sufficient  cause” should be liberally construed and the District

Court  rightly  condoned  the  delay  in  filing  the  appeal.  It  was

submitted that unless the delay in filing the appeal is condoned,

the  appellants  and  respondents  No.14  and  15  will  lose  their

valuable  rights  in  the  suit  property  which  is  the  joint  family

property, without having an opportunity to contest the same on

merits.  

7. Mr.  Vinay  Navare,  learned  senior  counsel  appearing  on

behalf  of  the  respondents  submitted  that  the  time  spent  in

prosecuting the proceedings for setting aside the ex-parte decree

under  Order  IX  Rule  13  CPC is  wholly  irrelevant  since  those

proceedings under Order IX Rule 13 CPC never operated as a

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bar for filing an appeal under Section 96(2) CPC. It was further

submitted that the application filed under Order IX Rule 13 CPC

was dismissed on merits and the said order has attained finality

and  having  filed  the  appeal  challenging  the  said  order,  the

appellants cannot seek for condonation of delay on the ground

that they were pursuing the other remedy under Order IX Rule 13

CPC.

8. We have carefully considered the submissions and perused

the impugned judgment and other materials  placed on record.

The following points arise for consideration:-

(i) Whether the time spent in the proceedings taken to

set  aside the  ex-parte decree constitute  “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?

(ii) When an application filed under  Order IX Rule 13

CPC has been dismissed on merits, whether regular

appeal under Section 96(2) CPC is barred?  

9. The facts are not in dispute. The suit for partition was filed

by respondents No.1 to 13 in the year 2007. It was decreed ex-

parte on 04.07.2008. The appellant and respondents No.14 and

15 filed application under Order IX Rule 13 CPC on 15.10.2008

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and the said application was dismissed on merits by the order

dated 06.08.2010. Challenging the said order, the appellant and

respondents No.14 and 15 preferred an appeal on 03.09.2010.

About  three  years  after  its  filing  i.e.  on  11.06.2013,  the  said

appeal was withdrawn and on the next day i.e. on 12.06.2013,

the  appellant  and  respondents  No.14  and  15  filed  appeal

challenging  the  decree  passed  in  Regular  Civil  Suit  No.35  of

2007  along  with  an  application  to  condone  the  delay  of  four

years, ten months and eight days.  

10. 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 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; (ii) to file a regular appeal

from the original decree to the first appellate court and challenge

the ex-parte decree on merits.   

11. It is to be pointed out that the scope of Order IX Rule 13

CPC  and  Section  96(2)  CPC  are  entirely  different.  In  an

application filed under Order IX Rule 13 CPC, the Court has to

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see whether the summons were duly served or not or whether

the  defendant  was  prevented  by  any  “sufficient  cause”  from

appearing when the suit was called for hearing. If  the Court is

satisfied that the defendant was not duly served or that he was

prevented for “sufficient cause”, the court may set aside the ex-

parte decree and restore the suit to its original position. In terms

of Section 96(2) CPC, the appeal  lies from an original  decree

passed ex-parte. In the regular appeal filed under Section 96(2)

CPC,  the  appellate  court  has  wide  jurisdiction  to  go  into  the

merits of the decree. The scope of enquiry under two provisions

is entirely different. Merely because the defendant pursued the

remedy under Order IX Rule 13 CPC, it  does not  prohibit  the

defendant from filing the appeal if his application under Order IX

Rule 13 CPC is dismissed.  

12. 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.  In  Bhanu

Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787,

the  Supreme  Court  considered  the  question  whether  the  first

appeal  was  maintainable  despite  the  fact  that  an  application

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under Order IX Rule 13 CPC was filed and dismissed.  Observing

that the right of appeal is a statutory right and that the litigant

cannot be deprived of such right, in paras (36) and (38), it was

held as under:-

“36.  ……………  A right  to  question  the  correctness  of  the

decree in a first appeal is a statutory right. Such a right shall not

be curtailed nor shall  any embargo be fixed thereupon unless

the statute expressly or by necessary implication says so. [See

(2004) 5 SCC 385, Deepal Girishbhai Soni and Others v. United

India Insurance Co. Ltd.,  Boaroda and  Chandravathi P.K. and

Others v. C.K. Saji and Others (2004) 3 SCC 734].”

……………..

“38. The dichotomy, in our opinion, can be resolved by holding

that whereas the defendant would not be permitted to raise a

contention as regards the correctness or otherwise of the order

posting the suit  for  ex parte  hearing by  the trial  court  and/or

existence  of  a  sufficient  case  for  non-appearance  of  the

defendant before it, it would be open to him to argue in the first

appeal  filed  by  him under  Section  96(2)  of  the  Code on  the

merits  of  the  suit  so  as  to  enable  him  to  contend  that  the

materials brought on record by the plaintiffs were not sufficient

for passing a decree in his favour or the suit was otherwise not

maintainable.  Lack  of  jurisdiction  of  the  court  can  also  be  a

possible plea in such an appeal. We, however, agree with Mr

Chaudhari that the “Explanation” appended to Order 9 Rule 13

of the Code shall receive a strict construction as was held by this

Court in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhary (1982) 2

SCC 596,  P. Kiran Kumar v. A.S. Khadar and Others  (2002) 5

SCC 161  and  Shyam Sundar Sarma v.  Pannalal  Jaiswal  and

Others (2005) 1 SCC 436.”

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13. After  referring  to  its  own judgment  in  Jotiba  Limbaji,  the

High Court held that after the appeal from the order of the lower

court  refusing to  set  aside the  ex-parte decree,  the defendant

may think of applying to the High Court in revision and in that

process, considerable time might be lost. After referring to other

judgments, in the impugned judgment, the High Court held as un-

der:-

“15……….. An unscrupulous defendant may file the application

under Order IX Rule 13 CPC and carry the order to the highest

forum irrespective of the merit in it and thereafter still file appeal

against the decree. Considerable time would be lost for the plain-

tiff in that case. Every provision under the law of procedure is

aimed at justness, fairness and full opportunity of hearing to the

parties to the court proceedings. It caters to every conceivable

situation. But at the same time, the law expects a litigant to be

straight,  honest  and  fair.  The  two  remedies  provided  against

ex-parte decree are in respect of two different situations and are

expected to be resorted to only if the facts of the situation are

available to a litigant. The remedies provided as simultaneous

and cannot be converted into consecutive remedies.”

14. The above observation of the High Court that “the remedies

provided as simultaneous and cannot be converted into consecu-

tive remedies” cannot be applied in a rigid manner and as a strait-

jacket formula. It  has to be considered depending on the facts

and circumstances of each case and whether the defendant in

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pursuing the remedy consecutively has adopted dilatory tactics.

Only in cases where the defendant has adopted dilatory tactics or

where there is lack of bonafide in pursuing the two remedies con-

secutively, the court may decline to condone the delay in filing the

first appeal. If the court refuses to condone the delay in the time

spent in pursuing the remedy under Order IX Rule 13 CPC, the

defendant would be deprived of the statutory right of appeal in

challenging the decree on merits.  

15. It is a fairly well settled law that “sufficient cause” should be

given liberal  construction so as to advance sustainable  justice

when there is no inaction, no negligence nor want of bonafide

could  be  imputable  to  the  appellant.  After  referring  to  various

judgments, in B. Madhuri, this Court held as under:-

“6. The expression “sufficient cause” used in Section 5 of the

Limitation  Act,  1963  and  other  statutes  is  elastic  enough  to

enable the courts to apply the law in a meaningful manner which

serves the ends of justice. No hard-and-fast rule has been or can

be laid  down  for  deciding  the  applications  for  condonation  of

delay but over the years courts have repeatedly observed that a

liberal  approach needs to be adopted in such matters so that

substantive rights  of  the parties  are not  defeated only  on the

ground of delay.”

16. Observing  that  the  rules  of  limitation  are  not  meant  to

destroy  the  rights  of  the  parties,  in  N.  Balakrishnan  v.  M. 11

Krishnamurthy (1998) 7 SCC 123, this Court held as under:-

“11. Rules of limitation are not meant to destroy the rights of

parties.  They  are  meant  to  see  that  parties  do  not  resort  to

dilatory tactics,  but seek their  remedy promptly.  The object  of

providing  a  legal  remedy  is  to  repair  the damage caused by

reason of legal injury. The law of limitation fixes a lifespan for

such legal remedy for the redress of the legal injury so suffered.

Time is precious and wasted time would never revisit. During the

efflux  of  time,  newer  causes  would  sprout  up  necessitating

newer persons to seek legal remedy by approaching the courts.

So a lifespan must be fixed for each remedy. Unending period

for launching the remedy may lead to unending uncertainty and

consequential anarchy. The law of limitation is thus founded on

public policy. It is enshrined in the maxim interest reipublicae up

sit finis litium (it is for the general welfare that a period be put to

litigation). Rules of limitation are not meant to destroy the rights

of the parties. They are meant to see that parties do not resort to

dilatory tactics but seek their remedy promptly. The idea is that

every legal remedy must be kept alive for a legislatively fixed

period of time.”

As pointed  out  earlier,  an  appeal  under  Section  96  CPC is  a

statutory  right.  Generally,  delays  in  preferring  appeals  are

required to be condoned, in the interest of justice, where there is

no gross negligence or deliberate inaction or lack of bonafide is

imputable to the party seeking condonation of delay.  

17. In the case in hand, respondents No.1 to 13 filed a suit for

partition  in  the  year  2007,  which  was  decreed  ex-parte on

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04.07.2008.  Appellant  and  respondents  No.14  and  15  filed

application under Order IX Rule 13 CPC and the same came to

be dismissed on 06.08.2010.  Being  aggrieved by dismissal  of

application  under  Order  IX  Rule  13  CPC,  the  appellant  and

respondents No.14 and 15 preferred an appeal under Order XLIII

Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was

pending for about three years and the same was withdrawn on

11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the

appellant  and  respondents  No.14  and  15  filed  an  appeal

challenging the ex-parte decree and judgment dated 04.07.2008

passed in Regular Civil Suit No.35 of 2007. It cannot be said that

the  appellant  and  respondents  No.14  and  15  were  grossly

negligent in pursuing the matter more so, when the decree was

passed in the suit for partition.  

18. It is pertinent to note that as per Section 97 CPC where any

party aggrieved by a preliminary decree does not appeal  from

such decree, he shall be precluded from disputing its correctness

in any appeal which may be preferred from the final decree. The

object is that the questions decided by the court at the stage of

passing preliminary decree cannot be challenged at the time of

final  decree.  If  no  appeal  had  been  preferred  against  the

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preliminary  decree,  the  suit  filed  by  the  respondents-plaintiffs

being a suit for partition, the appellant would be deprived of the

opportunity in challenging the decree on merits.  In the interest of

justice, the appellant and respondents No.14 and 15 are to be

given  an  opportunity  to  challenge  the  ex-parte decree  dated

04.07.2008  on  merits,  notwithstanding  the  dismissal  of  their

application filed under Order IX Rule 13 CPC.  

19. In the facts and circumstances of the present case, the time

spent in pursuing the application under Order IX Rule 13 CPC is

to be taken as “sufficient cause” for condoning the delay in filing

the  first  appeal.   The  impugned  judgment  of  the  High  Court

cannot be sustained and is liable to be set aside.  

20. In  the  result,  the  impugned  judgment  dated  20.08.2014

passed by the High Court  in WP No.3290 of 2014  is set aside

and this appeal is allowed. The delay in filing the appeal against

the  judgment  passed  in  Regular  Civil  Suit  No.35  of  2007  is

condoned and the appeal filed by the appellant and respondents

No.14       and 15 shall stand restored. The first appellate court

shall take the appeal titled “Shri Bhivchand Shankar More & Ors.

v. Shri Balu Gangaram More & Ors.” on file and proceed with the

same in accordance with law. We make it clear that we have not

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expressed any opinion on the merits of the matter.

……………………..J.  [R. BANUMATHI]

…………………………..J. [R. SUBHASH REDDY]

New Delhi; May 07, 2019

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