The Hon’ble Supreme Court, on 7th May 2019, in the matter of Bhivchandra Shankar More v. Balu Gangaram More and Ors.observed that pursuing remedy under Order IX Rule 13 CPC does not prohibit filing an appeal under Section 96(2) of the CPC if the application under Order IX Rule 13 CPC is dismissed.
The Hon’ble Supreme Court observed that:
(Para 10) A conjoint reading of Order IX Rule 13 CPC and Section 96(2) 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 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-partedecree on merits.
The scope of Order IX Rule 13 CPC and Section 96(2) CPC are entirely different. (Para 11)
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 “sufficient cause”, the court may set aside the ex- parte decree and restore the suit to its original position. (Para 11)
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. (Para 11)
Pursuing remedy under Order IX Rule 13 CPC does not prohibit filing an appeal if the application under Order IX Rule 13 CPC is dismissed. (This inference has been drawn on the basis of Para 11)
The right of appeal under Section 96(2) CPC is a statutory right and one cannot be deprived of the statutory right of appeal merely on the ground that the application filed under Order IX Rule 13 CPC has been dismissed. (This inference has been drawn on the basis of Para 12)
“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. (Para 14)
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)
“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)
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. (Para 16)
Copy of judgement: Judgement_07-May-2019