ORDER
Y.B. Bhatt, J.
1. When this matter was called out for hearing learned counsel for the parties stated that the opponent No. 3 has expired. Learned counsel for the petitioner stated that a civil application to bring the heirs on record has been filed, but the same is not traceable. However, learned counsel for the parties agree that the only heirs of the deceased opponent No. 3 are her sons being respondents Nos. 1 and 2 herein. They also agree that respondents Nos. 1 and 2 may be shown as heirs of the deceased-respondent No. 3. It is accordingly directed that the respondents Nos. 1 and 2 be shown as heirs and legal representatives of deceased-respondent No. 3 and the cause title of this revision-application be amended accordingly,
2. The pertinent facts, in brief, leading to the present revision are as under :
3. The respondents herein as plaintiffs had filed Civil Suit No. 225/80 against the present application for a decree of eviction in respect of the suit premises rented out to the defendant, on the ground of arrears of rent and other grounds. Although the suit was contested, it appears that for certain reasons with which I am not concerned, the suit came to be decreed ex parte, by judgment and decree dated 21st January, 1984.
4. The petitioner-defendant, therefore, filed an application for setting aside the ex parte decree under Order 9, Rule 13 of C.P.C. This was Misc. Application No. 3/84, which came to be rejected on merits by the trial Court by its order dated 10th January, 1985. This order of rejection was then challenged by the present petitioner by filing Civil Misc. Appeal No. 11/85, apparently under Order 43, Rule 1 of C.P.C. This appeal was withdrawn. It is, therefore, obvious that the rejection order passed on Misc. Application No. 3/84, (whereby the Court which passed the decree refused to set aside the same on merits) accorded finality to the decree.
5. The defendant-judgment debtor thereafter decided to challenge the original decree by filing an appeal under Section 96 of CPC. This appeal was filed on 1st February, 1985, and since the same was filed much beyond the
period of limitation, an application to condone the delay was also filed on 11th February 1985, being Civil Misc. Application No. 69 of 1985. The said appeal and the condonation application was filed in the Court of District Judge, Kheda at Nadiad.
6. The application for condonation of delay in filing the appeal, being Civil Misc. Application No. 69/85 was rejected by the District Court by its judgment and order dated 4th August, 1983. The rejection of this application is challenged by the original defendant in the present revision.
7. The short question which requires consideration is whether the lower Court was justified in coming to the conclusion that no sufficient cause had been made out by the applicant of the application for condonation of delay.
8. Learned counsel for the petitioner has taken me in great detail through the application for condonation itself, as also the order passed below the same.
9. On a contained reading of the application for condonation, and the order passed below the same, and also on the basis of submissions made by the learned cousel for the petitioner, it becomes obvious that the only ground offered as constituting sufficient cause for condonation is that the defendant was pursuing the remedy available to him under Order 9, Rule 13, CPC (an application for setting aside the ex parte decree) and that until the said proceeding was completed and/or terminated, there was no occasion for the defendant to prefer an appeal. Thus, the defendant decided to file an appeal or made up his mind to prefer an appeal, only after the proceeding under Order 9, Rule 13 stood terminated against the defendant finally. This is also the sum and substance of the submissions made before me in the present revision. As an extension and/or modification of this submission it is also submitted that since the defendant was pursuing a wrong remedy under Order 9, Rule 13, the delay in preferring the appeal under Section 96, CPC, must be condoned on this ground, in the sense that time expended in pursuing a wrong remedy would constitute a sufficient cause for condoning the delay in filing the appeal.
10. To deal with this last mentioned contention first, the same is only required to be stated in order to be rejected. It is quite obvious that the defendant sought to have an ex parte decree set aside, by preferring an application specifically contemplated and specifically permissible under Order 9, Rule 13. This application was, therefore, a statutory remedy which was available to the defendant. In pursuing this remedy it cannot possibly be suggested that the other remedy available to the party (an appeal under Section 96 of CPC) was suspended, or that the same could be exercised at some later point of time in case the proceeding under Order 9, Rule 13 failed. There is absolutely no warrant for such a proposition.
11. I may also note here at this stage that the explanation to Order 9, Rule 13, specifically contemplates that after the ex parte decree which is sought to be set aside by making an application under Order 9, Rule 13, has already been challenged by way of an appeal, the application contemplated by Rule 13 would be barred. This specific provision made by the legislature clearly indicates that the remedy available to a party under Order 9, Rule 13 and the remedy available under Section 96 of CPC are certainly two different and distinct remedies, but are not intended to confer any right as to the exercise thereof in succession. They are in the nature of independent, but alternative remedies. If an appeal under Section 96 of the CPC has already been filed, the specific provision by way of an explanation of Rule 13 would bar an application under the said rule. To my mind it is equally clear that if an application under Order 9, Rule 13 is pursued, and the same ultimately fails, an appeal under Section 96 of CPC would also be barred. I, however, do not record this by way of laying down a proposition of law, inasmuch as the said question does not arise in the context of the facts of the present case. The maintainability or otherwise of the appeal under Section 96 of the CPC would be a relevant question, only after the delay is condoned; until then, such an appeal does not exist in the eye of law.
12. What is material is that the petitioner pleads that the delay in filing the appeal occurred merely because he was pursuing the statutory remedy in which he ultimately failed, the same would constitute sufficient ground for condonation of delay. As stated hereinabove, this contention must fail.
13. Some confusion has been created by submissions made by the learned counsel for the defendant before the lower appellate Court, and/or a misunderstanding on the part of the Court as regards the context in which such submissions were made. This submission pertains to sufficient cause being made out on account of “negligence on the part of the concerned lawyer”. After perusing the relevant material on record, learned counsel for the petitioner concedes that the “negligence of the lawyer” which is pleaded, pertains to the lawyer appearing in the original suit, and on account of negligence, the ex parte decree came to be passed. No negligence is attributed to the lawyer appearing in the application under Order 9, Rule 13. However, the negligence of the trial Court lawyer or otherwise, is not relevant in the present proceedings; it may perhaps have been relevant in the application under Order 9, Rule 13. It is certainly and admittedly not the case of the petitioner that there was any negligence on the part of the lawyer in preferring the appeal under Section 96, in respect of which the application for condonation of delay was filed.
14. Learned counsel for the petitioner has sought to rely upon various decisions and judicial pronouncements on the question of “sufficient cause” “wrong advice” and “negligence of counsel”. The decisions sought to be relied upon are AIR 1972 SC 749, 16 CLR 735 and 1994 (1) GLH 16 (para 12). Having considered the decisions sought to be relied upon by the learned counsel for the petitioner, I am of the opinion that the same are not relevant to the issue at hand. As already pointed out hereinabove, the question of “negligence of counsel” or “wrong advice” may at best be pertinent in the application made under Order 9, Rule 13, but admittedly no such allegation has been made as regards the
counsel who was dealing with the appeal under Section 96. These decisions are, therefore, of no assistance to the learned counsel for the petitioner.
15. In view of the above, the finding recorded by the lower Court to the effect that no sufficient cause has been made out for condoning the delay in preferring the appeal cannot be interfered with and consequently the revision must fail. The revision application is, therefore, rejected. Rule is discharged with no order as to costs, ad interim relief vacated.
16. At this stage learned counsel for the petitioner seeks time to vacate the premises. This request is strongly opposed by the learned counsel for the respondent. I am of the opinion that there is no justification for granting this request inasmuch as these proceedings do not arise from execution proceedings, which have already been filed. It is not open to this Court in the present revision under Section 115 of CPC to stay execution proceedings, particularly since the present revision does not arise from any order in execution proceedings. However, merely with a view to show some mercy to the petitioner, although there may not be any legal justification for the same, time is granted to vacate the premises in question (if the petitioner is actually in possession) up to 30th June, 1995.
