BHIVCHANDRA SHANKAR MORE versus BALU GANGARAM MORE & ORS.

Citation: [2019] 7 S.C.R. 298 · Decided: 07-05-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
298
SUPREME COURT REPORTS
[2019] 7 S.C.R.
BHIVCHANDRA SHANKAR MORE
v.
BALU GANGARAM MORE & ORS.
(Civil Appeal No. 4669 of 2019)
MAY 07, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Code of Civil Procedure, 1908: Or. IX r. 13 and s. 96(2) –
Setting aside decree ex parte against defendant – Suit for partition
by respondents no.1 to 13 decreed ex-parte – Application u/Or. IX
r. 13 by the appellant and respondents No.14 and 15 – Dismissed
by the trial court – Appeal by appellant and respondents No.14
and 15 – Withdrawal of the said appeal after three years – On the
next day, the appellant and respondents No.14 and 15 filed an appeal
challenging the ex-parte decree in the suit – Parties also filed
application for condonation of delay in filing appeal against ex
parte decree, which was allowed – Writ petition there against allowed
by the High Court – On appeal, held: Right of appeal u/s. 96(2) 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 u/Or. IX r.13 has been dismissed – Time spent in pursuing
the application u/Or. IX r.13 to set aside the ex-parte decree to be
taken as “sufficient cause” for condoning the delay in filing the
first appeal – Order of the High Court cannot be sustained and is
set aside – Delay in filing the appeal against the judgment passed
in the suit is condoned and the appeal filed by appellant and
respondents No.14 and 15 is restored.
Allowing the appeal, the Court
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
   [2019] 7 S.C.R. 298
298
A
B
C
D
E
F
G
H
299
“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. 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]
BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM
MORE & ORS.
A
B
C
D
E
F
G
H
300
SUPREME COURT REPORTS
[2019] 7 S.C.R.
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

Excerpt shown. Read the full judgment & AI analysis in Lexace.