Case Note & Summary
The matter originated from a suit for recovery of possession (R.C.S. No. 346 of 1995) filed by the applicants (original plaintiffs) against the respondents (original defendants). The suit was decreed ex parte on 31 March 2001. After a gap of more than 10 years, respondent No.1 preferred a first appeal accompanied by an application for condonation of delay under Section 5 of the Limitation Act, 1963, citing 9 years 11 months and 2 days' delay. The application was initially dismissed but was restored by the High Court in a second appeal, with a direction to the lower appellate court to decide it afresh. Pursuant to that direction, the lower appellate court took evidence on the question of service of summons and found that the respondents were not served and had no knowledge of the decree, consequently condoning the delay. The original plaintiffs, aggrieved by this order, invoked the revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure, 1908. The core legal questions that arose were: (i) whether in a regular first appeal under Section 96 CPC against an ex parte decree, the appellate court can examine the plea of non-service of summons, and (ii) whether the condonation of an inordinate delay of nearly 10 years was justified in the absence of sufficient cause. The applicants contended that the only remedy available to a defendant aggrieved by an ex parte decree on the ground of non-service is an application under Order 9 Rule 13 CPC, and that a first appeal cannot be used to canvass such a plea. They relied on Bhanu Kumar Jain v. Archana Kumar [(2005) 1 SCC 787] to argue that the explanation to Order 9 Rule 13 must be strictly construed. They further submitted that the lower appellate court had misdirected itself by conducting a mini-trial on service of summons, effectively reversing the decree through a collateral proceeding. The respondents, on the other hand, relied on Mahesh Yadav v. Rajeshwar Singh [(2009) 2 SCC 205] to argue that multiple remedies, including an appeal under Section 96, are available to a defendant against an ex parte decree. They maintained that they were never served with summons and had proof that they lived at different addresses. The High Court analysed the scheme of the Code and held that a first appeal under Section 96, when directed against an ex parte decree, is limited to the examination of the record of the trial court to ascertain whether the decree could be sustained on merits. The question whether the defendant was prevented by sufficient cause from appearing at the trial is alien to such an appeal and must be exclusively raised in an application under Order 9 Rule 13. The court observed that the lower appellate court had committed a patent jurisdictional error by framing no proper points for determination and proceeding to try the factum of service of summons. It took note that the trial court record indicated service and appearance through an advocate, but the lower appellate court disbelieved this without any material on record. The High Court found that the condonation of a delay of 9 years 11 months and 2 days, in the absence of any cogent explanation, was perverse and beyond the parameters of Section 5 of the Limitation Act. It accordingly set aside the impugned order and dismissed the delay condonation application, thereby upholding the finality of the ex parte decree. The revision application was allowed in favour of the applicants.
Headnote
A) Civil Procedure – First Appeal against Ex Parte Decree – Scope of Appeal under Section 96 – Code of Civil Procedure, 1908, Section 96, Order 9 Rule 13 – In a first appeal preferred against an ex parte decree, the appellate court cannot adjudicate upon the plea of non-service of summons or the propriety of the ex parte order; the exclusive remedy for such grievance lies in an application under Order 9 Rule 13 of the Code. The lower appellate court erred in taking evidence and deciding the factual issue of service of summons while considering the application for condonation of delay in filing the appeal. (Paras 9-10) B) Limitation – Condonation of Inordinate Delay – Sufficient Cause – Limitation Act, 1963, Section 5 – A delay of about 10 years in filing an appeal against an ex parte decree was condoned by the lower appellate court without adequate explanation. The lower court failed to assess whether the applicant had shown sufficient cause for the prolonged delay and instead ventured into merits of non-service, leading to its order being set aside. (Paras 9-10)
Issue of Consideration
Whether the lower appellate court could entertain the plea of non-service of summons while condoning delay in filing first appeal against ex parte decree, and whether the condonation of delay of 9 years 11 months and 2 days was justified.
Final Decision
Civil Revision Application allowed; impugned order of lower appellate court condoning delay set aside; application for condonation of delay (MARJI No. 86/2011) dismissed.
Law Points
- In a regular first appeal under Section 96 CPC against an ex parte decree
- the question of non-service of summons cannot be agitated
- the exclusive remedy is under Order 9 Rule 13 CPC.
- Condonation of inordinate delay under Section 5 Limitation Act requires sufficient cause
- the lower appellate court cannot conduct a roving inquiry into merits of non-service.
- The revisional court may set aside an order condoning delay passed without proper appreciation of law and facts.
