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2019 DIGILAW 2452 (BOM)

Durgadas v. Jayshri Hemraj Agrawal

2019-11-05

VINAY JOSHI

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JUDGMENT Vinay Joshi, J. - This second appeal arises out of the order dated 09.12.2009 in Miscellaneous Civil Application No. 201/2000 passed by the learned Principal District Judge, Amravati, by which the delay caused in filing regular civil appeal challenging the judgment and decree dated 04.09.1998 passed in R.C.S. No. 140/1997 is came to be rejected. This Court has admitted the appeal vide order dated 10.03.2010 by framing substantial questions of law. 2. Heard both sides exhaustively on the appeal and perused necessary documents. It would be apposite on my part to recapitulate the brief history for the purpose of quick appreciation. Initially, respondent had filed Regular Civil Suit No. 140/2007 in the Court of Joint Civil Judge, Junior Division, Chandur Railway for specific performance of contract. The said suit was came to be decreed ex parte vide judgment and order dated 04.09.1998. Consequently, the execution proceeding was filed to execute ex parte decree. During the pendency of execution proceeding, the appellant (original defendant) has preferred an application under the provisions of Order IX Rule 13 of the Code of Civil Procedure for setting aside ex parte decree. 3. Since there happened to be delay in preferring said application, it was accompanied with application for condonation of delay which was came to be rejected by learned trial Court. Rejection of delay condonation application was challenged by appellant/defendant in Writ Petition No. 312/2004 which was allowed by this Court vide order dated 27.04.2004. In consequence, the proceedings under Order IX Rule 13 of the Code of Civil Procedure was heard on merit and was came to be rejected by the trial Court vide order dated 29.08.2008. The appellant had challenged the said order in M.C.A. No. 47/2008, but could not succeed. 4. The second limb of litigation is in the shape of first appeal filed by the appellant/defendant in terms of Section 96 of the Code of Civil Procedure challenging the ex parte decree on merit. Said appeal was obviously accompanied with delay codonation application since there happened to be delay of few years in preferring appeal. The learned Principal District Judge, Amravati has rejected delay condonation application M.C.A. No. 201/2000 vide impugned order which is subject matter of challenge in this second appeal. 5. Said appeal was obviously accompanied with delay codonation application since there happened to be delay of few years in preferring appeal. The learned Principal District Judge, Amravati has rejected delay condonation application M.C.A. No. 201/2000 vide impugned order which is subject matter of challenge in this second appeal. 5. The appellant has come up with specific case that the scope of application under Order IX Rule 13 of the Code of Civil Procedure and first appeal under Section 96(2) of the Code of Civil Procedure are entirely different. Both remedies being of different nature, he can resort these remedies one after another since there is no prohibition to that effect. The appellant would contend that the delay of 11 years caused in filing first appeal has occasioned only due to pendency of proceedings under Order IX Rule 13 of the Code of Civil Procedure. According to him, the said reason amounts to a sufficient cause for codnonation of delay and therefore, the learned Principal District Judge went wrong in rejecting the delay condonation application. 6. It is urged that the learned Principal District Judge has misread the provisions of law. It is argued that though the appellant has not sought exclusion of time in terms of Section 14 of the Limitation Act, 1963, however the learned Principal District Judge considered the applicability of Section 14 of the Limitation Act, and ultimately rejected the delay condonation application. 7. On the other hand, respondent argued that the filing of first appeal challenging the ex parte decree after rejection of application under Order IX Rule 13 of the Code of Civil Procedure is a calculated move. Though appellant was entitled to resort both remedies simultaneously, he waited till conclusion of the proceedings under Order IX Rule 13 of the Code of Civil Procedure and therefore, in such peculiar facts, delay cannot be condoned. Moreover, it is his submission that the time spent in litigating the proceedings under Order IX Rule 13 of the Code of Civil Procedure cannot be construed as sufficient cause and to lend support for this submission, he relied on the decision of this Court in reported case of Amjad Ali Shafi Khan Vs. Abdul Hameed Abdul Gai Shaikh, (2019) 2 MhLJ 930 . Abdul Hameed Abdul Gai Shaikh, (2019) 2 MhLJ 930 . Lastly, respondent would submit that despite the reason of pendency of proceedings under Order IX Rule 13 of the Code of Civil Procedure, no other cause has been canvassed by appellant and therefore, he supported the impugned order. 8. Most of the factual aspect is not in dispute. Undeniably the appellant who suffered ex parte decree, has initially obtained recourse for setting aside the ex parte decree as per the provisions of Order IX Rule 13 of the Code of Civil Procedure. There is no dispute that ultimately, he remained unsuccessful in the said round of litigation. Thereafter, he chose to file appeal in terms of Section 96 of the Code of Civil Procedure challenging the ex parte decree. In other words, appellant initially opted to challenge on limited ground to set aside the ex parte decree which has limited scope to see either the appellant was not duly served or that he was prevented for "sufficient cause" from appearing in the Court. No doubt, the appellant has tested his fortune by resorting said remedy but when he become unsuccessful, he took another remedy available under the law of challenging ex parte decree on merits by filing first appeal in terms of Section 96(2) of the Code of Civil Procedure. 9. The core issue for consideration is whether the time consumed or spent in prosecuting the proceedings under Order IX Rule 13 of the Code of Civil Procedure can be construed as "sufficient cause" within the meaning of Section 5 of the Limitation Act. The learned counsel for the appellant submitted that the issue is covered by the decision of the Apex Court in case of Bhivchandra Shankar More Vs. Balu Gangaram More and others, (2019) 6 SCC 387 . It is submitted that exactly similar issue arose therefore, he is entitled for condonation of delay which was erroneously rejected by Lower Court. 10. The Apex Court in the case of Bhivchandra Shankare More (referred supra), in similar controversy has specifically framed two questions to be answered (Para 8) which are as follows:- "(i) Whether the time spent in the proceedings taken to set aside the ex parte decrfee constitute "sufficient cause" within the meaning of Section 5 of the 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 9 Rule 13 CPC has been dismissed on merits, whether regular appeal under Section 96(2) CPC is barred?" While answering the first question which is relevant for our purpose, it is held that the time spent in pursuing the application under Order IX Rule 13 of the Code of Civil Procedure is to be taken as "sufficient cause" for condoning the delay in filing the first appeal. Moreover, it is also observed that merely because the defendant pursued the remedy under Order IX Rule 13 of the Code of Civil Procedure, it does not preclude the defendant from filing the appeal, if his application under Order IX Rule 13 of the Code of Civil Procedure is dismissed. Apparently, the Apex Court has exhaustively dealt with the issue involved in this case and held that such time spent can be considered as "sufficient cause" for condonation of delay, unless there are no dilatory tactics or lack of bona fides. 11. In the wake of such decision, I have gone through the judgment of this Court relied by the respondent in case of Amjad Ali Shafi Khan Vs. Abdul Hameed Abdul Gai Shaikh. In the said case, alike this the then defendant initially resorted the remedy under Order IX Rule 13 of the Code of Civil Procedure. The matter was carried upto the Apex Court and appears to be pending. During meantime the then defendant preferred an appeal under Section 96 of the Code of Civil Procedure along with application for condonation of delay. The main ground canvassed by defendant for condonation of delay is not in strict sense under Section 5 of the Limitation Act, but, he has claimed exclusion of time in terms of Section 14 of the Limitation Act. In that context, this Court has negatived the applicability of the provisions of Section 14(1) of the Limitation Act. The Court has declined to exclude the time by observing that the provisions of Section 14 of the Limitation Act, are not applicable since there is no defect of jurisdiction of the earlier Court. Herein the appellant has specifically moved an application for condonation of delay under Section 5 of the Limitation Act. Application does not bear reference of claiming exclusion under Section 14 of the Limitation Act. Therefore, the said decision being on different facts, has no application at all. 12. Herein the appellant has specifically moved an application for condonation of delay under Section 5 of the Limitation Act. Application does not bear reference of claiming exclusion under Section 14 of the Limitation Act. Therefore, the said decision being on different facts, has no application at all. 12. The right of appeal under Section 96(2) of the Code of Civil Procedure is a statutory right which the defendant has resorted though after taking a chance of canvasing limited issue by application under Order IX Rule 13 of the Code of Civil Procedure. In regular appeal, the appellate Court has wide jurisdiction to go into the merits of the decree. The entire chronology discloses that though technically there happened to be delay of 11 years from the date of ex parte decree i.e. 04.09.1998, however, the entire time was spent in prosecuting application filed under Order IX Rule 13 of the Code of Civil Procedure and related proceedings. It is significant to note that in earlier round of litigation also there was certain delay in filing application under Order IX Rule 13 of the Code of Civil Procedure but the delay was condoned by this Court in Writ Petition No. 312/2004. 13. In substance, the appellant is seeking for condonation of delay of the time which was consumed for prosecuting the simultaneous remedy of setting aside the ex parte decree. Neither the District Court has observed nor respondent is able to point out any factual aspect so as to consider that the delay was intentional or there are lack of bona fides. In the result, the decision of Apex Court in Bhivchandra Shankar More (referred supra) is well applicable and the reason for condonation of delay of prosecuting the remedy under Order IX Rule 13 of the Code of Civil Procedure has to be construed as ''sufficient cause'' within the meaning of Section 5 of the Limitation Act. 14. For the reasons aforesaid, the appeal stands allowed. Impugned judgment and order passed by the learned Principal District Judge, Amravati in M.C.A. No. 201/2009 dated 01.12.2009 stands set aside. Delay caused in preferring regular appeal challenging the judgment and decree dated 04.09.1998 in R.C.S. No. 140/1997 stands condoned. Regular Civil Appeal be registered and to be preferably decided within the period of six months from the date of appearance of the parties. 15. No order as to costs.