Mamtaz vs Gulsuma Alias Kulusuma

Mamtaz vs Gulsuma Alias Kulusuma - Supreme Court Case 2022

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 315 OF 2022
Mamtaz & Ors. ...Appellant(s)
Versus
Gulsuma Alias Kulusuma ...Respondent(s)
J U D G M E N T
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.
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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
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
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
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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.
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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 quashing
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 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 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 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 of the
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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, 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 – 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 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 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
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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 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. If for any valid reasons, the application for
condonation of delay is dismissed by the First Appellate Court, it goes
without saying that 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.
Present appeal is allowed accordingly to the aforesaid extent. In
the facts and circumstances of the case, there shall be no order as to
costs.
………………………………….J.
 [M.R. SHAH]
NEW DELHI; ………………………………….J.
JANUARY 18, 2022. [SANJIV KHANNA]
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