Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2019 (5) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (5) TMI 1695 - SC - Indian LawsCondonation of delay in filing first appeal - validity of exparte decree passed - sufficient cause to condone delay present or not - partition and separate possession of the suit property - right to appeal - regular appeal under Section 96(2) CPC - When an application filed under Order IX Rule 13 CPC has been dismissed on merits, whether regular appeal under Section 96(2) CPC is barred? - HELD THAT:- The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed - In Bhanu Kumar Jain v. Archana Kumar and Another [2004 (12) TMI 676 - SUPREME COURT], the Supreme Court considered the question whether the first appeal was maintainable despite the fact that an application under Order IX Rule 13 CPC was filed and dismissed. Observing that the right of appeal is a statutory right and that the litigant cannot be deprived of such right, it was held that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. It is a fairly well settled law that “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. It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the court at the stage of passing preliminary decree cannot be challenged at the time of final decree - In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC. The time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as “sufficient cause” for condoning the delay in filing the first appeal - impugned judgment of the High Court cannot be sustained and is liable to be set aside - Appeal allowed.
|