Vasantdada Shetkari Sahakari Sakhar Karkhana Ltd. vs B. B. Consulting N Engineering Pvt. Ltd. Co. & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(Bom) 932

IN THE HIGH COURT OF BOMBAY
V.C. Daga, J.
Vasantdada Shetkari Sahakari Sakhar Karkhana Limited.... Petitioner.
Versus
B.B. Consulting ’N’ Engineering Pvt. Ltd. Co. others.... Respondents.
Civil Revision Application No. 1198 of 2000, decided on 12-12-2000.
Advocates appeared :
M.M. Sakhardande with S.G. Page, for the petitioner.
V.A. Thorat i/b. N.N. Vaishnava Co., for respondent No. 1.
A.K. Abhyankar i/b. A.V. Jain and Associates, for respondent No. 2.

Headnote:Section 115, Order IX, Rule 13, Expl. II-Ex parte decree sought to be set aside-Maintainability of application-In meantime party filed appeal and gone upto supreme court where it failed-Contention application under Order IX, Rule 13, CPC was independent of appeal and could be decided separately without any interference by revisional court-Held-Court did not have power to set aside ex parte decree against which an appeal bad been filed and was dismissed otherwise than a withdrawal.-Order IX, Rule 13 of CPC makes provisions for selling aside ex parte decree against the defendant. It lays down a condition for setting aside decree. The plain reading of the explanation clearly indicates that if any appeal against any ex parte decree is disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside ex parte decree under Order IX, Rule 13 of CPC will lie.
       Apex Court ruled that the appeal presented beyond time is an appeal and an order dismissing it as time-barred is one passed in appeal. In that case the appeal was dismissed as barred by limitation, The Apex Court held that the order of the Assistant Commissioner holding that there was no sufficient reason for excusing delay under Section 30(2) of the Income-tax Act and rejecting the appeal as time-barred.
       An appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in appeal, both the aforesaid judgments of this court being per incuriam cannot be of any assistance to the respondents/ defendants. The application for setting aside ex parte decree does not lie and cannot be entertained in view of the provisions contained in the explanation.
       Sections 3 and 5-Civil Procedure Code, 1908, Sections 11 and 115, Order IX, Rule 13-Scope of res judicata-Condonation of delay-After lapse of 6 years-Trial Court accepted application for setting aside ex parte decree-In meantime appeal filed in High Court-Also attached with application seeking condonation of delay-N 0 sufficient cause of delay given-Held-After clear order of High Court, it was wrong on part of trial Court to condone delay and restore case.- There was sufficient indication in the order of the High Court indicating necessity to n10ve an application under Order IX, Rule 13 of CPC. The said order of the Division Bench was delivered on 4th July, 1997. In spite of clear-cut indication indicated by the Division Bench through its order, no attempts were made to move an application under Order IX, Rule 13 of CPC. Apart from this, on the face of the judgment of the Division Bench of this Court holding that no sufficient cause has been made out for delay in presenting appeal, the trial Court could not have condoned delay for the same reasons which were repeated in the application under consideration seeking condonation of delay in presenting an application under Order IX, Rule 13 of CPC.

JUDGMENT - V.C. DAGA, J.:---Rule. Returnable forthwith. Respondents waive service. By consent revision application is taken up for final hearing and disposal.

2. The main question falls for determination in the present revision application is as under : whether dismissal of appeal against the ex parte decree on the ground that the appeal is barred by limitation attracts the provisions contained in Explanation-II of Order 9, Rule 13 of Civil Procedure Code (C.P.C.) and creates bar to the maintainability of the application under Order 9, Rule 13 of C.P.C. for setting aside ex parte decree ?

FACTS-IN-BRIEF

3. The facts and circumstances giving rise to the aforesaid question are as under :

The petitioners/plaintiffs filed special civil suit in the Court of Civil Judge, Senior Division, Sangli against the respondents/defendants for payment of damages in the sum of Rs. 32,35,879/- with interest thereon at the rate of 18% from the date of notice till the date of its realisation. The said suit came to be registered as Special Civil Suit No. 65 of 1991 and came to be assigned to the Joint Civil Judge, Senior Division, Sangli.

4. The respondents/defendants were duly served with the suit summonses. After service of summonses, the respondents/defendants appeared through their Counsel on 24th July 1992. On the same day, an application (Exhibit 16) came to be moved by the respondents seeking time to file written statement. Accordingly, time was granted to the respondents/defendants to file their written statement. The hearing of the suit was fixed on the following dates : 13th August, 1992, 15th September 1992, 7th November 1992, 7th December 1992 and 19th January 1993. On every date of hearing applications were tendered by the respondents/defendants seeking time to file written statement and every time applications were granted by the trial Court. In spite of several adjournments, the respondents/defendants failed and neglected to file their written statement. Consequently, in presence of Advocate for the respondents/defendants on 28th February 1993, the trial Court passed order to the effect suit to proceed in default of written statement. Even after passing of the said order of no written statement was filed by the respondents/defendants.

5. The hearing of the suit was adjourned from time to time on various dates such as 23rd March 1993, 27th April 1993, 18th June 1993, 28th June 1993, 15th July 1993, 28th July 1993, 21st August 1993, 18th September 1993, 19th September 1993, 18th October 1993, 17th December 1993, 24th January 1994, 28th January 1994 and 22nd February 1994. Though Advocates of both the sides were present, hearing of the suit could not be proceeded with since the trial Court was busy in some other matters. On 15th April 1994, when the suit was taken up for hearing, petitioners/plaintiffs and their Advocate were present; whereas the respondents/defendants and their Advocates chose to remain absent though the matter was called out twice. The trial Court left with no option and was compelled to proceed with recording of deposition of plaintiff's witnesses. The trial Court, ultimately, fixed the suit for hearing on 18th June 1994. On 18th June 1994, arguments of petitioners/plaintiffs were heard and on 28th June 1994, the trial Court decreed the suit in favour of petitioners/plaintiffs. The trial Court held that the petitioners/plaintiffs were entitled to recover suit claim of Rs. 32,35,879/- together with future interest at the rate of 18% from the date of suit till the realisation of entire amount from the respondents/defendants jointly and severally.

FIRST ROUND OF LITIGATION

6. The respondents/defendants, on 12th September 1996, filed appeal in this Court being First Appeal (Stamp) No. 23021 of 1996 to challenge the judgment and decree of the trial Court dated 28th June 1994. The appeal was accompanied with Civil Application No. 5874 of 1996 for condonation of delay in filing first appeal. The respondents/defendants (appellants

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2000 Supreme(Bom) 932

Cases Referred (1)