Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 83

SUPREME COURT OF INDIA
(From the High Court of Karnataka at Kalaburagi)
M.R. SHAH, SANJIV KHANNA, JJ.
Mamtaz and Others – Appellants
Versus
Gulsuma alias Kulusuma – Respondent
Civil Appeal No. 315 of 2022
Decided On : 18-01-2022

Advocates appeared:
For the Appellant(s) : Mr. Sharanagouda Patil, Adv. Ms. Supreeta Sharanagouda, AOR Mr. Amankant Mishra, Adv.
For the Respondent(s): Ms. Anuradha Mutatkar, AOR

IMPORTANT POINT
Limitation – Question of limitation must be considered in first instance, before deciding the matter on merits.

Headnote:
Civil Procedure Code, 1908 – Section 96 and Order IX Rule 13 – First Appeal – Limitation – What was challenged before High Court was order/judgment and order passed by First Appellate Court dismissing first appeal under Section 96 of CPC as not maintainable in absence of any delay condoned application – There was no decision by First Appellate Court on merits – If High Court was of opinion that First Appellate Court erred in not condoning delay in appeal and dismissing appeal on ground of limitation, High Court could have set aside order passed by First Appellate Court dismissing appeal on ground of limitation and thereafter remanded the matter to First Appellate Court to decide appeal on merits – High Court proceeded further with hearing of appeal as if High Court was considering appeal against order passed on an application under Order IX Rule 13 CPC, whereas appeal was against order and decree passed by Trial Court, which was affirmed by First Appellate Court as barred by limitation – Impugned judgment passed by High Court is unsustainable. (Paras 5 and 6)
Facts of the case:
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 21.04.2021 passed by the High Court of Karnataka, Kalaburagi Bench in R.S.A. No.200073 of 2021 by which the High Court has allowed the said appeal preferred by the respondent herein and has quashed and set aside the order passed by the First Appellate Court in R.A. No. 22 of 2020 and has also quashed and set aside the judgment and decree passed by the Trial Court and remanded the matter to Trial Court for fresh disposal in accordance with law, the original plaintiffs have preferred the present appeal.
Findings of Court:
If for any valid reasons, application for condonation of delay is dismissed by the First Appellate Court, it will be open for the original defendant to challenge the same before a higher forum/court, which may be considered in accordance with law and on its own merits.
Result : Appeal allowed.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 21.04.2021 passed by the High Court of Karnataka, Kalaburagi Bench in R.S.A. No. 200073 of 2021 by which the High Court has allowed the said appeal preferred by the respondent herein and has quashed and set aside the order passed by the First Appellate Court in R.A. No. 22 of 2020 and has also quashed and set aside the judgment and decree passed by the Trial Court and remanded the matter to the Trial Court for fresh disposal in accordance with law, the original plaintiffs have preferred the present appeal.

2. The facts leading to the present appeal, which are necessary for the purpose of disposal of the present appeal in nutshell are as under:

2.2 Two remedies were available to the defendant-one, filing an application for setting aside the ex-parte decree under Order IX Rule 13 of the Civil Procedure Code (hereinafter referred to as “CPC”) and the other preferring an appeal against the judgment and decree passed by the Trial Court.

2.3 The defendant-respondent herein preferred the second option and preferred appeal before the First Appellate Court against the judgment and decree passed by the Trial Court. There was a delay of 2 years and 7 months in preferring the first appeal. Therefore, the respondent herein-original defendant the appellant before the First Appellate Court filed I.A. No. 1 of 2020 requesting to condone the delay. However, the appellant before the First Appellate Court-original defendant for whatever reason withdrew the said application for condonation of delay.

2.4 That the first appeal came up before the First Appellate Court. As there was no fresh application to condone the delay and the earlier condonation of delay application requesting to condone the delay of 2 years and 7 months was withdrawn, by order dated 10.12.2020, the First Appellate Court dismissed the first appeal on the ground that in absence of any application to condone the delay the appeal under Section 96 CPC shall not maintainable. Thus, the First Appellate Court dismissed the first appeal solely on the aforesaid ground of limitation and the First Appellate Court did not go into the merits of the case at all.

2.5 Feeling aggrieved and dissatisfied with the order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of any delay condoned application, the respondent herein-original defendant-appellant before the First Appellate Court preferred second appeal before the High Court. By the impugned judgment and order, the High Court has allowed the said second appeal and has not only set aside the judgment and order passed by the First Appellate Court dismissing the appeal as not maintainable in absence of delay condoned application, but has also set aside the ex-parte judgment and decree passed by the Trial Court as if the High Court was considering the order passed in an application under Order IX Rule 13 CPC and has also quashed and set aside the judgment and decree passed by the Trial Court and has remanded the matter to the Trial Court for fresh decision of the suit in accordance with law.

2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original plaintiffs have preferred the present appeal.

3. We have heard Shri Sharanagouda Patil, learned counsel appearing on behalf of the appellants and Shri S.N. Bhat, learned Senior Advocate appearing on behalf of the contesting respondent-original defendant.

4. Having heard the learned counsel for the respective parties and considering the facts narrated hereinabove, we are of the opinion that the impugned judgment and order passed by the High Court q

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