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2004(8) Supreme 330
SUPREME COURT OF INDIA
(From Calcutta High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
Shyam Sundar Sarma -Appellant
versus
Pannalal Jaiswal & Ors. -Respondents
Civil Appeal No. 5550 of 2004
Decided on 4-11-2004
Counsel for the Parties :
For the Appellant : Ranjit Kumar, Sr. Advocate, Manoj, K. Mishra, Sanjay Visen, Shukanta Banerjee and N.S. Bisht, Advocates.
For the Respondents : M.N. Krishnamani, Sr. Advocate, Rajeev Sharma, Ms. Neelam Sharma, Ajay Sharma, Tarun Sharma and Tara Chand Sharma, Advocates.
Held : This Court held that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and had been disposed of on any ground, the application under Order IX Rule 13 of the Code would not lie and should not be entertained. Hence, even though the appeal against the ex parte decree was disposed of on the ground of limitation and not on merits, the explanation to Order IX Rule 13 of the Code was attracted and hence no petition under Order IX Rule 13 of the Code would lie. On the scope of the explanation, it was stated that the disposal of the appeal as contemplated in the explanation was not intended to mean or imply a disposal on merits resulting in the merger of the decree of the trial court with a decree, if any, of the appellate court on the disposal of the appeal. The disposal of the appeal may be on any ground and though the withdrawal of an appeal by an appellant is also to be considered a disposal of the appeal, the same has been expressly exempted by the explanation. It was also observed that the legislative intent incorporated in the explanation to Order IX Rule 13 of the Code was to confine the defendant to a single course of action and to discourage the prolonging of the litigation on the ex parte decree, namely, by preferring an application to the trial court under Order IX Rule 13 of the Code for setting aside the decree and by filing an appeal to a superior court against it. If he did not withdraw the appeal filed by him or allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Order IX Rule 13 of the Code. The Court also clarified that by the introduction of the explanation, the area of operation of the doctrine of merger was enormously extended. By virtue of the explanation, the disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation. In the light of this, it was held that though in that case the appeal filed by the husband against the ex parte decree was dismissed on the ground of it being barred by limitation, it was a disposal of the appeal and the petition under Order IX Rule 13 of the Code was hit by the explanation. (Para 13)
Thus, in the case on hand we find that the trial court, the appellate court and the High Court have rightly held that the petition under Order IX Rule 13 of the Code would not lie in view of the filing of an appeal against the decree by the appellant and the dismissal of the appeal though for default, since a dismissal for default or on the ground of it being barred by limitation cannot be equated with a withdrawal of the appeal. Consequently, the decision of the High Court is affirmed and this appeal is dismissed. (Para 16)
Key Points: - The judgment discusses the bar created by the explanation to Order IX Rule 13 of the Code and its application when an appeal against an ex parte decree has been disposed of on any ground other than withdrawal (limitation/default) (!) (!) (!) (!) (!) . - It holds that if an appeal against an ex parte decree has not been withdrawn and is disposed of on any ground, the petition under Order IX Rule 13 would not lie (!) . - It clarifies that disposal of the appeal may be on any ground and withdrawal is explicitly exempted from the bar; thus even dismissal for default or due to limitation can trigger the explanation's effect, preventing a petition under Order IX Rule 13 (!) (!) (!) (!) . - The court emphasizes the legislative intent to prevent prolonged litigation after an ex parte decree by restricting subsequent applications to set aside the decree when an appeal exists but is disposed of (not withdrawn) (!) (!) . - The decision affirms that the petition under Order IX Rule 13 would be barred in such circumstances, and the remedy is foreclosed thereby upholding the appellate disposal as operative (!) . - It discusses interpretation of what constitutes an appeal in law when combined with delay condonation applications and their impact on finality of the decree (!) (!) . - The conclusions apply consistently to similar factual patterns where an appeal is pending or disposed of, affecting subsequent applications under Order IX Rule 13 (!) (!) (!) .
JUDGMENT
P.K. Balasubramanyan, J.-Respondent No. 1 herein filed Title Suit No. 89 of 1992 on the file of the Munsif s Court at Howrah against the appellant and others for a declaration of his title as a Thika Tenant in respect of the plaint A schedule property and for other consequential reliefs. The appellant herein- defendant No. 1 in the suit, entered appearance and contested the suit and the application for interim injunction filed by the plaintiff. The application for interim injunction was heard and the same was dismissed by the trial Court. The plaintiff filed an appeal against that order under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short "the Code") and that appeal was also dismissed by the District Judge on 16.3.1994.
2. The suit itself stood posted to 8.10.1996. The appellant - the first defendant, did not appear. The evidence of the plaintiff was recorded. On 9.10.1996 the plaintiff filed two applications - one for an amendment of the plaint and the other for certain corrections in the plaint. Those applications were allowed the same day in the absence of any opposition. In view of his absence, the first defendant, the appellant, was set ex parte and on 11.10.1996, the suit was decreed ex parte.
3. On 16.11.1996, the first defendant, the appellant, filed a petition under Order IX Rule 13 of the Code accompanied by an application under Section 5 of the Limitation Act for condoning the delay in filing the petition for setting aside the ex parte decree. Both the applications were opposed by the plaintiff. On 21.11.1996, the first defendant - the appellant, also filed an appeal, Title Appeal No. 157 of 1996, against the ex parte decree along with an application for condoning the delay in filing that appeal as enjoined by Order XLI Rule 3A of the Code and invoking Section 5 of the Limitation Act. On 17.9.1998, the trial Court allowed the application filed by the first defendant under Section 5 of the Limitation Act and condoned the delay in filing the petition under Order IX Rule 13 of the Code. The plaintiff challenged that order in the District Court in revision, but the revision was dismissed on 11.8.2000. There was a further revision to the High Court which was dismissed on 14.9.2000.
4. On 21.1.2000, since the first defendant - the appellant, did not appear to prosecute his application under Section 5 of the Limitation Act in Title Appeal No. 157 of 1996, his appeal against the ex parte decree, the District Court dismissed that application for non taking of steps, resulting in default. On 6.3.2000, in view of the non appearance of the first defendant - the appellant, Title Appeal No. 157 of 1996 against the ex parte decree itself was dismissed for default. In other words, both the application under Section 5 of the Act for condoning the delay in filing that appeal and the appeal against the ex parte decree filed by the first defendant stood dismissed for default.
5. In the trial court, the petition for setting aside the ex parte decree filed under Order IX Rule 13 of the Code came up for hearing. On behalf of the plaintiff, an objection was raised that in view of the filing of Title Appeal No. 157 of 1996 by the first defendant against the ex parte decree and in view of the explanation to Order IX Rule 13 of the Code, the application under Order IX Rule 13 of the Code could not be entertained by the court which had passed the ex parte decree. On behalf of the first defendant - the appellant, it was contended that since the appeal filed by the appellant against the ex parte decree was dismissed for default as a consequence of the dismissal of the application for condoning the delay in filing that appeal being dismissal for default, the explanation created no bar to the entertaining of the petition under Order IX Rule 13 of the Code, especially in the context of the fact that the delay in filing that petition had already been condoned by the trial Court and affirmed up to the High Court. But, the tri
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