The Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum & Another

Supreme Court of India · 2023 INSC 1065 · 2023

Coram: B.V. NAGARATHNA, UJJAL BHUYAN

ORDER 1. Leave granted. 2. Being aggrieved by order dated 08.01.2021 passed by the learned Single Judge of the High Court for the State of Telangana at Hyderabad in Civil Revision Petition No. 4866/2018, this appeal has been preferred. 3. We have heard Sri C. S. Vaidyanathan, learned senior counsel along with Sri Gopal Sankaranarayanan, learned senior counsel for the appellant and Sri Sajan Poovayya, learned senior counsel for the ﬁ rst respondent and 843 perused the material on record. The second respondent has been delet ed from the array of parties in terms of this Court’s Order dated 25.04.2023. 4. Brieﬂ y stated, the facts are that the appellant herein had ﬁ led O.S. No.1144/1988 on the ﬁ le of the V-Senior Civil Judge, City Civil Court, Hyderabad seeking a decree of speciﬁ c performance of an ag reement to sell dated 26.04.1985. In the said suit, the respondent(s) herein were set ex- parte. Thereafter, an ex-parte decree was passed on 15.02.1999. It is stated that execution proceedings as against the ex-parte decree are still pending before the Executing Court. However, the ﬁ rst respondent herein ﬁ led an application on 07.01.2016 seeking setting aside of ex-parte decree dated 15.02.1999 along with an application under Section 5 of the Limitation Act, 1963 seeking condonation of 5767 days delay in ﬁ ling the said application seeking setting aside of ex-parte decree. 5. By order dated 07.06.2018, the V-Senior Civil Judge, City Civil Court, Hyderabad dismissed I.A. No.30/2016 ﬁ led for seeking condonation of delay of 5767 days in ﬁ ling the application seeking setting aside of the ex-parte decree under Oder IX Rule 13 Code of Civil Procedure, 1908 (‘CPC’ for the sake of convenience). The said application was considered by the Trial Court and by order dated 07.06.2018, the application seeking condonation of delay was dismissed. Consequently, the petition ﬁ led under Order IX Rule 13 CPC seeking setting aside of the ex-parte decr ee also stood dismissed. 6. Being aggrieved, the ﬁ rst respondent herein ﬁ led a Civil Revision Petition under Section 115 of the CPC before the High Court contending that Trial Court was not right in dismissing the application seeking condonation of delay of 5767 days in ﬁ ling the petition to set aside the ex-parte decree dated 15.02.1999. 7. By the impugned order dated 08.01.2021, the High Co urt has set aside Order dated 07.06.2018 passed in I.A. No.30/2016 in O.S. No.1144/1988, which also implies that the petition ﬁ led under Order IX Rule 13 CPC which had also stood dismissed has been allowed. In the Civil Revision Petition, the High Court condoned the delay of 5767 days in ﬁ ling the petition ﬁ led under Order IX Rule 13 CPC seeking setting aside the ex- parte decree dated 15.02.1999 by directing the Trial Court to dispose of the petition ﬁ led under Order IX Rule 13 CPC and to complete the trial of the THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER suit expeditiously, within a period of four months from the date of receipt of certiﬁ ed copy of this order. 8. Being aggrieved by the said order passed in Civil Revision Petition by the High Court, the plaintiﬀ /appellant has preferred this appeal. As noted above, we have heard learned senior counse l for the respective parties and perused the material on record. 9. At the outset, this Court queried as to how a Civil Revision Petition was maintainable against an order passed by the Tria l Court dismissing the application ﬁ led seeking condonation of delay in ﬁ ling the petition under Order IX Rule 13 CPC and consequently rejecting or di smissing the said petition also. 10. During the course of submissions, it was noted that , in fact, the rejection of a petition ﬁ led under Order IX Rule 13 CPC is an appealable order and, therefore under Order XLIII Rule 1(d) CPC, an appeal ought to have been ﬁ led before the High Court rather than a Civil Revision Petition under Section 115 of the CPC. 11. For the sake of immediate reference, Order XLIII Rule 1(d) CPC is extracted as under in juxtaposition to Section 115 o f the CPC: “Order XLIII Rule 1. Appeal from orders – An appeal shall lie from the following orders under the provisions of section 104, namely:- (a) xxx (c) xxx (d) an order under rule 13 of Order IX rejecting an applica tion (in a case open to appeal) for an order to set aside a de cree passed ex- parte.” Section 115 – Revision. (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Cour t and in which no appeal lies thereto, and if such subordinate Court appears- a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or 845 (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thi nks ﬁ t: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have ﬁ nally disposed of the suit or other proceedings. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proc eeding before the Court except where such suit or other proceeding is staye d by the High Court. Explanation.—In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.” 12. As against the ex-parte decree, a defendant has three remedie s available to him. First, is by way of ﬁ ling an application under Order IX Rule 13 CPC seeking for setting aside ex-parte decree; the second, i s by way of ﬁ ling an appeal against the ex-parte decree under Section 96(2) of the CPC and the third, is by way of review before the same court aga inst the ex-parte decree. 13. The ﬁ ling of an application under Order IX Rule 13 CPC as well as the ﬁ ling of appeal under Section 96(2) of the CPC against the ex-parte decree are concurrent remedies available to a defendant. However, once the appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if an application ﬁ led under Order IX Rule 13 CPC is rejected, an appeal as against the ex-parte decree can be preferred and continued under Section 96(2) of the CPC. Thus, an appeal against an ex-parte decree even after the dismissal of an application u nder Order IX Rule 13 CPC is maintainable. THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER 14. In Bhanu Kumar Jain vs. Archana Kumar , AIR 2005 SC 626 : (2005) 1 SCC 787, speaking through Sinha, J. observed in paragraph 26 as under: “When an ex parte decree is passed, the defendant (apart from ﬁ ling a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to ﬁ le an appeal and another to ﬁ le an application for setting aside the order in terms of Order IX Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order IX Rule 13 of the Code a petition under Order IX Rule 13 would not be maintainable. However, the Explanati on I appended to the said provision does not suggest that the converse is also true.” 15. Against the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the decree passed ex-parte, an appeal is provided. When an application is ﬁ led seeking condonation of delay for seeking setting aside an ex-parte decree and the same is dismis sed and consequently, the petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable. Thus, an appeal only against the refusal to set aside the ex-parte decree is maintainable whereas if a n order allowing such an application is passed, the same is not appealable. 16. Thus, when an application or petition ﬁ led under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferr ing an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed. Thus, when an alternative and eﬀ ective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to ﬁ ling of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte. In view of the appellat e remedy under Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC ﬁ led in the instant case was not maintainable. 17. When there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passi ng the same, 847 a Revision Petition cannot be ﬁ led. It is needless to observe that in the absence of an appellate remedy, a revision may be maintainable. 18. It is clariﬁ ed that once the Trial Court dismissed the application seeking condonation of delay in ﬁ ling petition under Order IX Rule 13 CPC, and consequently, the main petition under Order IX Rule 13 CPC also stood dismissed which is also noted by the trial Court as “In the result, the petition is dismissed”. 19. Realising this aspect regarding the maintainability of a revi sion petition before the High Court, Sri Sajan Poovayya, learned senior counsel submitted that liberty may be reserved to the ﬁ rst respondent herein to ﬁ le an appeal and if such an appeal is ﬁ led within a time frame to be granted by this Court, the issue of limitation in ﬁ ling the appeal under Order XLIII Rule 1(d) CPC may not be raised by the High Court By way of response, Sri C. S. Vaidyanathan, learned senior counsel submitted that if the impugned order is set aside and liberty is reserved to the ﬁ rst respondent herein, the appellant may not be prejudiced by such an order. 20. In the circumstances, we set aside the impugned order on the ground that the said order was passed in a Civil Revision Petition which was not at all maintainable under Section 115 of the CPC. However, liberty is reserved to the ﬁ rst respondent herein to ﬁ le an appeal under Order XLIII Rule 1(d) CPC, if so advised, on or before 31.12.2023. 21. If such an appeal is ﬁ led before the High Court, the poin t of limitation ought not to be raised by the High Court. 22. It is needless to observe that the High Court shall dispose of the appeal to be ﬁ led by the ﬁ rst respondent herein in accordance with law. 23. All contentions on both sides are left open, to be advanced in the appeal to be ﬁ led before the High Court. 24. This Appeal is allowed and disposed of in the aforesaid terms. No costs. Pending application (s) shall stand disposed of.