MAMTAZ & ORS.versusGULSUMA ALIAS KULUSUMA

984            SUPREME COURT
                         [2022]REPORTS
                                1 S.C.R. 984              [2022] 1 S.C.R.


A                             MAMTAZ & ORS.
                                       v.
                       GULSUMA ALIAS KULUSUMA
                         (Civil Appeal No. 315 of 2022)
B
                              JANUARY 18, 2022
                [M. R. SHAH AND SANJIV KHANNA, JJ.]
             Civil Procedure Code, 1908 – Or.9 r 13 – sec. 96 – Ex-Parte
      Decree – Setting aside – Power of Appellate Court – Condonation
C     of Delay – In Absence of Application – The appellants filed a suit
      for declaration and possession – Ex-parte decree was passed by
      the trial Court against the respondents – Appeal was preferred by
      the respondents before the First Appellate Court after delay of
      2 years and 7 months – Respondent filed application for
D     condonation of delay, however he withdrew the same later on –
      First Appellate Court dismissed the appeal on the ground of
      limitation in absence of any application to condone the delay –
      Respondents filed second appeal before the High Court – The High
      Court allowed the second appeal and also set aside the ex-parte
      judgment and decree passed by the Trial Court – High Court
E
      remanded the matter to the Trial Court for fresh decision of the suit
      in accordance with law – On appeal, held: What was challenged
      before the High Court was the judgment and order passed by the
      First Appellate Court dismissing the first appeal u/s. 96 of the CPC
      as not maintainable in absence of any delay condoned application
F     – It appears that the High Court proceeded further with the hearing
      of the appeal as if the High Court was considering the appeal against
      the order passed on an application under Order IX Rule 13 CPC –
      Whereas the appeal was against the order and decree passed by
      the trial Court, which was affirmed by the First Appellate Court as
G     barred by limitation – The procedure adopted by the High Court is
      unknown to the procedure known to law under the provisions of
      the CPC – Therefore, the impugned judgment and order passed by
      the High Court is unsustainable.


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                                      984
         MAMTAZ & ORS. v. GULSUMA ALIAS KULUSUMA                        985


        Allowing the appeal, the Court                                  A
      HELD: 1. It is required to be noted that what was challenged
before the High Court was the order/judgment and order passed
by the First Appellate Court dismissing the first appeal under
Section 96 of the CPC as not maintainable in absence of any delay
condoned application. There was no decision by the First                B
Appellate Court on merits. If the High Court was of the opinion
that the First Appellate Court erred in not condoning the delay
in appeal and dismissing the appeal on the ground of limitation,
in that case the High Court could have set aside the order passed
by the First Appellate Court dismissing the appeal on the ground
of limitation and thereafter remand the matter to the First             C
Appellate Court to decide the appeal on merits. From the
impugned judgment and order passed by the High Court, it
appears that the High Court proceeded further with the hearing
of the appeal as if the High Court was considering the appeal
against the order passed on an application under Order IX Rule          D
13 CPC, whereas the appeal was against the order and decree
passed by the Trial Court, which was affirmed by the First
Appellate Court as barred by limitation. Therefore, the procedure
adopted by the High Court is unknown to the procedure known
to law under the provisions of the CPC. Therefore, the impugned
judgment and order passed by the High Court is unsustainable.           E
[Paras 5 & 6][987-G-H; 988-A-C]
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 315 of
2022.
      From the Judgment and Order dated 21.04.2021 of the High Court    F
of Karnataka Kalaburagi Bench in R.S.A. No.200073 of 2021.
      Sharanagouda Patil, Ms. Supreeta Sharanagouda, Advs. for the
Appellants.
       S. N. Bhat, Sr. Adv., Ms. Parvati Bhat, Tarun Kumar Thakur, D.
                                                                        G
P. Chaturvedi, Shahnawaz Mamadapur, Ms. Anuradha Mutatkar, Advs.
for the Respondent.



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986             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


A            The Judgment of the Court was delivered by
             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
B     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
C     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:-
            2.1 That the appellants herein filed a suit for declaration and
      possession. The Trial Court by judgment and decree dated 08.01.2018
D     decreed the said suit. As such the said suit proceeded ex parte and the
      judgment and decree passed by the Trial Court was ex parte decree.
             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
E     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. Therewas a delay of 2 years and
F     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.
G            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
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         MAMTAZ & ORS. v. GULSUMA ALIAS KULUSUMA                              987
                      [M. R. SHAH, J.]

CPC shall not maintainable. Thus, the First Appellate Court dismissed         A
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 –            B
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        C
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.                                           D
      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      E
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 quashing        F
and setting aside the judgment and decree passed by the Trial Court and
remanding the matter back to the Trial Court is unsustainable.
       5. It is required to be noted that what was challenged beforethe
High Court was the order/judgment and order passed by the First Appellate
Court dismissing the first appeal under Section 96 of the CPC as not          G
maintainable in absence of any delay condoned application. Therewas
no decision by the First Appellate Court on merits. If the High Court
was of the opinion thatthe First Appellate Court erred in not condoning
the delay in appeal and dismissing the appeal on the ground of limitation,
in that case the High Court could have set aside the order passed by the
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988             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


A     First Appellate Court dismissing the appeal on the ground of limitation
      and thereafter remand the matter to the First Appellate Court to decide
      the appeal on merits.
             6. From the impugned judgment and order passed by the High
      Court, it appears that the High Court proceeded further with the hearing
B     of the appeal as if the High Court was considering the appeal against the
      order passed on an application under Order IX Rule 13 CPC, whereas
      the appeal was against the order and decree passed by the Trial Court,
      which was affirmed by the First Appellate Court as barred by limitation.
      Therefore, the procedure adopted by the High Court is unknown to the
      procedure known to law under the provisions of the CPC. Therefore,
C     the impugned judgment and order passed by the High Court is
      unsustainable.
             7. At this stage, Shri S.N. Bhat, learned Senior Advocate appearing
      on behalf of the respondent herein - original defendant – appellant before
      the First Appellate Court has requested to permit the original defendant–
D     appellant before the First Appellate Court to revive the application for
      condonation of delay being I.A. No.1 of 2020, which was withdrawn
      mistakenly on wrong applying the provisions of the Limitation Act. Shri
      Bhat, learned Senior Advocate has submitted that if the original defendant
      is not permitted to revive the application for condonation of delay, he
E     would be remediless.
             8. In view of the above and for the reasons stated above, present
      appeal succeeds. The impugned judgment and order passed by the High
      Court dated 21.04.2021 passed in RSA No.200073 of 2021 is hereby
      quashed and set aside. The matter is remanded to the First Appellate
F     Court. The appeal before the First Appellate Court being R.A. No.22 of
      2020 is ordered to be restored to the file in the Court of the First Appellate
      Court. The respondent herein – original defendant – appellant before
      the First Appellate Court is permitted to move an appropriate application
      for revival of I.A. No.1 of 2020 and the First Appellate Court is directed
      to revive I.A. No.1 of 2020, which seems to have been withdrawn by
G     the original defendant – appellant before the First Appellate Court
      mistakenly and thereafter the First Appellate Court to first decide and
      dispose of the said application for condonation of delay and if the delay
      is condoned in that case the First Appellate Court to finally decide and
      dispose of the first appeal in accordance with law and on its own merits.
H     If for any valid reasons, the application for condonation of delay is
          MAMTAZ & ORS. v. GULSUMA ALIAS KULUSUMA                              989
                       [M. R. SHAH, J.]

dismissed by the First Appellate Court, it goes without saying that it will    A
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.
       Present appeal is allowed accordingly to the aforesaid extent. In
the facts and circumstances of the case, there shall be no order as to         B
costs.


Ankit Gyan                                                   Appeal allowed.
(Assisted by : Rahul Rathi, LCRA)
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