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Supreme Court of India
Mamtaz vs Gulsuma Alias Kulusuma on 18 January, 2022Author: M.R. Shah

Bench: M.R. Shah, Sanjiv Khanna

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)

JUDGMENT

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
Signature Not Verified

Trial Court for fresh disposal in accordance with law, the original plaintiffs
Digitally signed by
Rajni Mukhi
Date: 2022.01.18
14:12:02 IST
Reason:

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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