Bhivchandra Shankar More vs Balu Gangaram More & Ors.

HELD: 1.1 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 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 exparte. 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. The right of appeal under Section 96(2) is a statutory right and the defendant cannot be deprived of the statutory right of appeal. [Para 11, 12] [304-D-G]

1.2 The remedies provided as simultaneous and cannot be converted into consecutive remedies” cannot be applied in a rigid manner and as a straitjacket formula. It has to be considered depending on the facts and circumstances of each case and whether the defendant in 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 consecutively, 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. [Para 14] [306-C-E]

1.3 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. [Para 15] [306-E-F]

1.4 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. 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. [Para 16, 17] [307-D-E; G-H]

1.5 As per Section 97 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 preliminary decree, the suit filed by the respondents 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 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13. [Para 18] [308-A-C]

1.6 In the facts and circumstances of the case, the time spent in pursuing the application under Order IX Rule 13 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 set aside. The delay in filing the appeal against the judgment passed in the suit is condoned and the appeal filed by the appellant and respondents No.14 and 15 is restored. [Para 19, 20] [308-D-E]

Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar 1937 Vol. XL Bom Law Reporter

957 ; B. Madhuri Goud v. B. Damodar Reddy (2012)

12 SCC 693 ; Bhanu Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787 : [2004] 6 Suppl. SCR 1104 ; N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 : [1998] 1 Suppl. SCR 403 - referred to.