RANI CHOUDHURY versus LT. COL. SURAJ JIT CHOUDHURY

Citation: [1983] 1 S.C.R. 372 · Decided: 24-08-1982 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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372 
RANI CHOUDHURY 
v. 
' 
LT .. ,coL. SURAJ JIT CHOUDHURY 
August 24, 1982. 
[R.S. PATHAK AND AMARBNDRA NATH SEN. JJ.J 
Interpretation of"Exp/anation" in a statute-Explained, 
Maintainability of an application undtr Rule 13 of Order I~, lfhen an 
appeal preferred under section 96 Civil Procedure Code with an application under 
stction 5 of the Limitation Act has been .dismissed-Scope of. Rule 13 of 
Order IX, C.P.C.-Words & Phrases--"On any ground_ other than the ground.that 
the appellant has withdrawn the appeal", meaning of. 
The appellant wife filed on 1.9;1979, a petition under section 13 of the 
Hindu Mar-.:iage Act, against the respondent for dissolution of her marriage with 
him and for a dCcree for divorce." The next date o( bearing was fixed for 
6.12.1979. On J0.11.1979, the respondent husband bad addressed a letter to tbe 
court requesting the court f~r an adjournment of the case fi.7t:ed for 6.12.1979 on 
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the ground that because of special assignment it would not be possible for'him 
to be present in Court on that day. On that date, the court ~efused to grant the 
adjournment and passed an ex-parte decree in favour of the appellant. 
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The respondent husband, thereafter preferred an appeal under section 96 
of the Civil Procedure C~de before the High Court with an application under 
section 5 of the Liniitation ·Act to condone the delay in filing. 
The High Court 
dismissed the condonat1on ~application as well as the appeal. Thereafter the 
respondent husband moved the Trial Court with an application under Rule_ 13 
of Order IX with an application under section 5 o.f the Limitation Act. ·Both 
the applications were dismissed. The "respondent husband moved the High Gourt jl 
against the said orders of dismissal which was accepted rejecting the contention_ 
of the appellant wife that the newly added Explanatio·n to Rule 13 of Order IX 
C.P.C. is a bar to the maintainabilily of the application itself filed by the 
respondent ~usband' under that Rule. Hence the appeal by the appellant wife, 
after obtaining special leave of the Court. 
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Allowing the appeal the Court, 
HELD :~Per Pathak, J. 
(Concuning with A.N. Sen, J.) 
I. No doubt the provision is described :is' an 'Explanation', but it is not the 
ni\>ri9 which decisivelr1detln~~ tJl~ trµ~ liature of a statutory provision. Its truQ 
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RANI CHOUDHURY v. SURAJ JIT SINGH (Pathak, J.) 
373 
nature must be determined frorii the con°tent of the provision, its import gathered 
from the language 'employed, and the language construed in the context in which 
the provision has been enacted. 
What was the law before the amendment, what 
was the ~ischief and defect for· which the law did not provide, what remedy has 
Parliament resolved and appointed tb cure the mischief, ai;id the true reason of 
the remedy. [376 E·G, 377 A-BJ 
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RUie in Heyd on' s case, 16 English Reports 637; Swant raj & Ors. v: State 
of Maharashtra [1974],3 SCR 287, followed. 
2:1. The Code of Civil Procedure (Amendment) Act, 1976 was enacted· 
with the avowed purpose of abridging and simplifying the procedural la~. Prior 
to it a defendant burdened by an ex-parte· decree could apply to the trial court 
under Rule 13 of Order IX C.P.C. for setting aside· the decree: He could alsO 
appeal under section 96 against' the decree. The mere, filing of the appeal 
did not take away -the jurisdiction of the trial court to entenain and dispose of 
application for setting aside the ex~parte decree. It was where the appeal was 
disposed of, and the appellate dCcree superseded the trial court decree by revera 
~ing, confirming or _varying it that the trial court could not proceed to set aside 
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its ex-parte decree. For the trial court. decree was said to have ~erged with 
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·~the appellate decree. Prior. to the Amendment Act, the courts were open to a 
duplication of proceedings, and although the ·immediate relief claimed in the 
two proceedings was not identical both ultimately aimed at a redecision on the 
merits. The earlier disposal of either resulted in the other becoming infructuous. 
The plaintiff, therefore, was in the unfortunate position of being dragged through 
two courts in simultaneous procee~ings. (376 A-C, 377 C-D] 
2:2. .Public time and private convenience and money was sought. to be 
saved by enacting the Explanation. By enacting the Explanation, Parliament 
left it open to the defendant to apply under Rule J 3 of Order IX for setting aside 
an ex

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