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2006 (1) JLJ 384
U.C. Maheshwari, J.
Narmada Club Registered Society and another v. P.K. Tare
First Appeal No. 577 of 2004; against the judgment and decree of
First Additional District Judge Hoshangabad, passed in
Civil Original Suit No. 3-A of 1992;
Decided on 26.7.2005.
This IA No. 4242/05 has been filed by the appellant under section 5 of Limitation Act for condoning the delay in filing the appeal against the impugned ex parte judgment and decree passed on 22.11.1993 and dated 24.11.1993 respectively by First Additional District Judge, Hoshangabad, in COS No. 3.A/1992.
As per averments of it, on having knowledge about said ex parte decree, they filed an application dated 13.8.1994 under Order 9 Rule 13 of Civil Procedure Code (in brief "CPC") for setting aside it, such proceedings as MJC No. 90/94 were contested by parties and by order of the trial Court, dated 17.12.1998, the same was dismissed on merits, on which MA No. 445/99 preferred by appellant, was also dismissed vide order dated 19.10.2000 and order of trial Court was upheld. On which special leave petition was preferred before the apex Court which was also dismissed vide order dated 19.8.2004 as Civil Appeal No. 641/03. Thus, the proceedings under Order 9 Rule 13 of CPC have come to an end and such decree has remained in force.
It is an admitted fact that till disposal of the aforesaid proceedings, appellant had not preferred any regular appeal against the impugned decree as provided under section 96 of the CPC and only after exhausting the aforesaid remedy, filed this appeal along with this application to condone the delay from the date of decree upto filing this appeal, i.e., on 14.9.2004. As per application, the main ground for condonation of delay is that they were prosecuting the aforesaid proceedings in good faith with due diligence before the other forum, so by excluding period spent in such proceedings, this appeal be treated in time and heard on merits. [Paras 1 to 4
Held : In the case at hand, it is apparent and matter of record that apex Court, on considering the matter of Civil Appeal No. 641/03 (might have considered the aforesaid circumstances and merits as said in aforesaid apex Court decision) dismissed the appellant‘s appeal regarding setting aside of the ex parte decree. So in view of the apex Court decision dated 19.8.2004 in Civil Appeal No. 641/03, the hand of this Court is tied and thus the proceedings which have been struck down by the apex Court on considering the aforesaid aspect, the same could not be a ground or a sufficient cause for condoning the delay in filing the present appeal. [Para 19
(2) Limitation Act, 1963 -- S.5 -- condonation of delay -- ground of lack of advice -- neither mentioned in application nor in affidavit -- such ground cannot be considered. [Para 11
(3) Limitation Act, 1963 -- S.5 -- application for condonation of delay in filing of appeal -- grounds related to merits of impugned judgment and decree and to disputed property -- cannot be considered at this stage. 1962 JLJ 471 and (2001) 6 SCC 176 distinguished. [Paras 12 & 18
(4) Civil P.C., 1908 -- S. 96(2) and 0.9 R.13 -- remedy of setting aside ex parte decree -- rejected upto apex Court -- regular appeal under S.96(2) can still be filed-- even simultaneously -- both the remedies may be sought. 1982) 2 SCC 596 distinguished. 1989(1) MPWN 146 held overruled. 2000 (2) JLJ 84 (FB) relied on. 2005(3) JLJ 303 (SC) followed. [Paras 13 & 14
¼1½ ifjlhek vf/kfu;e] 1963& &/kkjk 5& &,di{kh; fMØh ds fo#) vihy Qkby djus esa foyac dh ekQh& &flfoy çfØ;k lafgrk ds vk-9- fu-13 ds v/khu fMØh vikLr fd, tkus ds fy, vkosnu loksZPp U;k;ky; rd [kkfjt& &ifjlhek ds ijs vihy Qkby fd, tkus dk ;g vk/kkj ugha gks ldrkA
;g varfje vkosnu Ø- 4242@05 vihykFkhZ }kjk ifjlhek vf/kfu;e dh /kkjk 5 ds v/khu çFke vij ftyk U;k;/kh‘k] gks‘kaxkckn }kjk flfoy ewy okn Ø-3&,@1992 esa Øe‘k% 22-11-1993 vkSj 24-11-1993 dks ikfjr vkf{kIr ,di{kh; fu.kZ; vkSj fMØh ds fy, vihy Qkby djus esa foyac ekQ fd, tkus ds fy, Qkby dh xbZ gSA
blesa fd, x, çdFkuksa ds vuqlkj mDr ,di{kh; fMØh dh tkudkjh çkIr gksus ij mUgksaus mldh vikfLr ds fy, flfoy çfØ;k lafgrk ¼la{ksi esa ^lafgrk*½ ds vkns‘k 9 fu;e 13 ds v/khu vkosnu fnukad 13-8-1994 Qkby fd;k] çdh.kZ U;kf;d ekeyk Ø- 90@94 dh mDr dk;Zokgh dk i{kdkjksa }kjk fojks/k fd;k x;k rFkk fopkj.k U;k;ky; ds vkns‘k fnukad 17-12-1998 }kjk o xq.kkxq.k ij [kkfjt dj fn;k x;k ftl ij vihykFkhZ }kjk çdh.kZ vihy Ø-445@99 çLrqr dh xbZ] og Hkh vkns‘k fnukad 19-10-2000 }kjk [kkfjt dj nh xbZ rFkk fopkj.k U;k;ky; dk vkns‘k ekU; Bgjk;k x;kA bl ij loksZPp ds le{k fo‘ks"k btktr ;kfpdk çLrqr dh xbZ] og Hkh flfoy vihy Ø- 641@03 esa vkns‘k fnukad 19-8-2004 }kjk [kkfjt dj nh xbZA bl çdkj] lafgrk ds vkns‘k 9 fu;e 13 ds v/khu dk;Zokgh lekIr gqbZ vkSj ;g fMØh ço`Ùk cuh jghA
;g LohÑr rF; gS fd iwoksZDr dk;Zokgh ds fuiVkjs rd vihykFkhZ us vkf{kIr fMØh ds fo#) lafgrk dh /kkjk 96 esa ;Fkk micaf/kr fu;fer vihy ugha dh Fkh rFkk iwoksZDr mipkj fu%‘ks"k djus ds i‘pkr gh mlus ;g vihy] fMØh fnukad ls ;g vihy Qkby fd, tkus ds fnukad vFkkZr 14-9-2004 rd foyac ekQ fd, tkus ds bl vkosnu ds lkFk Qkby dh gSA
vkosnu ds vuqlkj] foyac dh ekQh ds fy, eq[; vk/kkj ;g gS fd og vU; U;k;ky; ds le{k iwoksZDr dk;Zokgh lnHkkoukiwoZd] lE;d rRijrk ls pyk jgs Fks blfy, bu dk;Zokfg;ksa esa O;rhr le; vioftZr dj ;g vihy le; ds Hkhrj le>h tk, vkSj xq.kkxq.k ij lquh tk,A ¼iSjk 1 ls 4½
vfHkfu/kkZfjr % çLrqr ekeys esa ;g çdV gS rFkk vfHkys[kxr gS fd loksZPp U;k;ky; us flfoy vihy Ø- 641@03 ds ekeys ij fopkj dj ¼laHkor% loksZPp U;k;ky; ds iwoksZDr fofuf‘p; esa rFkkdfFkr ifjfLFkfr;ksa vkSj xq.kkxq.k ij fopkj fd;k x;k gksxk½ ,di{kh; fMØh vikLr fd, tkus ds laca/k esa vihykFkhZ dh vihy [kkfjt dj nhA vr% flfoy vihy Ø- 641@03 esa loksZPp U;k;ky; ds fofuf‘p; fnukad 19-8-2004 dh n`f"V ls] bl U;k;ky; ds gkFk c¡/ks gSa vkSj bl çdkj iwoksZDr igyw ij fopkj djus ij loksZPp U;k;ky; }kjk tks dk;Zokgh fo[kafMr dj nh xbZ gS og çLrqr vihy Qkby djus esa foyac ekQ djus ds fy, vk/kkj ;k i;kZIr dkj.k ugha gks ldrhA ¼iSjk 1½
¼2½ ifjlhek vf/kfu;e] 1963& &/kkjk 5& &foyac dh ekQh& &lykg ds vHkko dk vk/kkj& &u vkosnu esa mfYyf[kr u ‘kiFki= esa& &,sls vk/kkj ij fopkj ugha fd;k tk ldrkA ¼iSjk 11½
¼3½ ifjlhek vf/kfu;e] 1963& &vihy Qkby djus esa foyac dh ekQh ds fy, vkosnu& &vkf{kIr fu.kZ; vkSj fMØh ds xq.kkxq.k ls vkSj fookfnr laifÙk ls lacaf/kr vk/kkj& &bl çdkj ij fopkj ugha fd;k tk ldrkA 1962 ts ,y ts 471 rFkk ¼2001½ 6 ,l lh lh 176 çHksfnrA ¼iSjk 12 ,oa 18½
¼4½ flfoy çfØ;k lafgrk] 1908& &/kkjk 96¼2½ rFkk vk-9 fu-13& &,di{kh; fMØh vikLr fd, tkus dk mipkj& &loksZPp U;k;ky; rd ukeatwj& &rc Hkh /kkjk 96¼2½ ds v/khu fu;fer vihy Qkby dh tk ldrh gS& &,d gh le; Hkh& &nksuksa mipkjksa dh bZIlk dh tk ldrh gSA 1982 ¼2½ ,l lh lh 596 çHksfnrA 1989 ¼1½ e-ç- ohDyh uksV~l 146 myVk x;k vfHkfu/kkZfjrA 2000 ¼2½ ts ,y ts 84 ¼iw.kZ U;k;ihB½ voyafcrA 2005 ¼3½ ts ,y ts 303 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 13 ,oa 14½
Maheshwari, J. -- 1. This IA No. 4242/05 has been filed by the appellant under section 5 of Limitation Act for condoning the delay in filing the appeal against the impugned ex parte judgment and decree passed on 22.11.1993 and dated 24.11.1993 respectively by First Additional District Judge, Hoshangabad, in COS No. 3-A/1992.
2. As per averments of it, on having knowledge about said ex parte decree, they filed an application dated 13.8.1994 under Order 9 Rule 13 of Civil Procedure Code (in brief "CPC") for setting aside it, such proceedings as MJC No. 90/94 were contested by parties and by order of the trial Court, dated 17.12.1998, the same was dismissed on merits, on which MA No. 445/99 preferred by appellant, was also dismissed vide order dated 19. 10.2000 and order of trial Court was upheld. On which special leave petition was preferred before the apex Court which was also dismissed vide order dated 19.8.2004 as Civil Appeal No. 641/03. Thus, the proceedings under Order 9 Rule 13 of CPC have come to an end and such decree has remained in force.
3. It is an admitted fact that till disposal of the aforesaid proceedings, appellant had not preferred any regular appeal against the impugned decree as provided under section 96 of the CPC and only after exhausting the aforesaid remedy, filed this appeal along with this application to condone the delay from the date of decree upto filing this appeal, i.e., on 14.9.2004.
4. As per application, the main ground for condonation of delay is that they were prosecuting the aforesaid proceedings in good faith with due diligence before the other forum, so by excluding period spent in such proceedings, this appeal be treated in time and heard on merits. It is also stated that this cause is sufficient to condone the delay.
5. However, some other grounds are also taken in it, but all other grounds re related with the merits of the impugned judgment, decree and property dispute, so they are not required to mention here.
6. In reply, filed on behalf of respondent, it has been pleaded that the proceeding filed by appellants under Order 9 Rule 13 of CPC was not the same proceedings like appeal, so same cannot be treated as that it was filed and prosecuted for long time before the wrong forum which had no jurisdiction to hear it, but such proceedings was initiated before the appropriate forum and inspite the availability of right to file regular appeal such appeal was not filed within limitation even after receiving the knowledge of said decree and reasons as mentioned by appellant also denied and existence of any sufficient cause for excluding the time in computing the period for limitation is also denied and prayed for dismissal of this application.
7. Counsel for appellant during the course of argument fairly conceded that Section 14 of Limitation Act is not applicable to his case and could not be invoked in available circumstances but argued the matter for condoning the delay and submitted that although right to file appeal and to file proceedings for setting aside ex parte decree are concurrent and both were available to the appellants but due to lack of proper advice appeal could not be filed within time and only after exhausting the remedy under Order 9 Rule 13 of CPC on receiving the advice to file this appeal, then this appeal has been preferred. It was further said that the time exhausted in said other proceedings is a bona fide and sufficient cause for condoning the delay in filing the appeal.
8. He also advanced his submission on other grounds related with the merits of the judgment decree and property in dispute. He placed his reliance in the matter of Chhotelal v. Faminadas reported in 1962 JLJ 471=AIR 1963 MP 20 and another in the matter of M.K. Prasad v. Arumugam reported in 2001(6) SCC 176.
9. While on other hand counsel for respondent placed his reliance on decided cases by the apex Court in the matter of Rani Choudhary v. Lt. Col. Surjit Choudhary and others reported in 1982(2) SCC
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