04 November 2004
Supreme Court
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SHYAM SUNDAR SARMA Vs PANNALAL JAISWAL .

Bench: C.J.I.R.C. LAHOTI,G.P. MATHUR,P.K. BALASUBRAMANYAN
Case number: C.A. No.-005550-005550 / 2004
Diary number: 24308 / 2003
Advocates: Vs TARA CHANDRA SHARMA


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CASE NO.: Appeal (civil)  5550 of 2004

PETITIONER: SHYAM SUNDAR SARMA                               

RESPONDENT: PANNALAL JAISWAL AND OTHERS              

DATE OF JUDGMENT: 04/11/2004

BENCH: C.J.I.R.C. LAHOTI,G.P. MATHUR & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

P.K. BALASUBRAMANYAN, J.

               Respondent No.1 herein filed Title Suit No.89 of 1992 on  the file of the Munsif’s Court at Howrah against the appellant and  others for a declaration of his title as a Thika Tenant in respect of the  plaint A schedule property and for other consequential reliefs.   The  appellant herein- defendant No.1 in the suit, entered appearance and  contested the suit and the application for interim injunction filed by the  plaintiff.   The application for interim injunction was heard and the  same was dismissed by the trial court.   The plaintiff filed an appeal  against that order under Order XLIII Rule 1 of the Code of Civil  Procedure, 1908 (for short "the Code") and that appeal was also  dismissed by the District Judge on 16.3.1994.

2.              The suit itself stood posted to 8.10.1996.   The appellant \026  the first defendant, did not appear.   The evidence of the plaintiff was  recorded.   On 9.10.1996 the plaintiff filed two applications \026 one for  an amendment of the plaint and the other for certain corrections in the  plaint.    Those applications were allowed the same day in the absence  of any opposition.   In view of his absence, the first defendant, the  appellant, was set ex parte and on 11.10.1996, the suit was decreed ex  parte. 3.              On 16.11.1996, the first defendant, the appellant, filed a  petition under Order IX Rule 13 of the Code accompanied by an  application under Section 5 of the Limitation Act  for condoning the  delay in filing the petition for setting aside the ex parte decree.   Both  the applications were opposed by the plaintiff.   On 21.11.1996, the  first defendant \026 the appellant, also filed an appeal, Title Appeal  No.157 of 1996, against the ex parte decree along with an application  for condoning the delay in filing that appeal as enjoined by Order XLI  Rule 3A of the Code and invoking Section 5 of the Limitation Act.   On  17.9.1998, the trial court allowed the application filed by the first  defendant under Section 5 of the Limitation Act and condoned the  delay in filing the petition under Order IX Rule 13 of the Code.    The  plaintiff challenged that order in the District Court in revision, but the  revision was dismissed on 11.8.2000.   There was a further revision to  the High Court which was dismissed on 14.9.2000.

4.              On 21.1.2000, since the first defendant \026 the appellant, did  not appear to prosecute his application under Section 5 of the  Limitation Act in Title Appeal No. 157 of 1996, his appeal against the  ex parte decree, the District Court dismissed that application for non  taking of steps, resulting in default.    On 6.3.2000, in view of the non  appearance of the first defendant \026 the appellant, Title Appeal No.157  of 1996 against the ex parte decree itself was dismissed for default.   In

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other words, both the application  under Section 5 of the Act for  condoning the delay in filing that appeal  and the appeal against the ex  parte decree filed by the first defendant stood dismissed for default. 5.              In the trial court, the petition for setting aside the ex parte  decree filed under Order IX Rule 13 of the Code came up for hearing.    On behalf of the plaintiff, an objection was raised that in view of the  filing of Title Appeal No. 157 of 1996 by the first defendant against the  ex parte decree and in view of the explanation to Order IX Rule 13 of  the Code, the application under Order IX Rule 13 of the Code could not  be entertained by the court which had passed the ex parte decree.   On  behalf of the first defendant \026 the appellant, it was contended that since  the appeal filed by the appellant against the ex parte decree was  dismissed for default as a consequence of the dismissal of the  application for condoning the delay in filing that appeal being  dismissed for default, the explanation created no bar to the entertaining  of the petition under Order IX Rule 13 of the Code, especially in the  context of the fact that the delay in filing that petition had already been  condoned by the trial court and affirmed up to the High Court.  But, the  trial court took the view that since the appeal against the ex parte  decree filed by the first defendant was not withdrawn, the petition  under Order IX Rule 13 of the Code could not be entertained or relief  granted to the first defendant in view of the explanation to Order IX  Rule 13 of the Code.   Thus, the petition for setting aside the ex parte  decree was dismissed.    The first defendant challenged that decision in  an appeal under Order XLIII Rule 1 of the Code.   The lower appellate  court agreed with the conclusion of the trial court that the explanation  to Order IX Rule 13 of the Code precluded the court from exercising its  power to set aside the ex parte decree.    Thus, the appeal was  dismissed.   The first defendant challenged the same in a proceeding  before the High Court under Article 227 of the Constitution of India.    The High Court held that the question posed for decision was covered  by decisions of this Court referred to by it in its order and in the light of  those decisions the order of the trial court as affirmed by the District  Court, could not be interfered with.    The High Court, thus, dismissed  the petition filed by the first defendant under Article 227 of the  Constitution of India.   The first defendant has challenged this order of  the High Court in this appeal.

6.              On the facts, it is thus clear, that the first defendant filed a  petition for setting aside the ex parte decree under Order IX Rule 13 of  the Code accompanied by an application for condoning the delay in  filing that petition, and subsequently he also filed an appeal against that  ex parte decree, again accompanied by an application for condoning the  delay in filing that appeal.  That application for condoning the delay in  filing the appeal against the ex parte decree and the appeal against ex  parte decree were  both dismissed for default.  The petition for setting  aside the ex parte decree under Order IX Rule 13 of the Code was filed  first and the appeal was filed while that petition was pending.   But  before the petition under Order IX Rule 13 of the Code could be  disposed of, the appeal had been dismissed for default.   Thus, on the  day the petition under Order IX Rule 13 of the Code was taken up for  disposal, no appeal against the decree was pending.

7.              The explanation to Order IX Rule 13 of the Code added by  the Code of Civil Procedure (Amendment) Act, (Act No.104 of 1976),  which came into force with effect from 1.2.1977, reads as under: "Explanation \026 Where there has been an appeal  against a decree passed ex parte under this rule,  and the appeal has been disposed of on any ground  other than the ground that the appellant has  withdrawn the appeal, no application shall lie  under this rule for setting aside the ex parte  decree."

       It is argued on behalf of the appellant that on the day the petition

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under Order IX Rule 13 of the Code was filed, no appeal against the  decree had been filed or was in existence and consequently, the bar  created by the explanation did not apply since it only provided that a  petition under Order IX Rule 13 of the Code could not be entertained  only in a case where the ex parte decree was already subjected to an  appeal.   To add emphasis to this argument, he also submitted that on  the day the trial court took up the petition under Order IX Rule 13 of  the Code for consideration, the appeal against the decree itself had been  dismissed for default and hence no appeal was in existence.   There was  no decision on merits in the appeal so as to bring about a merger of the  decree of the trial court in that of the appellate court.  It was further  submitted that since the appeal itself could not be entertained in view of  the dismissal of the application for condoning the delay in filing the  appeal filed in terms of Order XLI Rule 3A of the Code read with  Section 5 of the Limitation Act, it had to be taken that there came into  existence no appeal in the eye of law and consequently, the bar created  by the explanation did not apply.   He ultimately submitted that the  dismissal of an appeal for non prosecution amounts to a withdrawal of  the appeal by the appellant and consequently it cannot stand in the way  of the petition filed under Order IX Rule 13 of the Code being heard  and disposed of on merits.     On behalf of the plaintiff-respondent it is  submitted that the arguments raised could not be accepted in the light  of the decisions of this Court referred to and followed by the High  Court and there was also no occasion for reconsidering the correctness  of those decisions since the law has been correctly laid down in those  decisions.   It is  submitted  that the dismissal of an appeal for default or  on the ground that it was barred by limitation cannot be considered as a  withdrawal of the appeal excluding the operation of the explanation to  Order IX Rule 13 of the Code.   Nor can it be contended that an appeal  filed with a petition for condoning the delay in filing that appeal is not  an appeal and the dismissal of the application for condoning the delay  and the consequent dismissal of the appeal, is not a dismissal of the  appeal as contemplated by the Code.

8.              The first question to be considered is whether an appeal  accompanied by an application for condoning the delay in filing the  appeal is an appeal in the eye of law, when the application for  condoning the delay in filing the appeal is dismissed and consequently  the appeal is dismissed as being time barred by limitation,   in view of  Section 3 of the Limitation Act.  There was conflict of views on this  question before the High Courts.  But the Privy Council in Nagendra  Nath Dey vs. Suresh Chandra Dey ( 59 Indian Appeals 283) held,  "there is no definition of appeal in the Civil  Procedure Code, but their Lordships have no doubt that  any application by a party to an appellate Court, asking it  to set aside or revise a decision of a subordinate court, is  an appeal within the ordinary acceptation of the term and  that it is no less an appeal because it is irregular or  incompetent."     

These observations were referred to with approval by this Court in   

Raja Kulkarni and others vs. The State of Bombay  ( 1954 SCR  384).     9.              The specific question involved, came to be considered by  this Court in Messrs Mela Ram and Sons  vs. The Commissioner of  Income Tax, Punjab ( 1956 SCR 166 ).   This Court held that an  appeal presented out of time is an appeal and an order dismissing it as  time barred is one passed in an appeal.   This Court referred to and  followed the view taken by the Privy Council and by this Court in the  two respective decisions above referred to.   This Court quoted with  approval the observations of Chagla C.J. in K.K. Porbunderwalla vs.

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Commissioner of Income Tax ( 1952 ) 21 ITR 63 ) to the following  effect: "\005\005.. although the Appellate Assistant  Commissioner did not hear the appeal on merits  and held that the appeal was barred by limitation  his order was under Section 31 and the effect of  that order was to confirm the assessment which  had been made by the Income-tax Officer."

In Sheodan Singh vs. Daryao Kunwar ( AIR 1966 SC 1332 )  rendered by four learned Judges of this Court, one of the questions that  arose was whether the dismissal of an appeal from a decree on the  ground that the appeal was barred by limitation was a decision in the   appeal.   This Court held:   "We are therefore of opinion that where a decision  is given on the merits by the trial court and the  matter is taken in appeal and the appeal is  dismissed on some preliminary ground like  limitation or default in printing, it must be held  that such dismissal when it confirms the decision  of the trial court on the merits, itself amounts to  the appeal being heard and finally decided on the  merits whatever may be the ground for dismissal  of the appeal."

                In Board of Revenue vs. M/s Raj Brothers Agencies Etc.  (1973 (3) SCR 492 ), this Court approved the decision of the Madras  High Court which had applied the principle stated in Messrs Mela  Ram and sons (supra).    

10.             The question was considered in extenso by a Full Bench of  the Kerala High Court in Thambi vs. Mathew (1987 (2) KLT 848).    Therein, after referring to the relevant decisions on the question it was  held that an appeal presented out of time was nevertheless an appeal in  the eye of law for all purposes and an order dismissing the appeal was a  decree that could be the subject of a second appeal.  It was also held  that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976  to the Code, did not in any way affect that principle.  An appeal  registered under Rule 9 of Order XLI of the Code had to be disposed of  according to law and a dismissal of an appeal for the reason of delay in  its presentation, after the dismissal of an application for condoning the  delay, is in substance and effect a confirmation of the decree appealed  against.   Thus, the position that emerges on a survey of the authorities  is that an appeal filed along with an application for condoning the delay  in filing that appeal when dismissed on the refusal to condone the delay  is nevertheless a decision in the appeal.

11.             Learned counsel for the appellant relied on the Full Bench  decision of the Calcutta High Court in Mamuda Khateen and others  vs. Beniyan Bibi and others  ( AIR 1976  Calcutta 415 ) to contend  that an order rejecting a time barred memorandum of appeal  consequent upon refusal to condone the delay in filing that appeal was  neither a decree nor an appellable order.   On going through the said  decision it is seen that though the Full Bench referred to the divergent  views on that question in the Calcutta High Court prior to the rendering  of the decision of this Court in Messrs Mela Ram and Sons (supra)  had not considered the decisions of this Court in Raja Kulkarni  (supra) and in Messrs Mela  Ram and Sons (supra),  in coming to that  conclusion.  In fact it is seen that there was no discussion on that aspect  as such, though there was a reference to the conflict of views in the  decisions earlier rendered by the Calcutta High Court.   Since the ratio  of that decision runs counter to the principle laid down by this Court in

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Messrs Mela Ram and Sons (supra), obviously the same could not be  accepted as laying down a correct law.

12.             Learned counsel placed reliance on the decision in  Ratansingh vs. Vijaysingh and others  [(2001) 1 SCC 469 ] rendered  by two learned Judges of this Court and pointed out that it was held  therein that dismissal of an application for condonation of delay would  not amount to a decree and, therefore, dismissal of an appeal as time  barred was also not a decree.   That decision was rendered in the  context of Article 136 of the Limitation Act, 1963 and in the light of  the departure made from the previous position obtaining under Article  182 of the Limitation Act, 1908.   But we must point out with respect  that the decisions of this Court in Messrs Mela Ram and Sons and  Sheodan Singh  (supra) were not brought to the notice of their  Lordships.   The principle laid down by a three Judge Bench of this  Court in M/s Mela Ram and Sons (supra) and that stated in Sheodan  Singh (supra) was, thus, not noticed and the view expressed by the two  Judge Bench, cannot be accepted as laying down the correct law on the  question.   Of course, their Lordships have stated that they were aware  that some decisions of the High Courts have taken the view that even  rejecting an appeal on the ground that it was presented out of time is a  decree within the definition of a decree obtaining in the Code.     Thereafter noticing the decision of the Calcutta High Court above  referred to, their Lordships in conclusion apparently agree with the  decision of the Calcutta High Court.    Though the decision of the Privy  Council in Nagendra Nath Dey vs. Suresh Chandra Dey (supra) was  referred to, it was not applied on the ground that it was based on Article  182 of the Limitation Act, 1908, and there was a departure in the legal  position in view of Article 136 of the Limitation Act, 1963.   But with  respect, we must point out that the decision really conflicts with the  ratio of the decision in Messrs Mela Ram and Sons  and Sheodan  Singh (supra) and another decision of this Court rendered by two  learned Judges in Rani Choudhury Vs. Lt.-Col. Suraj Jit  Choudhury [(1982) 2 SCC 596].  In Essar Constructions vs. N.P.  Rama Krishna Reddy [(2000) 6 SCC 94) brought to our notice two  other learned Judges of this Court, left open the question.   Hence,  reliance placed on that decision is of no avail to the appellant.

13.             In the context of the explanation to Order IX Rule 13 of  the Code, the question was squarely considered by this Court in Rani  Choudhury’s case (supra).   The High Court, in our view, has rightly  held that the decision of this case is directly covered by that decision.        Therein, the plaintiff, the wife, obtained an ex parte decree for divorce  against the husband, the defendant.   The husband preferred an appeal  in the High Court against the decree and also made an application  under Section 5 of the Limitation Act for condoning the delay in filing  that appeal.   The High Court dismissed the appeal as being time  barred.  The husband, the defendant, then filed a petition under Order  IX Rule 13 of the Code for setting aside the ex parte decree along with  an application under Section 5 of the Limitation Act.   The trial court  dismissed the application holding that no sufficient cause was made out  for condoning the delay in filing the petition under Order IX Rule 13 of  the Code.   The husband filed a Civil Miscellaneous Appeal in the High  Court challenging the said order of the trial court.   The High Court  took the view that the explanation to Order IX Rule 13 of the Code did  not create a bar to the maintainability of the petition under that Rule as  the appeal against the ex parte decree had been dismissed not on merits  but on the ground of limitation by not accepting the application for  condonation of delay which meant that no appeal was preferred in the  eye of law.   This view of the High Court was challenged in appeal  before this Court.  It was argued that the High Court has misunderstood  the scope and ambit of the explanation to Order IX Rule 13 of the Code  and that in the circumstances, the High Court should have held that the  petition under Order IX Rule 13 of the Code would not lie.    This  Court accepted that contention.   This Court held that where there has

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been an appeal against an ex parte decree and the appeal has not been  withdrawn by the appellant and had been disposed of on any ground,  the application under Order IX Rule 13 of the Code would not lie and  should not be entertained.   Hence, even though the appeal against the  ex parte decree was disposed of on the ground of limitation and not on  merits, the explanation to Order IX Rule 13 of the Code was attracted  and hence no petition under Order IX Rule 13 of the Code would lie.      On the scope of the explanation, it was stated that the disposal of the  appeal as contemplated in the explanation was not intended to mean or  imply a disposal on merits resulting in the merger of the decree of the  trial court with a decree, if any, of the appellate court on the disposal of  the appeal.   The disposal of the appeal may be on any ground and  though the withdrawal of an appeal by an appellant is also to be  considered a disposal of the appeal, the same has been expressly  exempted by the explanation.   It was also observed that the legislative  intent incorporated in the explanation to Order IX Rule 13 of the Code  was to confine the defendant to a single course of action and to  discourage the prolonging of the litigation on the ex parte decree,  namely, by preferring an application to the trial court under Order IX  Rule 13 of the Code for setting aside the decree and by filing an appeal  to a superior court against it.   If he did not withdraw the appeal filed by  him or allowed the appeal to be disposed of on any other ground, he  was denied the right to apply under Order IX Rule 13 of the Code.    The Court also clarified that by the introduction of the explanation, the  area of operation of the doctrine of merger was enormously extended.    By virtue of the explanation, the disposal of the appeal on any ground  whatever, apart from its withdrawal, constituted sufficient reason for  bringing the ban into operation.   In the light of this, it was held that  though in that case the appeal filed by the husband against the ex parte  decree was dismissed on the ground of it being barred by limitation, it  was a disposal of the appeal and the petition under Order IX Rule 13 of  the Code was hit by the explanation.            In    P. Kiran Kumar vs.  A.S. Khadar and others [(2002) 5 SCC 161] this Court followed the  decision in Rani Choudhury (supra) and held that the dismissal of the  appeal against an ex parte decree as barred by limitation, prevented the  trial court which passed the ex parte decree, from exercising its power  under Order IX Rule 13 of the Code in view of the explanation.

14.             It was sought to be argued on behalf of the appellant that  the above decisions were distinguishable in view of the fact that in  those cases, the appeals against the decrees were filed first, followed by  the petitions under Order IX Rule 13 of the Code, whereas in the  present case the petition under Order IX Rule 13 of the Code was filed  first and only during its pendency, an appeal against the decree was  filed, with an application for condoning the delay in filing it.  In our  view, this would not make any difference to the principle enunciated by  this Court in Rani Choudhury’s case (supra).   Moreover, on the day  the trial court was called upon to consider and dispose of the petition  under Order IX Rule 13 of the Code, an appeal, though belated, had  been filed against the decree by the appellant and the same had been  dismissed as barred by limitation and had not been withdrawn.   It is  not possible to accept the argument that the application of the  explanation should be confined to cases where an appeal had already  been filed against the ex parte decree and it should be held not to apply  to cases where an appeal is subsequently filed.   The acceptance of such  an argument, in our view, would tend to defeat the legislative scheme  as noticed in Rani Choudhury’s case (supra).   In the light of the  object sought to be achieved by the introduction of the explanation to  Order IX Rule 13, such an argument cannot also be accepted.    

15.             We are not impressed by the argument of learned counsel  for the appellant that the decision in Rani Choudhury’s case (supra)  requires reconsideration.   On going through the said decision in the  light of the objects and reasons for the introduction of the explanation  to Order IX Rule  13 and the concept of an appeal as indicated by the

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Privy Council  and this Court in the decisions already cited, the  argument that an appeal which is dismissed for default or as barred by  limitation because of the dismissal of the application for condoning the  delay in filing the same, should be treated on a par with the non-filing  of an appeal or the withdrawal of an appeal, cannot be accepted.   The  argument that since there is no  merger of the decree of the trial court in  that of the appellate court in a case of this nature and consequently the  explanation should not be applied, cannot also be accepted in the  context of what this Court has earlier stated and what we have noticed  above.

16.             Thus, in the case on hand we find that the trial court, the  appellate court and the High Court have rightly held that the petition  under Order IX Rule 13 of the Code would not lie in view of the filing  of an appeal against the decree by the appellant and the dismissal of the  appeal though for default, since a dismissal for default or on the ground  of it being barred by limitation cannot be equated with a withdrawal of  the appeal.   Consequently, the decision of the High Court is affirmed  and this appeal is dismissed.   In the circumstances of the case we make  no order as to costs.