MANU/SC/0687/2019

Equivalent Citation: 2019(4)ALLMR409, 2019 (135) ALR 215, 2019(4)ALT42, 2019(3)C GLJ48, 2019(4) C HN (SC ) 1, 2019(5)C TC 351,
2019(3)J.L.J.R.177, 2019(2)JKJ295[SC ], (2019)5MLJ370, 2019(3)PLJR178, 2019(3)RC R(C ivil)123, 2019 144 RD708, 2019(7)SC ALE551,
(2019)6SC C 387, 2019 (7) SC J 563, (2019)4WBLR(SC )380

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4669 of 2019 (Arising out of SLP (Civil) No. 28938 of 2014)
Decided On: 07.05.2019
Appellants: Bhivchandra Shankar More
Vs.
Respondent: Balu Gangaram More and Ors.
Hon'ble Judges/Coram:
R. Banumathi and R. Subhash Reddy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sushil Karanjkar and K.N. Rai, Advs.
For Respondents/Defendant: Vinay Navare, Sr. Adv., Gwen Karthika, Abha R. Sharma
and M.Y. Deshmukh, Advs.
Case Category:
PERSONAL LAW MATTERS - MATTERS RELATING TO PARTITION
Case Note:
Limitation - Condonation of delay - Section 5 of Indian Limitation Act, 1908
and Order IX Rule 13 and Section 96(2) of Code of Civil Procedure, 1908
(CPC) - Present appeal arose out of judgment passed by High Court by
which High Court refused to condone delay in filing first appeal challenging
ex-parte decree passed in Regular Civil Suit - Whether time spent in
proceedings taken to set aside ex-parte decree constitute "sufficient cause"
within meaning of Section 5 of Act, 1908 so as to condone delay in
preferring an appeal against ex-parte decree on merits - When an
application filed under Order IX Rule 13 of CPC had been dismissed on
merits, whether regular appeal under Section 96(2) of CPC was barred.
Facts:
Suit for partition was filed by Respondents No. 1 to 13 in the year 2007. It
was decreed ex-parte on 4th July, 2008. The Appellant and Respondents
No. 14 and 15 filed application under Order IX Rule 13 of CPC and the said
application was dismissed. Challenging the said order, the Appellant and
Respondents No. 14 and 15 preferred an appeal. About three years after its
filing i.e. on 11th June, 2013, the said appeal was withdrawn and on the
next day, the Appellant and Respondents No. 14 and 15 filed appeal
challenging 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. 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

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for some work and they could not pursue the matter and hence, the delay in
filing the appeal cannot be said to be intentional. 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.
Held, while allowing the appeal
1. Reading of Order IX Rule 13 of CPC and Section 96(2) of 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 of 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. [10]
2. "Sufficient cause" should be given liberal construction so as to advance
sustainable justice when there is no inaction, neither negligence nor want
of bonafide could be imputable to the Appellant. [15]
3. In present case, Respondents No. 1 to 13 filed a suit for partition in the
year 2007, which was decreed ex-parte on 4th July, 2008. Appellant and
Respondents No. 14 and 15 filed application under Order IX Rule 13 of CPC
and the same came to be dismissed on 6th August, 2010. Being aggrieved
by dismissal of application under Order IX Rule 13 of CPC, the Appellant
and Respondents No. 14 and 15 preferred an appeal under Order XLIII Rule
1(d) of CPC. Said appeal was pending for about three years and the same
was withdrawn. Thereafter, on the next day i.e. on 12th June, 2013, the
Appellant and Respondents No. 14 and 15 filed an appeal challenging the
ex-parte decree and judgment dated 4th July, 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. [17]
4. As per Section 97 of 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 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 4th July, 2008 on merits, notwithstanding the
dismissal of their application filed under Order IX Rule 13 of CPC. [18]
5. In the facts and circumstances of the present case, the time spent in
pursuing the application under Order IX Rule 13 of CPC is to be taken as
"sufficient cause" for condoning the delay in filing the first appeal. The

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impugned judgment of the High Court cannot be sustained and is liable to
be set aside. [19]
6. The delay in filing the appeal against the judgment passed in Regular
Civil Suit is condoned and the appeal filed by the Appellant and
Respondents No. 14 and 15 shall stand restored. Appeal allowed. [20]

JUDGMENT
R. Banumathi, J.
1. 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 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 Code of Civil Procedure
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 Code of Civil Procedure, 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.
4. Being aggrieved by the dismissal of application filed Under Order IX Rule 13 Code
of Civil Procedure, 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

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15 have spent their time in wrong proceedings viz. application filed Under Order IX
Rule 13 Code of Civil Procedure 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 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 Code of Civil Procedure
cannot be said to be wrong proceedings and hence, the time spent in pursuing the
remedy by filing application Under Order IX Rule 13 Code of Civil Procedure cannot
be excluded for calculating the limitation. The High Court relied upon its own
judgment in Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar
MANU/MH/0201/1937 : 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 Code of
Civil Procedure 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 Code of
Civil Procedure, 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.
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 MANU/SC/0708/2012 : (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 Code of Civil Procedure is wholly irrelevant since
those proceedings Under Order IX Rule 13 Code of Civil Procedure never operated as
a bar for filing an appeal Under Section 96(2) Code of Civil Procedure. It was further
submitted that the application filed Under Order IX Rule 13 Code of Civil Procedure
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 Code of Civil Procedure.
8 . We have carefully considered the submissions and perused the impugned
judgment and other materials placed on record. The following points arise for
consideration:

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 (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 Code of Civil Procedure
has been dismissed on merits, whether regular appeal Under Section 96(2)
Code of Civil Procedure 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 Code of Civil
Procedure on 15.10.2008 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 Code of Civil Procedure and Section 96(2)
Code of Civil Procedure indicates that the Defendant who suffered an ex-parte decree
has two remedies:(i) either to file an application Under Order IX Rule 13 Code of
Civil Procedure 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 Code of Civil Procedure
and Section 96(2) Code of Civil Procedure are entirely different. In an application
filed Under Order IX Rule 13 Code of Civil Procedure, 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) Code of Civil Procedure, the appeal
lies from an original decree passed ex-parte. In the regular appeal filed Under
Section 96(2) Code of Civil Procedure, 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
Code of Civil Procedure, it does not prohibit the Defendant from filing the appeal if
his application Under Order IX Rule 13 Code of Civil Procedure is dismissed.
12. The right of appeal Under Section 96(2) Code of Civil Procedure 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 Code of Civil
Procedure has been dismissed. In Bhanu Kumar Jain v. Archana Kumar and Anr.
MANU/SC/1079/2004 : (2005) 1 SCC 787, the Supreme Court considered the
question whether the first appeal was maintainable despite the fact that an
application Under Order IX Rule 13 Code of Civil Procedure 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:

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 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 MANU/SC/0246/2004 : (2004) 5 SCC 385,Deepal Girishbhai Soni
and Ors. v. United India Insurance Co. Ltd., Baroda and Chandravathi P.K.
and Ors. v. C.K. Saji and Ors. MANU/SC/0128/2004 : (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 MANU/SC/0010/1982 : (1982) 2 SCC 596,P. Kiran Kumar v. A.S.
Khadar and Ors. MANU/SC/0419/2002 : (2002) 5 SCC 161 andShyam Sundar Sarma
v. Pannalal Jaiswal and Ors. MANU/SC/0944/2004 : (2005) 1 SCC 436.
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 under:
15. ... An unscrupulous Defendant may file the application Under Order IX
Rule 13 Code of Civil Procedure 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 Plaintiff 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.
1 4 . The above observation of the High Court that "the remedies provided as
simultaneous and cannot be converted into consecutive 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 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 Code of Civil Procedure, the Defendant would be
deprived of the statutory right of appeal in challenging the decree on merits.

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1 5 . 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. Krishnamurthy MANU/SC/0573/1998 : (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 Code of Civil Procedure 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 04.07.2008. Appellant and Respondents No. 14
and 15 filed application Under Order IX Rule 13 Code of Civil Procedure and the same
came to be dismissed on 06.08.2010. Being aggrieved by dismissal of application
Under Order IX Rule 13 Code of Civil Procedure, the Appellant and Respondents No.
14 and 15 preferred an appeal Under Order XLIII Rule 1(d) Code of Civil Procedure
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.

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18. It is pertinent to note that as per Section 97 Code of Civil Procedure 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-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 Code of Civil Procedure.
19. In the facts and circumstances of the present case, the time spent in pursuing the
application Under Order IX Rule 13 Code of Civil Procedure 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 and Ors. v. Shri Balu Gangaram More and Ors." on file and proceed with the
same in accordance with law. We make it clear that we have not expressed any
opinion on the merits of the matter.
© Manupatra Information Solutions Pvt. Ltd.

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