Allowed

Mr. Suresh G. Ramani through Attorney Rekha Gawri v. Mrs. Aurelia Ana Da Piedade Miranda Alias Araiyo Alvares (Dec) through Lr'S and 3 Ors.

Bombay HC2 Mar 2012SA/81/2011

Case brief

AI extract

What is this about?

In this second appeal, the Hon'ble High Court of Bombay at Goa held that the pendency of an appeal against the dismissal of an application to set aside an ex parte decree does not bar the filer from seeking to appeal against the ex parte decree itself under Section 96(2) CPC. The Court quashed the lower appellate order rejecting the delay condonation application and directed the lower court to con

What did the court decide?

The order dated 26th April, 2007 of Civil Misc. Application No.101/2004 was quashed; the delay condonation application was allowed provided the appellant pays Rs.5000/- as costs. The lower Appellate C

Mr. Suresh G. Ramani through Attorney Rekha… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA

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SECOND APPEAL NO. 81 OF 2011

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Mr. Suresh G. Ramnani, s/o. Gobindram J. Ramnani, about 59 years old, married, Indian national, resident of Wing “E”, Room No.19, 4^th Floor, Mithul Enclave, Opp. Jijamata, Mahul Rd, Chembur, Mumbai 400 074, through his constituted Power of Attorney, Smt. Rekha Gawri, major, Indian National, resident of 9/4, Shivpuri, Chembur Naka, Mumbai -400071.

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…....... Appellant.

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Versus

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1 Mrs. Aurelia Ana da Piedade Miranda alias Araiyo Alvares, SEFAA Vidyanagar, Aquem, Margao-Goa ( expired, rep. by L.R.'s)

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1(i) Ian Karl Alvares, r/o Scotland, Great Britain, and C/o. Mario Alvares, SEFAA Vidyanagar, Aquem, Margao, Goa.

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1(ii) Lalita Alvares, r/o. SEFAA

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	Vidyanagar, Aquem, Margao-Goa.
2	Mario Jose Araiyo Alvares, SEFAA, Vidyanagar, Aquem, Margao Goa.
3	Maria Amelia da Piedade, Miranda e Pinto, 417, Rua Abade Faria, Margao-Goa.
4	Jose Savio da Piedade, Albuquerque Pinto, 417, Rua Abade Faria, Margao, Goa.
5	Mr. Kirshnapati Raia, son of Yabheya Prassad Shivasta, aged about 45 years, resident of Junta Quarters, C-2-20, Pajifond, Margao.
6	Budasab Mulla, married, aged about 50 years, r/o.
	C/o. G. Rammani &
	Associates, 396, New
	Township, Opp. Nanba & Shivram Milkman's House, Guirdolim, Chandor, Salcete
	Goa. ….....	. Respondents.

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Mr. S. G. Dessai, Senior Advocate with Mr. A. Gaonkar, Advocate for the appellant.

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Mr. A. F. Diniz, Advocate for the respondents No.1 to 4.

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CORAM :- S.C. DHARMADHIKARI, J. Date :- 2^nd March, 2012.

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ORAL JUDGMENT :-

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By this Second Appeal, the appellant-original defendant No.1(c) has impugned and challenged the decree/order dated 26^th April, 2007 in Civil Misc. Application No. 101/2004 delivered in an Appeal, which was filed to impugn the Judgment and Decree dated 26^th August, 2003 of the Civil Judge, Jr. Division at Margao in Regular Civil Suit No. 21/1985. The said suit has been filed by the respondents No.1 to 4 to this appeal.

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Respondent No.5 is the original defendant No.3 and respondent No.6 to this appeal is the original respondent No.5.

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It would be convenient to give a brief factual background which would be necessary for formulation and eventual consideration and determination of the substantial questions of law.

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The suit from which the appeal arises was for declaration and injunction. There are large chunk of survey numbers of a larger property admeasuring 3,36,475 sq. metres which belonged to one Luis Francisco de Piedade Miranda who was married to Mrs. Aurelia Coutinho Miranda. In the inventory proceedings initiated upon the death of said Luis Miranda, the property came to be allotted to Mrs. Aurelia Coutinho Miranda. The said Aurelia expired and subsequent thereto a Deed of Partition was executed amongst all her heirs on 9^th January, 1950. The said property, to the exclusion of one specific portion (1/8^th ) of it, was allotted to Aureliano Piedade Miranda, the son of Aurelia Coutinho Miranda and father of plaintiff Nos. 1 and 3. The said Aureliano died on 15^th August, 1955, leaving behind his widow Alba Pinto Dias e Miranda and as his sole and universal heirs, his two daughters the plaintiffs No.1 and 3. The widow Mrs. Alba died on 28^th July, 1971. Plaintiff Nos. 1 and 3 are, therefore, the sole and exclusive owners of the said property together with their respective husbands, excluding the said 1/8^th portion which was covered by the Deed of Partition granted to them.

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On 9^th April, 1973, the case of the plaintiffs is that, they

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entered into an agreement with defendant No.1 for the sale of the said entire property. The property, therefore, was divided into 12 plots. These were further sub-divided into 386 plots. Plots No. 8, 10, 11 and 12 were sold to the original defendant No.1 by different sale deeds. Plots No. 1 to 7 and 9 have not been sold to defendant No.1 and they continued to belong to the plaintiffs and the plaintiffs claim that they are in physical possession of the same. In the record of rights, prepared for the village of Guirdolim, these survey numbers stand recorded in the name of M/s. G. Ramani and Associates, a proprietorship concern of original defendant No.1. Several opportunities were given to the defendant No.1 to perform his part of agreement and when he failed to perform the same, a notice was published in the news paper in the year 1983 – 1984, warning public that the defendants No.1, 2 and 3 are trying to sell the land which does not belong to them and they have now entered into some agreement with defendant No.4 on 8^th January, 1985, and the sale proposed is without any title. It is on these allegations that the plaintiffs seek relief.

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It is stated that the suit was defended by the defendants

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and yet, it came to be decreed ex parte by the trial Court.

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Aggrieved by this ex parte decree, an application was made to set aside the same (Civil Misc. Application No. 28/2003/II). This application was filed by the present appellant-original defendant No.1(c). This application was contested by the original plaintiffsrespondents No.1 to 4 to this appeal and the said application came to be dismissed by the Trial Court on 7^th August, 2004.

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It is common ground that the present appellant filed Misc. Civil Appeal No.71/2004 in the District Court, challenging the Order dated 7^th August, 2004 in Civil Misc. Application No.28/2003 invoking Order IX, Rule 13 of the Civil Procedure Code (CPC). It is further common ground that on the same day i.e. 16^th September, 2004, a substantive appeal, challenging ex parte decree was filed in the lower appellate Court. However, there was a delay in filing the said substantive appeal. Accordingly, Civil Misc. Application No.101/2004, seeking condonation of delay in filing this appeal came to be filed. Both the matters were allotted to the learned District Judge, Margao. However, the learned District Judge took up Civil

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Misc. Application No.101/2004 for hearing and kept Misc. Civil Appeal No.71/2004 pending. By the impugned Judgment dated 26^th April, 2007, the said Civil Misc. Application No.101/2004, seeking condonation of delay in filing the substantive first appeal before the lower Appellate Court, came be to rejected.

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Against this rejection, the appellant before me had filed Writ Petition under Article 227 of the Constitution of India, being Writ Petition No. 381/2007 in this Court.

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Thereafter, Miscellaneous Civil Appeal No.71 of 2004

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was taken up and the learned District Judge dismissed it by her Order dated 22^nd April, 2008. Aggrieved by the dismissal of that application, Writ Petition No.372/2008 was filed in this Court.

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It is common ground that both these writ petitions were placed for admission before the learned Single Judge of this Court. By his order dated 18^th October, 2010, learned Single Judge of this Court held that as far as the order passed by the lower Appellate Court on 26^th April, 2007 is concerned, dismissal of the Civil Miscellaneous

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Application No.101 of 2004 amounts to a decree inasmuch as by the said order the substantive first appeal has been dismissed. That substantive first appeal impugns and challenges the Decree of the Trial Court dated 26^th August, 2003. Since dismissal of the application for condonation of delay in filing the substantive first appeal confirms the decree of the trial Court, the order of the lower Appellate Court would amount to a decree, which will be an appellate Decree and, therefore, a second appeal would be maintainable. Observing thus, the learned Single Judge dismissed Writ Petition No.381/2007.

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In so far as Writ Petition No.372/2008 is concerned, that was directed against the order of the lower Appellate Court in Misc. Civil Appeal No.71/2004, passed on an application under Order IX, Rule 13 CPC of the present appellant/original defendant No.1(c) to set aside the ex-parte decree of the Trial Court. That order has been not interfered with by the leaned Single Judge on the ground that a party can simultaneously file an application under Order IX, Rule 13 CPC and an appeal against ex parte decree under Section 96(2) of CPC. However, if an appeal under Section 96(2) of CPC is dismissed, in the light of the explanation to Order IX, Rule 13 CPC, which is to be

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strictly construed, an Appeal would not be maintainable to challenge the order passed, dismissing an application to set aside the ex parte Decree, although the converse is not true. Therefore, the Judgment of the Supreme Court which was relied upon, viz. Bhanu Kumar Jain vs. Archana Kumar and another , reported in (2005) 1 SCC 787 and other judgments noted by the learned Single Judge, would not assist the present appellant/petitioner in Writ Petition No.373/2008. However, holding that a second appeal along with application seeking condonation of delay has already been filed, then, it is a correct remedy which has been resorted to. Concluding thus, both the writ petitions came to be dismissed.

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This is how the second appeal, after condonation of delay in filing the same, has been placed for admission before me.

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Mr. Dessai, learned Senior Counsel, appearing on behalf of the appellant, submits that the lower Appellate Court has committed a grave error of law in dismissing the Civil Misc. Application No. 101/2004, seeking condonation of delay in filing the substantive appeal under Section 96(2) CPC to impugn and challenge the decree of the

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Trial Court dated 26^th August, 2003 in Regular Civil Suit No.21/1985.

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The result of such dismissal and relying upon the principle that the appeal itself is not maintainable, is a grave travesty of justice. The appellant now has no opportunity to impugn and challenge the decree of the Trial Court, on merits. By some hyper-technical view and complete misreading of the relevant provisions of law, the lower Appellate Court proceeded to dismiss the first appeal. The condonation of delay was sought on the ground that the appellant, under legal advice, chose to first make an application to set aside the Trial Court's ex parte Decree by invoking Order IX, Rule 13 CPC in that behalf. That Civil Misc. Application came to be dismissed by the Trial Court on 7^th August, 2004. Against that dismissal, the appellant was advised to avail of two remedies. He was also advised to challenge this order by way of an appeal under Order XLIII, Rule 1 CPC., which was invoked by him by filing Misc. Civil Appeal 71/2004. That was filed on 16^th September, 2004. At the same time, he was advised to file a substantive first appeal by invoking Section 96 (2) CPC to challenge the ex parte decree of the Trial Court, on merits. That he did by the instant first appeal. However, finding that there was a delay of 386 days in filing the said appeal, that he filed an

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application seeking condonation of delay, viz. Civil Misc. Application No.101/2004. That application has been dismissed by the impugned order and which, therefore, amounts to a decree.

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Mr. Dessai submits that once it is the settled position that

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the order of the trial Court amounts to a decree and the second appeal would be maintainable, then, all that he is required to satisfy this Court is that this second appeal gives rise to substantial questions of law. In his submission, the substantial question of law is that the lower Appellate Court has completely misconstrued and misread Order IX, Rule 13 CPC and the explanation below the same. That explanation will have no application to the remedies of appeal. If the Trial Court's ex parte decree can be challenged by filing an appeal that would be a challenge to the decree on merits. The decree can be set side by filing application to set aside the ex parte decree before the Trial Court and that application is made to the lower Court. However, the explanation below Order IX, Rule 13 of CPC, prohibits availing of twin remedies. If one, namely filing of an appeal to challenge the decree on merits is chosen and availed of, then, the second one of approaching the trial Court is not available. Beyond this, the

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explanation says nothing. How this explanation could be invoked when the request is to condone the delay in filing the substantive first appeal before the lower Appellate Court has not been explained by the learned Judge at all. The learned Judge had before her a simple application, seeking condonation of delay in filing the first appeal under Section 96(2) of CPC., to challenge the ex parte decree of the Trial Court on merits. Her plain duty was to consider as to whether the appellant has made out sufficient cause to condone the delay or not. That she does not hold otherwise, but, yet, she proceeds to dismiss the appeal on the specious ground that the principle enshrined in the Explanation to Order IX, Rule 13 CPC would hold good, is a grave error of law.

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Mr. Dessai has taken me through the order of the lower Appellate Court and particularly the findings in para 14 and submitted that the learned Judge was aware that Misc. Civil Appeal No. 71/2004, challenging the refusal of the Trial Court to set aside its ex parte decree was pending. Prior there to the substantive appeal was taken up inasmuch as by placing on Board the application seeking condonation of delay in filing the same. In that situation, how this application

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seeking condonation of delay is not maintainable, has not been clarified and explained at all. There is a complete non-application of mind. There is complete confusion and chaos inasmuch as Order IX, Rule 13 CPC would disable the appellant to go back to the trial Court and seek setting aside of the decree passed exparte, because a substantive appeal is filed. That provision has no application to the power of the Appellate Court to set aside the decree, as also distinct power under Order XLIII, Rule 1 CPC. There is no provision in law, if one peruses Order XLIII, Rule 1 to file an appeal against the order of the Trial Court refusing to set aside an ex parte decree and an appeal under Section 96(2) of CPC to challenge that ex parte decree on merits and one must not survive if the other is dismissed. One is scrutiny of the order passed refusing to set aside the ex parte decree; whereas the another is a substantive power to scrutinize the decree, on merits. The confusion in the mind of the learned lower Appellate Judge has resulted in grave miscarriage of justice, according to Mr. Dessai.

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On the other hand, Mr. Diniz, learned Counsel appearing on behalf of respondents No.1 to 4-original plaintiffs to the suit, would submit that there is no substantial question of law arising for

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determination and consideration of this Court. This is nothing but repetition of the same pleas as were raised in the writ petition. Once the writ petition to challenge the order passed on 26^th April, 2007 is dismissed and even another writ petition being Writ Petition No. 372/2008, challenging the order dated 22^nd April, 2008 is dismissed, then, this Court cannot entertain this second appeal. Entertaining this second appeal would mean the same factual observations and findings would be reopened which are concluded by the orders passed by the lower Appellate Court on 26^th April, 2007 and 22^nd April, 2008. The appellant now cannot urge that he is prejudiced, much less there is any miscarriage of justice, because of the lower Appellate Court's refusal to condone the delay in filing the substantive first appeal or refusing to interfere in the order of the trial Court passed under Order IX, Rule 13 CPC., dated 7^th August, 2004. Even, otherwise, none of the grounds set out in the memo of appeal and, particularly grounds 1 to 10 in the Memo of Appeal in this second appeal, so also the additional grounds at page 71 of the paper book would make out any substantial question of law. Mr. Diniz would submit that this is nothing, but an attempt to reopen the concluded issue as to whether about refusal to exercise a discretion in condoning the delay. That discretion has not been

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exercised in favour of the appellant for good reasons. There is nothing in the order of the lower Appellate Court dated 26^th April, 2007 which would make it erroneous, much less perverse or contrary to law. That order envisages that the lower Appellate Court is refusing to uphold the submission that sufficient cause is made out for condoning the delay. Whether there is sufficient cause for condoning the delay and explanation in that behalf is reasonable or not, is essentially a factual matter and no question of law, much less substantial question of law would arise from such an exercise. For all these reasons, according to Mr. Diniz, there is no merit in this second appeal and the same deserves to be dismissed.

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Both sides have relied upon the same decisions which have been relied upon before Brother Justice A. P. Lavande, when he delivered the Order dated 18^th October, 2010 in the two writ petitions.

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My endeavour is to find out as to whether any of the principles that have been pressed into service by the learned lower Appellate Court while refusing to condone the delay could be said to be attracted and applied to the present case.

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To my mind, this second appeal gives rise to the the substantial questions of law. Hence, appeal admitted on the following substantial questions of law :

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(A) Whether the lower Appellate Court has erred in law in dismissing the application to condone the delay in filing an appeal under Section 96 of CPC, challenging the ex parte decree of the Trial Court on merits on the ground that the appeal before it, as also the challenge to the order in another appeal to the refusal to set aside the ex parte decree of the Trial Court made on application under Order IX, Rule 13 CPC by invoking the Order 43, Rule 1 CPC cannot lie or will not be maintainable simultaneously ?

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(B) Whether dismissal of the application to condone the delay in filing an Appeal under Section 96(2) of CPC is permissible on the ground that another Appeal under Order XLIII, Rule 1 of CPC against the order of the Trial Court under Order IX, Rule 13 of CPC is pending ?

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(C) Whether there is any principle of law which would enable the lower Appellate Court to refuse to condone the delay on the above ground ?

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(D) Whether the Explanation below Order IX, Rule 13 CPC., would at all be applicable in exercise of the appellate powers, in particular, in relation to condoning the delay in filing an appeal challenging the ex parte decree of the Trial Court, on merits ?

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(E) Whether two appeals, as noted above, are permissible or prohibited by law ?

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Mr. Diniz waives service for respondents No.1 to 4. By consent of the parties, heard forthwith.

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The instant application, on which the order dated 26^th April, 2007 has been passed, seeks condonation of delay in filing an appeal under Section 96(2) of CPC to challenge the ex parte decree of the Trial Court dated 26^th August, 2003 on merits. That a refusal to condone the delay would affirm the trial Court Decree and, therefore, the decree of the lower Appellate Court would be amenable to challenge under Section 100 of CPC., is no longer an issue which must detain me in view of the observations and conclusions of the Brother Mr. Justice Lavande while disposing of the Writ Petition No. 381/2007. That such an order amounts to a decree of the lower Appellate Court. Therefore, the second appeal would be maintainable is the conceded

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position.

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Now, what remains for consideration is as to how the lower Appellate Court has approached the application seeking condonation of 386 days in filing an appeal under Section 96 CPC.. That appeal was filed by the present appellant-original defendant No.1(c) to challenge the ex parte decree of the trial Court dated 26^th August, 2003, admittedly, on merits.

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In that application seeking condonation of delay, what the appellant stated was that he came to know in September, 2003 that the suit was decreed and after obtaining a certified copy of the Judgment and Decree of the trial Court, he filed Civil Misc. Application No.28/03/II on 25^th September, 2003, seeking to set aside the ex parte Decree. That application was dismissed by the Trial Court by an Order dated 7^th August, 2004. He was bonafide pursuing the said remedy and was advised that if the order in the said Civil Misc. Application No.28/03/II goes against him, he will have to file appropriate proceedings in appropriate appellate Court and, hence he did not file a substantive appeal during the pendency of Civil Misc. Application

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No.28/03/II. After he obtained the certified copy of the Order dated 7^th August, 2004, he was advised by the Advocate appearing on his behalf in Civil Misc. Application No.28/03 that the matter should be handed over to a different Lawyer to file further proceedings and, accordingly, he met the present Lawyer on or about 21^st August, 2004. That the present Lawyer called him on 14^th September, 2004 to prepare the appeal to be filed against the order dated 7^th August, 2004. When he approached the present Lawyer on 14^th September, 2004, he was advised that an application to condone the delay caused in filing the substantive appeal under Section 96(2) of CPC and register it, should be presented to the lower Appellate Court.

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Not only did the applicant filed an affidavit in support of the statements made in the Civil Misc. Application No.101/2004 before the lower Appellate Court, but he also filed an affidavit of Advocate Shri S. M. Tendulkar.

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The present respondent No.1, while contesting this application, argued that the appeal is not maintainable in law since the application filed by the applicant under Order IX, Rule 13 of CPC to

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set aside the decree passed by the learned Civil Judge, Jr. Division, Margao was dismissed and hence, the question of preferring an appeal against the decree by invoking Section 96(2) of CPC does not arise at all. Since the appeal itself is not maintainable, the question of considering the application for condonation of delay does not arise at all. It was next stated in the reply that the present appellant has been unnecessarily delaying the proceedings before the learned Trial Judge. That the defendants were never personally present before the learned trial Judge and that they used to appoint an attorney to appear in their behalf. Advocate for the defendants also seldom used to appear in the matter. Ultimately, the learned Trial Judge, after giving numerous opportunities, passed the ex parte Judgment and Decree. The conduct is, therefore, such that the appellant is not entitled to any indulgence or accommodation. Thus, he is not entitled to any discretionary and equitable relief.

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The learned Judge, on these pleas, has framed the necessary point for determination and that is, whether the applicant has made out a sufficient cause for not preferring the appeal against judgment/decree dated 26.8.2003 in Regular Civil Suit no.21/1985/C

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within the period prescribed by law.

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While assigning reasons, the learned Judge has adverted to the cause shown for the delay of 386 days. That she adverted to the same, is apparent from reading para 8 of the impugned order. Then she takes note of the submissions of the Senior Counsel appearing on behalf of the appellant that the expression 'sufficient cause' which is used in Section 5 of the Limitation Act, 1963 should be construed with a justice oriented and pragmatic approach and in a liberal manner. This is apparent from reading of para 9 of the order.

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In para 10, the learned Judge says that there is no quarrel with the proposition of law envisaged in the judgments relied upon by the learned Senior Counsel. However, the learned Appellate Judge then refers to the judgment in the case of M/s. Roshanaily and Co. vs. Mrs. Janki Narayandas Mudnaney and ors., reported in AIR 1991 Bombay 391 which is relied upon by the learned Advocate appearing on behalf of the original plaintiff/respondent no.1 to the first appeal to contend that the delay should not be condoned if the party is not diligent in pursuing the remedy. Then the reliance was placed on the Judgment of

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the Supreme Court in the case of Bhanu Kumar Jain vs. Archana Kumar and another, reported in AIR 2005 SC 626, contending that when an exparte decree is passed, the defendant has two options, one to file an appeal and another to file an application for setting aside orders in terms of Order IX, Rule 13 CPC and that the defendant can take recourse to both the proceedings, simultaneously.

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In para 11, the learned Judge applies that principle and observes and holds that the law does not prevent a party who claims that Court has passed an ex parte judgment and decree against him, from filing an application to set aside the said ex parte judgment and decree and simultaneously to prefer an appeal against the said judgment and decree. This is what is observed in paras 11 and 12 :

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“ 11. Apparently, law does not prevent the party who claims that Court has passed an ex parte judgment and decree against him, from filing an application to set aside the said exparte judgment and decree and simultaneously to prefer an appeal against the said judgment and decree. No doubt, in the application at hand, it is stated by the applicant that he was advised that if the order in Civil Miscellaneous Application no.28/2003/II goes against him, he will have to file

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appropriate proceedings in appropriate Court however, in his affidavit by Advocate Shri S.M. Tendulkar who was dealing with the matter at the time of disposal of Civil Miscellaneous Application no.28/2003/II, it is stated that after the judgment and decree was passed in Regular Civil Suit No.21/85, the applicant contacted him and in good faith he advised the applicant to file an application to set aside the said judgment and decree and to allow to cross examine the witnesses of the plaintiffs in the suit and to lead evidence on behalf of the defendants. Interestingly, no where in his affidavit Adv. Shri S.M. Tendulkar has stated that he had advised the applicant that in case the order in Civil Miscellaneous Application no. 28/2003/II goes against him he will have to file appropriate proceedings in an appropriate Court. This being the case, the contention of the applicant that he was advised as above (irrespective of the fact that applicant has not disclosed the name of the person who advised him so) cannot be believed.

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Coming to the applicability of Section 14 of the Limitation Act, it has been rightly pointed out by the Ld. Advocate for the respondents that under this Section, the party can avail of the benefit of exclusion of time in case of only those proceedings which he was bonafidely pursuing in the Court having no jurisdiction.

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No doubt, Ld. Counsel for the applicant referring to this Section stated that it applies even to the proceedings of “other cause of alike nature” and that the application of the applicant comes under the said expression “other cause of alike nature” but it is noted that the expression “other cause of alike nature” has to be read “ejusdem generis” with the expression “defect of jurisdiction” which in other words means the same is limited to the same category or genus comprehended by the particular words. In the case at hand, it is not the case of the applicant that Civil Miscellaneous Application no. 28/2003/II was dismissed by the Trial Court for want of jurisdiction or for a cause of like nature and on the contrary, records reveal that order dated 7.8.2004 vide which the above Civil Miscellaneous Application was dismissed is passed on the merits of the case. This being the case, I am in agreement with the Ld. Advocate for the respondents that appellant cannot avail of the benefit under Section 14 of the Limitation Act.”

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29.

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In para para 13, the learned Judge holds thus :

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“13. Be that as it may, Ld. Advocate for respondents inviting my attention to the observations in the judgment in AIR 2005 Supreme Court 626 (supra) stated that when the application under Order IX rule

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13 CPC gets dismissed first, the doctrine of 'issue estoppel' so also “cause of action estoppel” may arise and hence, when an application under Order IX rule 13 CPC is dismissed, the defendant can only avail of the remedy available there against viz. to prefer an appeal in terms of Order 43, rule 1 CPC. Thus, according to him, the appeal (which is sought to be registered after condoning the delay) is by itself not maintainable and therefore, the question of condoning the delay in filing such an appeal does not arise. I find force in the above submissions of Ld. Advocate for the respondents and this is because since it is clear from the above reported judgment that upon dismissal of application under Order IX rule 13 CPC, the only remedy available to the defendant is to prefer an appeal against the order passed on such application, it is not open to the applicant herein to prefer appeal against the judgment and decree in Regular Civil Suit No.21/85/C. Reliance is also placed on the judgment in Jokam Reddy and others vs. Kokar Malliah (AIR 1976 Andhra Pradesh 399), wherein it is held that when the petitioners choose to file application under Order IX Rule 13 CPC for setting aside the ex-parte decree, the time spent in prosecuting the application cannot be deducted under Section 5 from the time allowed in filing the appeal. It is further observed in

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this judgment that the petitioners cannot be permitted under law to say that delay was caused on account of their pursuing legal remedies available to them under law and that there was no negligence on their part, as recourse to proceeding taken by them in Order IX rule 13 CPC for setting aside the ex decree does not construe sufficient cause as contemplated by Section 5 of the Limitation Act.”

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Having perused the entire order, I find apparent inconsistency therein. If the appellant-original defendant No.1(c) could avail of plural or both the remedies, viz. the one to challenge the ex parte judgment and decree of the Trial Court on merits and also make an application under Order IX, Rule 13 CPC to the Trial Court to set aside the same and the law does not prevent the litigant from adopting such a course, then, on the plain reasoning in para 11, the objections of the respondents as noted in para 13 of the impugned order could not have been upheld.

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That apart, how the appeal being not maintainable or the objection in that behalf preventing the learned Judge from exercising her discretionary power in condoning the delay in filing an appeal

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under Section 96(2) of CPC, is something which has not been explained at all. If that course is impermissible in law, that should have been adverted to. The law that is adverted to is Order IX, Rule 13 CPC. That is, according to the learned Judge permitting the defendant who is aggrieved by an ex parte decree to only prefer an appeal against the order passed refusing an application to set aside the ex parte Decree and it is not open for him to prefer an appeal against the judgment and decree, on merits. She does not explain as to how Order IX Rule 13 would govern the exercise of statutory power that is invoked by the aggrieved defendant. Pertinently, she has stated in her conclusion rendered in para 11 that plural remedy can be resorted to. If that be the case, to hold that time spent in prosecuting the application under Order IX, Rule 13 CPC cannot be deducted while considering the application seeking condonation of delay in filing an appeal under Section 96(2) of CPC is contrary to law. That apart, this time was never sought to be excluded in the instant case. What the application of the appellants-applicants is referring to are the events transpiring post rejection of the application under Order IX, Rule 13 of CPC by the Trial Court on 7^th August, 2004. It is in such circumstances that the reliance placed on the decisions of the Supreme

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Court in the case of Bhanu Kumar Jain vs. Archana Kumar and another, (supra) and in the case of Jokam Reddy and others vs. Kokar Malliah reported in AIR 1976 AP 299 are entirely misplaced.

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To top it all, in para 14 of the impugned order, the learned Judge observes that the appeal against the order dated 7^th August, 2004 refusing to set aside the ex parte decree passed by the Trial Court being Misc. Civil Appeal No. 71/2004 is still pending. Therefore, in such a situation, the application to condone the delay in filing a substantive appeal under Section 96(2) cannot be condoned and such an application is not maintainable. Once again there is no reference, leave alone adherence to any legal provision, while rendering such a conclusion.

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A reading of Paragraph 15 of the impugned order would show that the learned Judge was aware that the applicant was seeking condonation of delay in filing an appeal, challenging the ex parte decree of the Trial Court, on merits. She adverted to that fact and the cause which is stated to be sufficient by the appellant-applicant, but observing that when the applicant had obtained the certified copy of

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the impugned Judgment and Decree before filing Civil Misc. Application No.28/200/II, then his statement that he obtained the certified copy of the Judgment and Decree in order to file a fresh appeal does not inspire confidence. The learned Judge lost sight of the fact that the appellant-applicant was seeking condonation of delay in filing the instant appeal not on the ground that he was not in possession of the certified copy of the judgment and decree, but on the ground of legal advice that he was tendered and given by his lawyer, namely, to challenge the ex parte decree of the trial Court on merits, as also by applying to the Appellate Court that the order passed on 7^th August, 2004 on the application made under Order IX, Rule 13 of the Code of Civil Procedure, be set aside. That he has a remedy under Order IX, Rule 13 of CPC and also to file an appeal under Section 96(2) of CPC is admitted by the lower Appellate Court. However, she does not advert to the cause shown as sufficient and possibly completely lost sight of the contents of the application seeking condonation of delay.

¶113

In such circumstances, her findings in para 16 that the appellant-applicant was not diligent in pursuing the remedy and that he

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failed to make out a sufficient cause for condoning the delay in preferring an appeal within the prescribed period are, without in any manner, adverting to the cause that was shown in the contents of the application. In this behalf, a reference can be made to Section 96(2) of CPC which reads as under :-

¶116

“ 96. Appeal from original decree. - (1) … (2) An appeal may lie from an original decree passed ex parte .”

¶117

A bare perusal of the provision would indicate that whilst an appeal under Section 96(1) of CPC is as a matter of right, an Appeal under Section 96(2) may lie from an original decree passed ex parte. This is because of the wording in Section 104 and Order XLIII of the CPC which deals with Appeals from Orders. Thereunder an appeal is provided as of right by Section 104 to challenge an order of the trial Court, refusing to set aside an ex parte Decree [see order XLIII, Rule 1(d)]. If the original ex parte Decree is appealable and that is not set aside, then, litigants have a right to challenge that order of the Trial Court by invoking this provision. However, once that is invoked and exhausted, then, the other provided by Section 96(2) of CPC may not be available. However, all this has some bearing on the maintainability

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of the appeals. How that can have any impact on the tenability of an application to condone the delay in filing an Appeal under Section 96(2) of CPC has not been elaborated at all by the Lower Appellate Court. Pendency of an Appeal under section 104, read with Order XLIII, Rule 1(d) of CPC cannot be a bar to condone the delay in filing the appeal under Section 96(2) of CPC. At least, no law or legal principle carving out such a bar or prohibition is shown to me. It also does not appear logical because delay may be condoned even if the Appeal is not maintainable otherwise. The discretionary power to condone the delay under Section 5 of Limitation Act, 1963 is not taken away assuming that the proceedings are not maintainable.

¶120

The learned Judge has, thus, committed a grave error of law, resulting in the appellant-applicant being without any remedy to challenge the decree of the Trial Court, on merits. On the date on which the impugned order was made, the learned Judge did not decide the Miscellaneous Civil Appeal No. 71/2004, admittedly. If that was so, there is nothing in law which prevented the learned Judge from dealing with the application made for condonation of delay in filing a distinct appeal under Section 96(2) of CPC, on its own merits, and in

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accordance with law. The learned Judge was aware of her powers to condone the delay. The pendency of another appeal, has been held to be a bar going by the reasoning in para 14 of the impugned order. But, that reasoning has to have some basis or support in law. No legal provision, whether under Section 96 of CPC or Order XLIII of CPC has been brought to my notice which would support the conclusion in para 14 of the impugned order.

¶123

All the submissions that have been canvassed before me

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by the learned Counsel were on the basis that the Explanation below Order IX, Rule 13 CPC would be attracted and what would be its extent and scope. After having come to the conclusion that for the same have to be attracted, their applicability to appellate powers and the procedure in relation thereto has to be established. But which has not been demonstrated and proved, then, the reliance on the said explanation cannot be of any assistance. More so, in the light of the orders passed in the writ petitions between the same parties and holding that the subject order as impugned in this appeal partakes the character of a decree of the appellate Court and the second appeal being the remedy to challenge it, then, I need not advert to any of the

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decisions brought to my notice.

¶127

In the light of the above discussion, the substantial questions of law framed by me above have to be answered, in so far as questions (A) to (E) in the aforesaid terms, in the affirmative.

¶128

After having concluded thus and finding that the impugned order is clearly unsustainable in law, this second appeal succeeds and the order dated 26^th April, 2007 in Civil Misc. Application No.101/2004 would be required to be quashed and set aside. The course, thereafter, that is open for me is to send the application under Section 5 of the Limitation Act, 1963 back to the file of the lower Appellate Court for deciding it afresh, on merits and in accordance with law. However, that would only prolong their agony and would cause inconvenience to the parties. Ultimately, procedural laws are intended to render justice and that too cheaper and expeditious. Therefore, I requested Mr. Diniz appearing on behalf respondents no.1 to 4-original plaintiffs who are the real opponents as

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to whether Civil Misc. Application No.101 of 2004 itself can be allowed by condoning the delay on the basis that sufficient cause is

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made out in filing the substantive appeal to challenge the Trial Court's ex parte Decree on merits. In all fairness Mr. Diniz took instructions from respondent No.4 who is present in the Court and makes a statement that if this Court is of the opinion that sufficient cause has been made out for condoning the delay in filing the substantive appeal to challenge the Trial Court's Decree on merits, then, this Court may do so, but with appropriate conditions and a clarification that the order passed by the Trial Court on 7^th August, 2004, dismissing the application under Order IX, Rule 13 of CPC., should not be permitted to be questioned before the Appellate Court. Equally, the appellant should not be permitted to argue that the trial Court ought not to have proceeded exparte.

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Mr. Dessai, learned Senior Counsel has no objection to the above course and the clarification as sought being given.

¶133

In the result, I hold that the contents of the application, viz. Civil Miscellaneous Application No. 101/2004 would make out the sufficient cause for condoning the delay in filing the first appeal. The explanation for the same is reasonable and bonafide. Ultimately, it is

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on account of the legal advice that the appellant-original defendant No.(c) was prevented from filing the appeal in time. That differing legal advice could be a sufficient cause, in a given case and the Appellant's conduct otherwise bonafide. For such reasons, the delay in filing the first appeal is condoned. However, the appellant/defendant No.1(c) to pay costs, quantified at Rs.5000/- which would be condition precedent and to be paid to respondents No.1 to 4 in one set, within a period of four weeks from today. On proof of payment of costs being produced, the lower Appellate Court to register the appeal as First Appeal, challenging the decree of the Trial Court on merits. The order of the lower Appellate Court dismissing the Miscellaneous Civil Appeal No.71/2004 is final and, therefore, that cannot be interfered with in law. In such circumstances, the appeal that would survive on the files of the lower Appellate Court would be an appeal which would entitle the appellant/original defendant No.1(c) to question and impugn the decree of the Trial Court on merits. While arguing such appeal, it would not be open for the appellant herein to urge that the Trial Court should not have proceeded ex parte or that its decision to proceed ex parte is not sound or valid in law. No such contentions would be entertained by the lower Appellate Court. A

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scrutiny of the Decree passed by the lower Appellate Court, on merits, alone would be undertaken and all contentions of both sides in relation thereto are kept open and shall not be taken to have concluded by this or earlier Orders. This order only sets right the erroneous course adopted by the lower Appellate Court in law and beyond that nothing has been observed on merits.

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If the costs are paid, both the parties to appear before the lower Appellate Court on 2^nd April, 2012 at 10.00 a.m. The lower Appellate Court to deal with the appeal, after registering it, in accordance with law, as directed above and endeavour to dispose it of as expeditiously as possible, and within a period of three months from the date of its registration.

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S.C. DHARMADHIKARI, J.

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ssm.

Mr. Suresh G. Ramani through Attorney Rekha Gawri v. Mrs. Aurelia Ana Da Piedade Miranda Alias Araiyo Alvares (Dec) through Lr'S and 3 Ors.

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Mr. Suresh G. Ramani through Attorney Rekha Gawri v. Mrs. Aurelia Ana Da Piedade Miranda Alias Araiyo Alvares (Dec) through Lr'S and 3 Ors.

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