This is defendants second appeal under section 100,C.P.C. arising out of the suit filed for permanent injunction as well as cancellation of sale deed executed in favour of defendant-appellants. The suit was decreed ex parte vide order dated 1.11.2014. Subsequently, an application under Order 9 Rule 13 CPC was filed for setting aside the ex parte decree. The ground taken for setting aside the ex parte decree was that the ex parte decree came to the knowledge of the defendant-appellants on 13.12.2014. The said application was supported by an application under Section 5 of the Limitation Act. The application filed under Section 5 of the Limitation Act was rejected and consequently the application under Order 9 Rule 13 was also rejected vide order dated 31.3.2015 by the trial court. After exhausting said remedy, the defendant-appellants filed an appeal under Section 96, C.P.C. alongwith an application for condonation of delay under Section 5 of the Limitation Act on 4.4.2015. The said application was supported by an affidavit and the explanation given was to the effect that the ex parte decree came into knowledge of the defendant on 13.12.2014, thereafter they pursued the application for setting aside the ex parte decree under Order 9 Rule 13, which ultimately was rejected on 31.3.2015 and thereafter within 4 days, the appeal was filed along with delay condonation application on 4.4.2015. The plaintiff has not contested the said application and has not filed any counter affidavit to the Section 5 application. The lower appellate court vide judgment and decree dated 23.1.2016 rejected the said application and consequently, the appeal was also dismissed. The order passed by the lower appellate court dated 23.1.2016 rejecting the Section 5 application of the Limitation Act as well as the judgment and decree dated 1.11.2014 of the trial court are impugned in the present appeal.
I have heard Sri Pradeep Kumar Verma, learned counsel for the appellants and Sri Bhola Nath Verma, learned counsel appearing on behalf of plaintiff-respondent Ist set.
This appeal was admitted on 4.4.2016 on the following substantial question of law:
"1. Whether the impugned order dated 23.1.2016 passed by first appellate court without considering the period spent during pendency of restoration application, misc. case no. 34 of 2014 before the trial court, is erroneous and perverse ? If so, its effect ?"
The contention of learned counsel for the appellants is that the court below court has committed illegality while taking hyper-technical view in considering the application for condonation of delay, although, the delay has properly been explained by the appellants in the affidavit filed in support of delay condonation application. It is submitted that after the knowledge of the ex parte decree on 13.12.2014, the application for setting aside the ex parte decree was filed, which was rejected on 31.3.2015 and immediately thereafter the appeal under Section 96 of CPC was filed on 4.4.2015.
It is further contended by learned counsel for the appellants that appellant-defendants are entitled to be extended the benefit of Section 14 of the Limitation Act i.e. the time spent in the proceeding under Order 9 Rule 13, should be excluded in computing the limitation. In support of his contention, the learned counsel for the appellants has placed reliance upon the judgment of the Apex Court in the case of J. Kumardasan Nair and Another Vs. Iric Sohan and Others, 2009 (12) SCC 175.
Per contra, learned counsel appearing on behalf of the respondents argued that the delay has not properly been explained by the defendants and even the provisions of Section 14 of the Limitation Act are not attracted in the present case. In support of his contention, he placed reliance upon the judgment rendered by a Division Bench of Calcutta High Court in the case of William Jacks and Co. (India) Ltd. Vs. Sm. Sumitra Sen, (1984) AIR (Calcutta) 12.
I have considered the rival submissions and perused the record.
The contention of learned counsel for the appellants is that the delay has properly been explained in the affidavit filed in support of Section 5 application, but the court below has not considered the contents of the affidavit and has taken a hyper-technical view that the delay has not been explained by the defendant-appellants and it has even touched the merit of the case by recording the finding that the appellants have rightly been served with the summons although it was not open for the lower appellate court to record such a finding while considering the explanation given for condonation of delay in filing of the appeal.
It is true that effectively the provisions of Section 14 of the Limitation Act are not applicable in excluding the time spent in the proceeding under Order 9 Rule 13 of CPC. But as held by the Apex Court in the case of J. Kumardasan Nair (supra), the provisions of section 5 and 14 of the Limitation Act alike, should be applied in a broad based manner and not with a pedantic approach. The Apex Court has further ruled in the said decision that when sub section (2) of Section 14 of the Limitation Act, per se is not applicable, the same would not mean that the principles analogous and akin thereto, would not be applied. For ready reference, relevant paragraph no. 16,17 & 18 of the decision in J. Kumardasan Nair case (supra), are quoted hereinbelow :
"16. The provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief where a person has committed some mistake. The provisions of Sections 5 and 14 of the Limitation Act alike should, thus, be applied in a broadbased manner. When sub-section (2) of Section 14 of the Limitation Act per se is not applicable, the same would not mean that the principles akin thereto would not be applied. Otherwise, the provisions of Section 5 of the Limitation Act would apply. There cannot be any doubt whatsoever that the same would be applicable to a case of this nature.
"17. There cannot furthermore be any doubt whatsoever that having regard to the definition of "suit" as contained in Section 2(l) of the Limitation Act, a revision application will not answer the said description. But, although the provisions of Section 14 of the Limitation Act per se are not applicable, in our opinion, the principles thereof would be applicable for the purpose of condonation of delay in filing an appeal or a revision application in terms of Section 5 thereof.
18. It is also now a well-settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. While exercising its power, the court will merely consider whether it has the source to exercise such power or not. The court will not apply the beneficent provisions like Sections 5 and 14 of the Limitation Act in a pedantic manner. When the provisions are meant to apply and in fact found to be applicable to the facts and circumstances of a case, in our opinion, there is no reason as to why the court will refuse to apply the same only because a wrong provision has been mentioned. In a case of this nature, sub-section (2) of Section 14 of the Limitation Act per se may not be applicable, but, as indicated hereinbefore, the principles thereof would be applicable for the purpose of condonation of delay in terms of Section 5 thereof."
While in William Jacks and Co. Ltd. case (supra), the Calcutta High Court has taken a view that if a remedy under Order 9,Rule 13, C.P.C. is available in law and when pursued had failed on its merit, it cannot furnish the basis for invoking the principles underlying section 14 of the Limitation Act.
Upon consideration of the submissions as raised by the learned counsel for the parties and the decisions relied upon by them, in the opinion of this Court, as per the Apex Court decision though the provisions of Section 14 of the Limitation Act are not applicable to exclude the time spent in the proceeding under Order 9 Rule 13, yet the principles analogous to the Section 14 of the Limitation Act would be applicable for the purpose of condonation of delay in terms of section 5.
In this view of the matter, the lower court appears to have committed illegality in taking a hyper-technical view while passing the impugned order. Accordingly, the substantial question as framed by the Court is answered to the effect that even though the provisions of Section 14 of the Limitation Act are not applicable, the principles analogous to the said provisions can be applied for the purpose of excluding the time spent in proceedings under Order 9 Rule 13 and thus the impugned order passed by the lower appellate court is erroneous in the facts and circumstances of the case.
In the result, the present appeal is allowed. The impugned judgement and decree dated 23.1.2016 passed by the Additional District Judge, Court No. 6, Bareilly in Civil Appeal No. 87 of 2015 is set aside, the delay in filing of the appeal is condoned and the matter is remitted to the lower appellate court for deciding the appeal on merits in accordance with law as expeditiously as possible.
Order Date :- 20.12.2018 Noman