Karnataka High Court
C.E. Nagarathnamma vs Abdul Gafoor Sab on 15 February, 1989
Equivalent citations: ILR1989KAR1052, 1989(3)KARLJ82
ORDER 9 Rule 9 - Appeal under Order 43 Rule 1(c) lies not revision even if application disposed of on preliminary point. vide: Headnote supra (B) LIMITATION ACT, 1963 (Central Act No. 36 of 1963) - Section 5 - Applying and obtaining certified copies bonafide, sufficient cause for condoning delay. The appellant had in fact applied for certified copy of the order within two days of the pronouncement of the order of dismissal and obtained the same on 21-11-1987. Therefore this itself should be construed as sufficient cause for condoning the delay and she must be deemed to have been held bona fide to have waited for obtaining the certified copies. The trial Court was therefore not justified in finding that she wanted some how to circum vent the provisions of law particularly of Section 12 of the Limitation Act....The Court below was not justified in rejecting the application for condonation of delay and consequently dismissing the petition itself as barred by time. JUDGMENT Hiremath, J.
1. P. Misc. No. 131/85 before the trial Court of the Civil Judge at Shimoga came to be dismissed for default on 19-9-1987 and that was an application for permission to sue as in indigent person filed by the present appellant. On 9-12-1987 she filed an application in Misc. Case No. 131/85 before the same Court for setting aside the order of dismissal under Order IX Rule 9 C.P.C. Obviously this was beyond the period of 30 days fixed for filing such application under Order IX Rule 9 C.P.C. Along with that an Interlocutory Application also came to be filed under Section 5 of the Limitation Act to condone the delay in filing the said application.
2. In support of this application, in the affidavit two grounds were stated as constituting sufficient cause for condonation of delay. In the first instance the applicant stated that she came to know about the order on 21-9-1987. Her Counsel advised to obtain certified copies of the order. She applied for the same and copies were obtained on 21-11-1987. Immediately thereafter this petition came to be filed. As far as the cause for not being present on the date of hearing she made an averment in the application that she was ailing with heart trouble, she could not attend the Court and the adjournment sought for by her Counsel was rejected. This Is how she was prevented from being present In Court on the date of hearing.
3. The trial Court in the first instance held the provisions of Section 12 of the Limitation Act are not applicable inasmuch as no certified copy of the order was required to be filed along with the application under Order IX Rule 9 CPC. It observed that Sub-section (2) applies only for an appeal or an application for leave to appeal or for revision or for review of a Judgment and hence Section 12 is out of question. When this was so it disposed of the Interlocutory Application holding that when the same is the ground invoking Section 5 of the Limitation Act, it cannot be considered as a sufficient cause to condone the delay. In its opinion it was only to otherwise circumvent the provision of law which was not applicable. Having so rejected the application under Section 5 of the Limitation Act, it dismissed the petition itself as barred by time. It is this order that is now challenged in this appeal.
4. The learned Counsel for the appellant though conceded that Section 12 of the Limitation Act does not go to the aid of the appellant herein urged that the Court ought to have considered the same cause under Section 5 of the Limitation Act as constituting sufficient cause when Order IX Rule 15 CPC makes the said provision clearly applicable even to applications of this nature. Learned Counsel for the respondents at the outset contended that appeal cannot lie against the impugned order inasmuch as it is not considered on merits but only dismissed as barred by time while rejecting the application under Section 5 of the Limitation Act. Therefore the revision alone could have been a proper course open to the appellant herein.
5. To substantiate this argument my attention has been drawn to a decision of this Court in the case of KANAJI MOORARJl AND ORS. v. SRIPATI VENKATARAMANA HEGDE 1979(1) KLJ 249 wherein the provisions of Sections 100, 115 and Order 41 Rule 4 CPC were considered. Though Section 5 of the Limitation Act was not directly in question and the appeal was disposed of as having abated the Court held that the decision was not a decree passed on appeal within Section 100 of CPC for admitting of an appeal and hence a revision was maintainable. Reliance was placed on the decision of the Supreme Court In the case of S. KALAWATI v. DURGA PRASAD AND ANR . The learned Judges observed that after the pronouncement of the Supreme Court in this case it must be taken to be settled that a "decision in appeal" would imply that the Court had dealt judicially with the decision of the Court below after entertaining the appeal and delivered a Judgment thereafter. The expression 'entertaining' an appeal would, having regard to the pronouncement of the Supreme Court in Katavati's case, import the idea of the Appellate Court judicially dealing with the subject matter of the appeal and delivering Judgment, and therefore, a decision on the basis of which an appeal is virtually excluded from being even admitted to consideration cannot connote the idea of its having been 'entertained'.
6. Therefore, according to Sri. Shivaraj Patil learned Counsel for respondents the application under Order IX Rule 9 was not disposed of on merits but only on a preliminary issue of limitation and therefore this decision is attracted. It is unnecessary to refer to the reasoning adopted in this case to see whether the argument advanced in this behalf Is tenable. What this Court has to consider at this stage is whether the Interpretation given to the term 'entertained' in this decision should be enlarged even to an 'order' passed under Order IX Rule 9 CPC against which an appeal is provided under Order 43 Rule 1(c) CPC. It says that an appeal shall lie from the following Orders under the provisions of Section 104, namely, among others an order under Rule IX of Order 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. It is undisputed that even where the application that was pending before the Court below for permission to sue as indigent person was dismissed for default attracts this provision under Order 43 Rule 1(c) CPC. Section 104 provides for appeals from order and subsection 1(1) attracts any order made under Rules from which appeal is expressly allowed by Rules provided that no appeal shall lie against any orders specified in clause (ff) etc. What this Court as well as the Supreme Court considered in cases referred to above was there was affirmance of the decree or otherwise having entertained the appeal when the same was disposed of on a preliminary point that was raised before them. No such distinction could be made in the instant case Inasmuch as the appeal Is provided under Order 43 not against a decree but only against on "order" which has been passed on any grounds whatsoever. There Is no question of "entertaining" the application as such to which there is reference in the argument of the learned Counsel for respondents that the application has not been decided on merits. In my view even if the application was disposed of on the preliminary point it cannot be said that it is not an appealable order not falling under Order 43 and only a revision petition lies. This is how I reject the preliminary objection raised on behalf of the respondents.
7. Taking the grounds urged in support of application under Section 5 of the Limitation Act, learned Counsel for the appellant Mr. Veerabhadrappa has urged that even though Section 12 cannot be held to be applicable the same should be considered constituting sufficient cause for the condonation of delay as the appellant has sworn that she was advised by her Counsel to obtain certified copies of the orders and then to file an appeal. In this behalf he has drawn an analogy from the case Of PALGHAT MUNICIPAL COUNCIL BY THE COMMISSIONER v. NATIONAL MOTOR WORKS LTD . in which the Court Interpreted the words "sufficient cause". In that case the existence of circumstances mentioned in Section 14 of the Limitation Act were pressed as grounds to constitute sufficient cause in applying for condonation of delay. The learned Judge observed that the words "sufficient cause" under Section must be liberally construed so as to advance substantial justice particularly when no negligence nor inaction nor want of bona fides is imputable to the applicant. The existence of circumstances mentioned in Section 14 is sufficient ground for excusing the delay under Section 5. In that case the petitioner had presented an appeal to the High Court within time under a bona fide belief that appeal lay only to the High Court and the High Court in returning the appeal for proper presentation remarked that there was no bona fide doubt In the view of the petitioner in thinking that the High Court was the proper Court for entertaining the appeal and the appeal was presented to the District Court which was the proper Court with an application under Section 5. Here also it is not disputed that the appellant In fact had applied for certified copy of the order within two days of the pronouncement of the order of dismissal and obtained: he same on 21-11-1987. Therefore this itself should be construed as sufficient cause for condoning the delay as she must deemed to have been held bona fide to have waited for obtaining the certified copies. The trial Court was therefore not justified in finding that she wanted some how to circumvent the provisions of law particularly of Section 12 of the Limitation Act. In view of this admitted position of she applying for certified copy and obtaining them no such intention of circumventing the provision of law somehow can be inferred. In that view of the matter I hold that the Court below was not justified in rejecting the application for condonation of delay and consequently dismissing the petition itself as barred by time.
8. What is now left is whether there was sufficient cause that prevented the appellant from being present in Court on the date the application P. Misc. 131/85 was posted for hearing. It is stated that the Report from the Deputy Commissioner was received by the Court below that she has sufficient means to pay Court fee. In the face of this Report it was Incumbent on the appellant to satisfy the Court below that she was possessed of no means to pay Court fee. While arguing this appeal the respondent's Counsel also invited my attention to the composite Order that was passed while dismissing the P. Misc. 131/85 namely that the plaint also was rejected. This according to him would amount to a decree which could be challenged only in an appeal and therefore no purpose would be served even if that application is considered on merits. It is not possible to accede to this argument for the reason that undoubtedly the Court passed the order of rejection of plaint in the same order by which it dismissed the application C. Misc. 131/85 for default. This obviously means that there were no independent orders and the proper course for the Court could have been to fix a date for payment of Court fee in case it found that the appellant was not an indigent person. Rightly or wrongly the order of rejection of the plaint flowed as a consequence of the order of dismissal of P. Misc. 131/85 for default. Therefore in case the dismissal of the application for default were not to survive on considering other grounds it is of little consequence that the Court also rejected the plaint. When the main order gets disturbed consequential order automatically vanishes. Therefore there cannot be an impediment to independently consider the Miscellaneous case 276/87. As the Court below dismissed the application only on preliminary point of limitation as it states so in its very order there, is no material for this Court to act upon to disturb the order that is passed by the Court below. Therefore, the only alternative left for this Court is to set aside the order under appeal and remit Misc.276/87 to the Court below to consider it on merits by taking evidence if any and dispose of the application.