ORDER
1. The petitioner, second defendant in OS No. 13/90 on the file of the Court of Subordinate Judge, Penukonda, filed this revision petition against the order dated 30-10-1996 passed by the learned Subordinate Judge in IA No.50/95 in the above suit, wherein the application to condone the delay of 71 days in filing the application under Order IX Rule 13 of CPC was dismissed by holding that the judgment dated 13-12-1994 in the suit is on merits and hence the application under Order IX Rule 13 of CPC is not maintainable as such this application for condonation of the delay in filing the application is not maintainable.
2. The learned Counsel appearing for the respondents raised a preliminary objection that no revision can He against an order passed by the lower Court under Section 5 of the Limitation Act (for short, ‘the Act’) and the petitioner has to file an appeal against the order as the dismissal of the application under Section 5 of the Act amounts to dismissal of the application filed under Order IX Rule 13 of CPC. The above contention was raised by the respondents Counsel on the basis of a judgment of this Court in Divisional Engineer (Operations) APSEB (Urban) Power House, Nizamabad and others v. Shaik Mohammed, . It is also his case that as the ex parte judgment of the trial Court happened to be on merits, the application under Order IX Rule 13 filed by the petitioner is a misconceived one.
3. To appreciate the rival contentions of the parties a little factual background is required.
4. The first respondent herein filed a suit OS No. 13/90 against the District Collector and the petitioner who was working as Executive Engineer, Roads and Buildings, Dharmavaram, Anantapur District, claiming compensation of about Rs.30,000/- for alleged demolition of his premises bearing No. 1-388 on Penugonda – Bangalore National High-way No.7. In the suit, the Executive Engineer was made as a party defendant in the name by attributing mala fides to him. It is not known how the Court permitted the respondent to file a suit for recovery of damages against the petitioner in his personal capacity while the act alleged against him is attributable to his official capacity.
Be that as it may, while the District Collector was represented by the Government Pleader the petitioner seemed to have engaged a private lawyer by name B. Sankaranarayana Rao to defend him and a written statement was filed on his behalf on 27-8-1990. Thereafter, the petitioner seemed to have been transferred to Tirupati and there was no communication from his Counsel about the progress of the case. The petitioner seemed to have visited Penugonda to attend the marriage of a near relative in the month of March, 1995 and in his enquiries he came to know that his Counsel died on 28-6-1994. In his further enquiry he came to know that he was set ex parte on 27-9-1994 and thereafter the trial Judge by his order dated 13-12-1994 while dismissing the suit against the District Collector decreed the suit against the petitioner herein personally for Rs.30,000/- as prayed for. Immediately, he filed two applications on 14-3-1995 – one under Order IX Rule 13 CPC to set aside the ex parte decree passed in OS No. 13/90 and another one IA No.50/95 under Section 5 of the Act to condone the delay of 71 days. Unless the delay in filing the application under Order IX Rule 13 of CPC is condoned that application cannot be
numbered as per law. The Subordinate Judge dismissed the application IA No.50/95 by his order dated 30-10-1996.
6. ave gone through the order of the Court below. The reasons given by the learned Subordinate Judge for dismissal of the application are – (i) that even after the petitioner was set ex parte on 27-9-1994 his predecessor in office continued the trial for a considerable time and ultimately passed order on 13-12-1994 as such it amounts to a judgment pronounced on merits; (ii) that the decree passed by his predecessor is a composite decree against the defendants and as per the judgment while the suit is dismissed against the first defendant, Collector, the same was decreed against the petitioner and hence if the decree is set aside the interest of the first defendant, against whom the suit was dismissed on merits, will suffer adversely as the decree cannot be split up against the petitioner herein and (iii) that the decree-holder should not be deprived of his right to execute the decree passed on merits. Aggrieved by the said order, the present revision petition is filed.
7. this case, the Court is called upon to decide – (i) whether the application under Order IX Rule 13 of CPC is maintainable in case where the suit was decreed on merits against the defendant in his absence and (ii) whether the revision filed under Section 115 of CPC against the order of dismissal of the application filed under Section 5 of the Act to condone the delay in filing the application under Order IX Rule 13 is maintainable or the dismissal of the application filed under Section 5 of the Act tantamounts the dismissal of the application under Order IX Rule 13 of CPC itself and an appeal has to be filed as held by this Court in Divisional Engineer (Operations) APSEB’s case (supra).
8. ar as the first issue is concerned, it is no more res integra. Even though there was some controversy with regard to interpretation of Order XVII Rule 2 of CPC prior to amendment of CPC in 1976, the Supreme Court in Prakash Chander v.
Smt. Janki Manchanda, , ruled that after amendment, there is no scope for ambiguity and any order passed by the Court in the absence of the party should be treated only as an ex parte order. Having considered the scope of Order XVII Rule 2 and Order XVII Rule 3 of CPC their Lordships of the Supreme Court held that if any one of the parties remain absent and for that party no evidence has been adduced up to that date, the Court has no option but to proceed to dispose of the matter in accordance with-Order XVII Rule 2 of CPC i.e. in any one of the modes prescribed under Order IX of CPC. Ultimately, it was held that the order of the trial Court, that an application under Order IX Rule 13 of CPC is not maintainable, is an erroneous one and on the facts of the case which are in pari materia the same as in this case and accordingly the order of the trial Court was set aside. From the order passed by the trial Court in this case it is seen that the members of the subordinate judiciary are not keeping abreast with the legal propositions laid down by the superior Courts even after decades. In the light of the Supreme Court judgment referred above, the mere fact the trial Judge proceeded with the case after setting the petitioner ex parte and the suit was decreed on a later date does not amount to be a decree passed on merits. Hence, an application under Order IX Rule 13 of CPC is maintainable in law. The same view has been taken by tlis Court in B. Seshagiri Rao v. Ramalingeswara Devasthanam, 1987 (1) APLJ 21 and in K. Ramachandra Rapt v. Syndicate Bank, Mehdipatnam Branch, Hyderabad, 1983 (2) APLJ 1. I have taken a similar view in Gali Laxmamma v. Reparthi Anjaiah, , wherein I have considered the issue at length with reference to Order XVII Rule 2 and Order XVII Rule 3 of CPC and the judgment of the Supreme Court. Hence, the first reason given by the Court below cannot be sustained in law and the same is set aside.
9. Now, as far as the second issue is concerned, I have gone through the judgment of my learned brother B.K. Somasekhara, J. (as he then was) in Divisional Engineer (Oprations) APSEB ‘s case (supra) and with great respect to the learned Judge, it cannot be said that the proposition laid down is a correct one. My learned brother stretched the language of Section 3 of the Act in arriving at such a decision without reference to the language employed in the section and without finding the intention of the Legislature with reference to the other provisions in the statute and also without reference to the catena of decisions on various provisions of the Act as well as the CPC. The learned Judge came to the above conclusion, that by virtue of Section 3 of the Act the dismissal of application filed under Section 5 of the Act tantamounts to dismissal of petition under Order IX Rule 13 of CPC without examining the issue that whether the aggrieved party is left without remedy on such dismissal. The learned Judge just jumped at that conclusion by propounding a new theory of dismissal constructively. The learned Judge also hold mat the application under Section 5 of the Act cannot be maintained independently unless an application under Order IX Rule 13 of CPC is filed and a proper construction of Order IX Rule 13 of CPC, Sections 3, 4 and 5 of the Limitation Act and Article 123 of the Limitation Act would conclusively and legally confirm that no revision under Section 115 of CPC would cither lie or become maintainable. He was also of the opinion that the party who comes to the Court after the expiry of the time limit prescribed has to explain the reasons for such delay and the Court has to satisfy about the reasons given by the party. In other words, consideration of the application filed under Section 5 of the Act is mainly a question of fact and secondly a mixed questions of law and facts and also a question of law and hence the Court of first appeal can consider both facts and law and mixed questions of law and facts while dealing with such question. As the petition under Section 115 of CPC is by way of a revision the scope and ambit is very much limited and subject to strict parameters of the provision, the party will have a better opportunity of convincing the Court in first
appeal on facts in addition to questions of law.” On this ground also the learned Judge holds that only an appeal has to be filed but not a revision under Section 115 of CPC.
10. Now, let me examine whether the above case was correctly decided or it is a per incuriam.
11. Part VII of CPC deals with appeals. Under Section 96(2} of CPC not only against the original decree passed by a Court on merits but also against an ex parte decree appeal shall lie to the appropriate Court. Under Section 104 of CPC an appeal is provided expressly against the orders passed under some of the provisions of the Code or under any law for the time being in force. Under sub-clause (i) ‘an appeal is provided against any order made under rules from which an appeal is expressly allowed by rules’. Under Section 105 of CPC the correctness of the orders passed either under the provisions of CPC where an appeal is not expressly provided can be canvassed before the appellate Forum by specifically raising the ground of objection in memorandum of appeal. Under Section 115 of CPC the High Court is empowered (i) to examine the correctness of the order passed by the Court subordinate to it against which no appeal shall lie either suo motu or at the instance of the aggrieved party to satisfy itself that the order of the Subordinate Court is within its jurisdiction or not; (ii) whether the Court below failed to exercise the jurisdiction vested in it or (iii) while exercising such a jurisdiction acted illegally or with material irregularity and to see that there is no miscarriage of justice. Order IX deals with appearance of parties and consequences of non-appearance. Under Rule 13 a right is conferred on the defendant to apply to the Court which passed an ex parte decree to set it aside and if he satisfies the Court that he was prevented by sufficient cause from appearing in the Court when the suit is called for hearing, the Court is left with no option except to make an order setting aside the decree as against him and shall appoint a day for
proceeding with the suit. Under first proviso if the decree cannot be set aside against such defendant who was prevented from appearing in the Court when the suit is called for is not possible, the Court may set aside the decree against all or any of the defendants also. From this it is evident that when a suit is decreed ex parte, the statute conferred a right on the defendant who was prevented from appearing in the Court on the day when the case was taken up for hearing for sufficient cause to file an application to save money and time without having recourse to filing of a regular appeal as contemplated under Section 96(2) of CPC which is not only expensive but also time consuming. Order 43 deals with appeals from orders passed under the provisions of Section 104 CPC. An appeal is provided against the order rejecting the application filed under Order IX Rule 13 of CPC to set aside a decree passed ex parte under Rule l(d) of the above order.
12. If any credence is to be given to the reasoning given by my learned brother under Order XLIII the Legislature would not have provided an appeal against the order of dismissal passed under Order IX Rule 13 of CPC as Section 96(2) has also taken care of ex parte decrees. Further, as per the above judgment, the dismissal of the application filed under Section 5 of the Act amounts to dismissal of the application filed under Order IX Rule 13 of CPC and the only course left to the aggrieved party would be to file a regular appeal under Section 96(2) of CPC by paying ad valorem Court fee and the Legislature would not have provided a specific remedy under Order XLIII Rule l(d) of CPC by way of filing a miscellaneous appeal against the order dismissing the application to set aside an ex parte order by paying fixed Court fee of Rs. 10/-. This is not only a cheaper remedy but also a speedy remedy unlike the regular appeal which will be time consuming apart from being expensive. Further, once the Court finds that the order of the Court below is perverse the matter has to be remanded back for giving an opportunity to the defendant to
putforth his case and to examine his witnesses. In other words in the event of allowing the appeal, the clock will be set in anti-clock direction and the matter has to be re-heard while that is not the situation in disposing of the regular appeals by the appropriate Forums.
13. Nextly, if the reasoning given by the learned Judge is accepted the statute provided two remedies to meet the situation. On the dismissal of the application filed under Order IX Rule 13 of CPC i.e. filing of an appeal under Section 96(2) and the other filing of an appeal under Order XLIII`Rule l(d) of CPC which cannot be the intention of the law making body. In other words, one of the remedies provided under the statute has to be declared as redundant by the Court. But the superior Courts repeatedly held that while interpreting the provisions of any statute ordinary and natural meaning should be given to the language used in the provision and it should not be stretched to an extent that the very intent and purpose of the enactment is lost. From the above discussion it is evident that any application filed under any of the provisions of the Code has to be disposed of by the Court independently and the aggrieved party is entitled to invoke the jurisdiction of either the appellate Court or revisional Court to test the correctness of the impugned order and the question dismissing an application by importing the principle of constructive dismissal available in service law to civil law does not arise.
14. Now, coming to the law of limitation with regard to filing the suits and other proceedings, it is true that under Section 3 of the Act any suit instituted, appeal preferred and application made after the prescribed period have to be dismissed even if the defendant fails to set up limitation as a defence. But, the same is subject to the provisions of Sections 4 to 24 of the Act whereunder the period of limitation has been extended by legal friction in relation to the matters that arises under different statutes unless a contrary view is expressed in the special enactment itself. Under Section 4 of the Act, if the Court is
closed on the last day of limitation either for
filing of the suit, appeal or application, the
time is extended till the Court is reopened and
the last day for filing of the case will be the
day on which the Court reopens. If the
reasoning given by the learned Judge is to be
accepted, all the cases in which the period of
limitation expires during Court vacation or
holiday, have to be dismissed straightaway
even though the same has been filed on the
very next working day of the Court. If such a
course is to be adopted by the Courts it will
end in catastrophe. Likewise Section 5 of the
Act deals with enlargement of the time
prescribed for filing the appeals or applications
under CPC except under the provisions of
Order XXI of CPC. Section 5 of the Act
reads as under :
“Extension of prescribed period in certain cases :-Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.”
15. The other sections deals with enlargement of time under special enactments. Under these sections, the Court is given discretionary power to condone the delay in filing an application or an appeal beyond the period of limitation. Such a provision was made by the Legislature in furtherance of the cause of justice so that the party having a good case in not approaching the Court timely, may not loose the same on technical plea of limitation. The experience of the Court reveals that the reasons are innumerable for conferring such a discretionary power on the Court by the Legislature.
16. As stated supra, the power conferred on the Court under Section 3 of the Act is not an absolute one and the power of the Court under Section 3 of the Act is circumscribed by provisions of Sections 4 to 24 of the Act. In other words, if the party who approached the Court beyond limitation satisfactorily explains
his conduct in not approaching the Court well within the prescribed period of limitation and the Court if satisfied with the reasoning given by him is bound to exercise the discretionary power vested in it and condone the delay in filing the appeal or application. It is also to be seen that an order passed under Section 5 of the Act is not an appealable order and in such a situation, the aggrieved party can press into service the provisions of Section 115 CPC to test the correctness of the order passed by the Court below. As stated supra if the High Court is satisfied that the Court below is either having no jurisdiction or failed to exercise the jurisdiction vested in it or in exercise of the jurisdiction acted illegally or with material irregularity, the High Court is always at liberty to vary or reverse any order passed by the Court below to prevent miscarriage of justice or irreparable injury to the party against whom it is made. It is also now well-settled principle that when no specific provision was made in a statute to meet a particular situation it is always open to the party to invoke the revisionary powers vested in High Court to get the mistake corrected and to see that no miscarriage of justice is committed. Hence, it cannot be contended that if an application filed under Section 5 of the Act is dismissed by the Court wrongly or without applying its mind to the facts of the case the party will be left with no remedy under law. More so, when it goes to-the root of the dispute.
17, Coming to the other reason given by the learned Judge, it is true that without an application under Order IX Rule 13 CPC no application under Section 5 of the Act can be filed. In other words, what the learned Judge means is that the application filed under Section 5 of the Act has no independent existence of its own. But, the learned Judge missed the crucial point that the application under Section 5 of the Act is intended to seek leave of the Court to file the application beyond limitation for the reasons set out in the application and if the Court finds sufficient justification for the party in not approaching
the Court within the time prescribed the Court is bound to exercise the discretion vested in it and condone the delay in filing the application which is a mandate of the statute. Then only, the Court is entitled to go into the merits and demerits of the application filed under Order IX Rule 13 CPC and pass orders. In other words, when an application under Order IX Rule 13 of CPC is filed beyond the period of limitation along with the application to condone the delay, the Court is not expected to consider the merits and demerits of the application filed under Order IX Rule 13 of CPC without condoning the delay in filing the application. From this it is seen that the considerations that will weigh with the Court arc altogether different and distinct while considering the application filed under Section 5 of the Act as well as under Order IX Rule 13 CPC and one has nothing to do with the other.
18. Summarising the above discussion, it can be safely concluded that disposal of an application under Section 5 of the Act is itself an independent act on the part of the Court and the order passed by the Court gives rise to a fresh cause of action to the party affected adversely to approach either the appellate Forum or the revisional Forum as provided under the Code. Hence, it cannot be said that a party, whose application for condonation of the delay in filing the application under the provisions of the Code is left with no remedy available under law to correct the illegality or irregularity committed by the Court below.
19. Hence, for all the above reasons, I cannot subscribe to the view taken by my learned brother.
20. The next question before me is whether I have to refer the matter to a Bench in view of my disagreement with the reasoning given by my learned brother.
21. I have given my considered thought to the above and I feel that the judgment was
rendered without reference to the relevant provisions of the statute and runs counter to the intention of the Legislature. Hence, without referring the matter to Bench, I proceeded to decide the case on merits.
22. Hence, following the preponderant view of the superior Courts, I hold that only a revision petition shall lie under Section 115 of CPC against the order dismissing an application filed under Section 5 of the Act but not an appeal as held by this Court in Divisional Engineer (Operations) APSEB’s case (supra).
23. Now, coming to the merits of the case, the petitioner categorically stated that the Counsel engaged by him expired on 28-6-1994 and thereafter the Court did not give any notice to the petitioner before setting him ex parte or before proceeding further with the case and he has no knowledge of the Court proceedings. This fact was not denied by the respondents. That being the factual position, the learned Subordinate Judge misdirected himself in dismissing the application by holding that the application under Order IX Rule 13 of CPC is not maintainable as the order passed by his predecessor is on merits.
24. Hence, I have no hesitation to set aside the order dismissing the application. Consequently the delay in filing the application is condoned and the civil revision petition is allowed with costs. Advocate fee is fixed at Rs.500/-.
25. As the suit is of the year 1990, the Court below shall number the application filed under Order IX Rule 13 of CPC and dispose of the same without any further loss of time at any rate within three months from the date of receipt of a copy of this order.
