TMI Blog2019 (5) TMI 1695X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that though number of amendments were made in the application filed under Order IX Rule 13 CPC, only in the last amendment, the defendants have stated that suit summons was served on the son of applicant No.2 viz. Tanaji. The trial court observed that said Tanaji was an adult and the suit summons served on him was deemed to be an effective service of summons on the defendants. 4. Being aggrieved by the dismissal of application filed under Order IX Rule 13 CPC, on 03.09.2010, the appellant and respondents No.14 and 15 filed Civil Appeal No.108 of 2010 and the same was withdrawn on 11.06.2013. On the very next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed regular appeal challenging the ex-parte decree passed in Regular Civil Suit No.35 of 2007. Along with the said appeal, they also filed Civil Misc. Application No.56 of 2013 for condonation of delay of four years, ten months and eight days. The said application for condonation of delay was allowed by the Additional District Judge, Baramati vide order dated 20.02.2014. The court noted that the appellant and respondents No.14 and 15 did not get an opportunity to contest the suit on merits. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling the appeal. It was submitted that unless the delay in filing the appeal is condoned, the appellants and respondents No.14 and 15 will lose their valuable rights in the suit property which is the joint family property, without having an opportunity to contest the same on merits. 7. Mr. Vinay Navare, learned senior counsel appearing on behalf of the respondents submitted that the time spent in prosecuting the proceedings for setting aside the ex-parte decree under Order IX Rule 13 CPC is wholly irrelevant since those proceedings under Order IX Rule 13 CPC never operated as a bar for filing an appeal under Section 96(2) CPC. It was further submitted that the application filed under Order IX Rule 13 CPC was dismissed on merits and the said order has attained finality and having filed the appeal challenging the said order, the appellants cannot seek for condonation of delay on the ground that they were pursuing the other remedy under Order IX Rule 13 CPC. 8. We have carefully considered the submissions and perused the impugned judgment and other materials placed on record. The following points arise for consideration:- (i) Whether the time spent in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appeal filed under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order IX Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order IX Rule 13 CPC is dismissed. 12. 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 (2005) 1 SCC 787, 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, in paras (36) and (38), it was held as under:- 36. A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different situations and are expected to be resorted to only if the facts of the situation are available to a litigant. The remedies provided as simultaneous and cannot be converted into consecutive remedies. 14. The above observation of the High Court that the remedies provided as simultaneous and cannot be converted into consecutive remedies cannot be applied in a rigid manner and as a straitjacket formula. It has to be considered depending on the facts and circumstances of each case and whether the defendant in pursuing the remedy consecutively has adopted dilatory tactics. Only in cases where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the two remedies consecutively, the court may decline to condone the delay in filing the first appeal. If the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal in challenging the decree on merits. 15. 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 neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in hand, respondents No.1 to 13 filed a suit for partition in the year 2007, which was decreed ex-parte on 04.07.2008. Appellant and respondents No.14 and 15 filed application under Order IX Rule 13 CPC and the same came to be dismissed on 06.08.2010. Being aggrieved by dismissal of application under Order IX Rule 13 CPC, the appellant and respondents No.14 and 15 preferred an appeal under Order XLIII Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was pending for about three years and the same was withdrawn on 11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed an appeal challenging the ex-parte decree and judgment dated 04.07.2008 passed in Regular Civil Suit No.35 of 2007. It cannot be said that the appellant and respondents No.14 and 15 were grossly negligent in pursuing the matter more so, when the decree was passed in the suit for partition. 18. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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