Taro Devi & Ors. v. Ashok Kumar & Ors.

permanent prohibitory injunction restraining the defendants, including Sh. Jagat Ram, from interfering or asserting any claims regarding the property in question. The suit was decreed ex parte on 29.09.2001.

04. The suit was decreed ex parte in favor of the respondent/plaintiff. The ex parte proceedings were initiated as the defendants failed to appear despite being duly served. Against the decree passed on 29.09.2001, the petitioners/defendants filed an application to set aside the ex parte decree on 24.10.2002. Since this application was beyond the prescribed time limitation, an application for condonation of delay was also filed. The trial court decided the application by its order dated 22.07.2008, which reads as follows: “The question that needs to be addressed is whether applicants was duly served in the main suit. If so, whether he has explained the delay in filing this application? The record of file reveals that the suit was filed on 16-05-1997 and summons were issued to the defendants therein, including the applicant. The minutes of the proceedings reveal that the summons were ordered to be issued several times. On 20-02-1998, the defendants were ordered to be summoned through registered post; accordingly, summons through registered post were posted on 27.02.1998. The registered cover sent to the address of applicant was returned with the remarks "refused" recorded by the postman in ink. The entry on the other side of the envelope "not met" bearing date as 20-03-1998, however, the same date recorded on the other side of the envelope shows that the very first number is overwritten by using some other pen of dark blue ink. It seems that in the record there is tampering in the date on the other side which needs to be probed separately, having been made afterwards purposely to falsify this report of refusal recorded by the postman. As such, there is no substance in CR No. 05/2018 c/w SWP No. 489/2017 the argument of LC for the applicant that at no point of time he was offered the summons, since the record clearly belies his contention. The next contention of the LC for applicant is that he did not read the newspaper in which the notice was published, being an illiterate person. It needs to be pointed out at the very outset that the applicant, who could have actually thrown light on this factual contention, was bedridden at the time of filing of this application, as per the contentions therein, and expired without stepping into the witness box. No other evidence, documentary or oral, has been produced on the point by applicants. Order 5 Rule 19 A(1) enables the civil court to issue summons and send the summons through registered post in addition to the ordinary mode. Sub Rule 2 further provides that when the postal article containing the summons is received back with the endorsement of the postal employees that defendants refused to take the delivery, the court declares the summons to have been duly served. Rule 20 of the same provides for the service by substitute mode. All that it lays down is that when the service is ordered to be made by publication, the newspaper should be a local daily having its circulation in the locality. As the record of the main file reveals, the court ordered the issuance of summons through registered post in addition to the service by ordinary mode. The registered letter was returned by the postman with the report of refusal, but despite that, the court did not declare the defendant/applicant to be duly served and instead made further order for publication notice in the local daily State Times. It is not the applicant’s case that the address given or the envelope was not correct or that the paper in which the notice was published was not having adequate circulation in the locality. It is also nowhere mentioned in the application that the applicant, being illiterate, could not read the newspaper. So, going by the requirements of the rules supra, it is clearly shown that the applicant was duly served. The next question for consideration is as to whether the applicant has explained the delay in presenting this application. It is borne from the record that the suit was decreed on 29th of September 2001, and the instant application was presented on 24-10-2002, i.e., after one year and 25 days approximately, whereas the limitation period for filing such an application is 30 days. No explanation has been given as to what prevented the applicant from filing this application during that period, so the submission of LC for the applicant that the applicant was not aware of the passing of the decree is not based upon the true position of facts as emerging out from the record. There is absolutely no explanation for the delay of about one year in filing the instant application, and in the absence of such, a long delay cannot be condoned. For the foregoing reasons, this application is dismissed and shall be consigned to records after its due compilation. The original file be sent back to record.”

05. The order passed by the trial court was challenged before this Court in Civil Revision No. 103/2008. The revision was decided on 10.12.2010, CR No. 05/2018 c/w SWP No. 489/2017 whereby the order of the trial court was upheld. The order dated

10.12.2010 reads as under: “8. In view of the above well-reasoned order, this Court does not find any sufficient force in the contentions and averments made in this application, including the paragraphs above-mentioned.

9. This Court has also had an opportunity to examine the records, including the application for condonation of delay.

10. For the sake of convenience, the application for condonation of delay, which has been placed before this Court, is quoted as follows: “1. That the Applicant was not served in the suit which was decreed on 29.9.2001. 2. That the Applicant got knowledge of the order on 11.10.2002 when his power of Attorney went to the Tehsildar for obtaining the compensation. 3. That the Applicant gained knowledge of the order on 11.10.2002 and applied through his power of Attorney to obtain a copy on 12.10.2002, which was issued on 16.10.2002. 4. That the present application is within limitation from the date of knowledge of the ex-parte decree. Prayer It is therefore most humbly prayed that the delay in filing the application for setting aside the ex-parte decree dated 29.9.2001 be condoned, as the application is within time from the date of knowledge.”

11. In consideration of the above, this Court is of the view that no illegality, perversity, or any jurisdictional error is apparent on the face of the impugned order warranting interference in revisional jurisdiction.

12. Accordingly, the revision petition stands dismissed.

13. Record be sent down forthwith.”

06. After the dismissal of the revision petition and the upholding of the trial court's order, the petitioner filed a Special Leave Petition (SLP), which was also dismissed by the Hon’ble Supreme Court on 11.11.2013. Having failed before the trial court under Order 9 Rule 13, in the Civil Revision before this Court, and in the SLP before the Hon’ble Supreme Court, the petitioner, seeking to avail the remedy of appeal, filed an CR No. 05/2018 c/w SWP No. 489/2017 appeal before the first appellate court. As the appeal was time-barred, an application for condonation of delay was also filed. The appellate court, while considering the application for condonation of delay, dismissed the same on the grounds that the petitioner had not adequately explained the delay of one year and 25 days from the passing of the ex parte decree until the filing of the application to set aside the decree and consequently, the application was dismissed, and the appeal was also dismissed as time- barred. The relevant portion of the order passed by the appellate court reads as under: “10. From the bare perusal of application for condonation of delay and evidence led by the applicants, it is manifestly clear that the only ground taken by the applicants for condonation of delay is that the applicants pursued remedy under Order 9 Rule 13 CPC and therefore, exclusion is sought under Section 14 of Limitation Act. However, Division Bench of our own Hon’ble High Court in case M/s Dhani Ram Vs M/s Indian Tourism Dev. Corporation & Ors (supra) has held in Para No.5 and 6 as under:- ‘The grounds taken and the submissions made, in our view, are misconceived and misdirected. It should be taken well settled by now that Section 14 in terms does not apply in computing the period of limitation of an appeal. This is clear from the text of the provision iteself clauses (1) & (2) of which significantly omit the Appeal from its purview and specifically make it applicable only to a suit and an application. The relevant portion of these clauses is extracted as hereunder:- 14(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with the dilligence another civil proceeding..." (2) In computing the period of limitation prescribed for any application, the time during which the applicant had been prosecuting with due diligence another civil proceeding.." A bare perusal of these provisions goes to show that the Appeal is specifically excluded from their purview. Holding otherwise would be to re-write these provisions and to provide for which was not intended by the legislation. CR No. 05/2018 c/w SWP No. 489/2017

6. Mr. Gupta's submission that the appeal is the continuation of a suit may be correct in the provisions of the Limitation Act where such provisions are not specifically applicable when a segregation and the Act itself makes categorisation of the types of proceedings. This would be clear from the three different divisions contained in Ist Schedule appended to the Stae Act as also from its substantive provisions making clear distinction between the Suits, Appeals and Applications. If Mr. Gukpta's contension was to be accepted, the provisions relating to suits would ipso facto become applicable to Appeals rendering the provisions regarding Appeals redundant. This surely is not the intent and scheme of the Act."

11. From the perusal of above judgment, it is clear that the provisions of section 14 of Limitation Act are not applicable to the appels. Though, learned counsel for the applicants have relied on the judgment of Punjab & Haryana High Court as referred herein-above, but in case of conflicting opinions of the two High Courts the judgment of High Court to which the Trial Court or First Appellate Court as this court in this case subordinate to, is applicable. Otherwise also, the judgment of the Punjab & Haryana High Court relied by the applicants is of Hon’ble Single Judge whereas, the judgment relied upon by the non-applicants is not only of our own Hon’ble High Court but also of Division Bench and therefore, admittedly the judgment of our own Hon’ble High Court is applicable in the present facts and circumstances, and applying the ratio of judgment, plea of the applicants seeking exclusion of the period consumed by them for pursuing remedy under Order 9 Rule 13 CPC is not tenable. 12. Once section 14 of Limitation Act is held to be not applicable, admittedly, the appeal is hopelessly time barred as it has been filed after more than 12 years from the date of passing of impugned judgment and decree. 13. Assuming that the exclusion of period under section 14 of Limitation Act as sought is available to the applicants, still the said period is admittedly from 24.10.2002 to 11.11.2013 i.e. the period during which the proceedings arising out of application under Order 9 Rule 13 CPC remained pending. However, the impugned judgment and decree came to be passed on 29.09.2001 and therefore, the intervening period till filing of the application under Order 9 Rule 13 CPC i.e. 24.10.2002, which is about 01 year and 25 days needs to be explained by the applicants to seek condonation of delay and consequently for entertaining the appeal. 14. A bare perusal of application would show that there is not even a whisper to explain such delay and rather the only mention made in the application is that since the applicant was pursuing the remedy obviously under Order 9 Rule 13 CPC, delay is required to be condoned without any explanation as to the earlier period between passing of impugned judgment and decree and filing of application under Order 9 Rule 13 CPC. Therefore, application on the face of it does not disclose any cause to condone such delay or in other words, there is not even a mention plaintiffs/applicants to file appeal within period of limitation after to what prevented application CR No. 05/2018 c/w SWP No. 489/2017 passing of impugned judgment and decree. However, learned counsel submitted during the course of arguments that since the applicants were not duly served they had no notice of the pendency of the suit and therefore, the limitation starts from the date of their knowledge on the basis of which they filed application under Order 9 Rule 13 CPC and same ground is to be considered for explanation of that period in the application and consequently the appeal in hand also. 15. Ld. Counsel appearing for the non-applicants would submit on the other hand that, since the plea of non-service of notice and consequently gaining knowledge of the suit and impugned judgment by the applicants as being taken here has already been considered by Courts right from Sub Judge to Hon’ble Supreme Court and has been rejected by all the courts, same plea is not available to the applicants again in the proceedings in hand. 16. It is true that similar plea has been turned down by the learned in an application under Order 9 Rule 13 CPC and Sub Judge subsequently by the Hon’ble High Court in revision and review petitions filed by the applicants herein and even Hon’ble Supreme Court in SLP filed by them, but I am not convinced with the argument of learned counsel for the non-applicants that the same plea cannot be taken again in the proceedings in hand. Here, the applicants have approached by way of first appeal and therefore, the court has to re-appreciate the factual aspect of the case to judge the legality of impugned judgment on facts but as observed above, such plea does not find it’s mention i application for condonation of delay itself requiring consideration thereof. 17. Assuming that, even in the absence of an averment in the application, the plea can be taken during the course of arguments as admittedly it finds mention in the memo of appeal, still I am of the considered opinion that the applicants have failed to show sufficient cause preventing them to file an appeal within the statutory period from the date of impugned judgment and decree. Perusal of Trial Court record reveals that the learned Trial Court received back the registered cover containing summon to the defendant No.3 i.e. husband of the applicant No.1 herein with the endorsement "Refused" and though the learned court could have proceeded ex-parte on the said report only, but as a precautionary measure, the learned Trial Court appears to have gone further to issue publicati, copy of which annexed with the record, shows that the notice was duly advertised in local daily newspaper "State Times" and therefore, service was affected in accordance with the relevant provisions of Order 5 CPC and after recording due satisfaction, publication came to be issued, but despite such publication and service, appearance was not caused and therefore, obviously the court below had no other option except to proceed ex-parte. Mere statements of applicants that service was not effected contrary to the proved record are not sufficient to prove that the applicants or their predecessor-in-interest Jagat Ram was not in know of suit and consequently impugned judgment and decree. Statement of Postman Balwant Raj also does not help the applicants as he has made a general and hypothical statement as to the procedure for delivery of registered A.D without reference to the status of this case. Therefore, in the given CR No. 05/2018 c/w SWP No. 489/2017 circumstances, even if the applicants are allowed to be heard on the merits of the ground taken in the appeal as far as explanation as to the delay in filing the appeal is concerned, they have failed to show sufficient cause preventing them to file the appeal within the statutory period so-as- to entitle them the condonation of delay by invoking provisions contained in section 5 of Limitation Act. The applicants, therefore, failed on this count also. 18. Hence, in view of discussion made herein-above, I am of the considered opinion that the applicants/appellants have miserably failed to make out ground for extension of period of limitation or condonation of delay for filing the appeal and therefore, application in hand is dismissed as a consequence of which the appeal also stands dismissed as time barred. Lower court record be sent back along-with copy of this order. Application along-with appeal file be consigned to records after due compilation.”

07. In the revision petition filed by the petitioner, he has once again raised grounds regarding service and the orders and judgments passed in other proceedings, on the basis of which he seeks to set aside the ex parte decree passed by the trial court. Since the remedy of revision is not available, he has filed an application seeking conversion of this revision petition into a Civil Second Appeal. The grounds stated in the application are as follows: “10. That the counsel for the petitioners was under the impression that where the application for condonation of delay in filing the appeal has been dismissed, the consequent dismissal of the appeal would only be an incidental order and, therefore, not amount to a decree, meaning that a further appeal against such order would not be maintainable, and only a Civil Revision would be permissible. As a matter of fact, the aforesaid proposition of law was settled by the Hon’ble Supreme Court in the case titled Rattan Singh v. Vijay Singh and Others, reported in AIR 2001 SC 279. The counsel for the petitioners obtained the citation of the said case from the AIR manual. Based on the strength of the aforesaid judgment by the Hon’ble Supreme Court, the above-titled revision petition was filed.

11. That the counsel for the respondents, however, has cited and referred to another judgment of the Hon’ble Supreme Court in AIR 2005 CR No. 05/2018 c/w SWP No. 489/2017 SC 226, whereby it was held that the law settled by the Hon’ble Supreme Court in Rattan Singh v. Vijay Singh and Others did not lay down the correct law on the aforesaid question. In other words, the law settled by the Hon’ble Supreme Court in Rattan Singh v. Vijay Singh was overruled by a larger Bench in the case reported in AIR 2005 SC 226. It is submitted that the aforesaid judgment was not noticed by the counsel for the petitioners, nor was it referenced in the AIR manual where the case reported in AIR 2001 SC 279 had been mentioned.

12. That in the facts and circumstances of the case, the counsel for the petitioners, bonafidely decided to file the revision petition.

13. That it is pertinent to mention here that even the learned 2nd Additional District Judge, Jammu, while dismissing the application for condonation of delay vide judgment and order dated 23-9-2017, had not passed the decree.

14. That, in the facts and circumstances of the case, the revision petition deserves to be converted to Civil Second Appeal.”

08. In the application, the petitioners submit that in the revision petition, which they seek to be treated as a Civil Second Appeal, the following substantial questions of law are involved: “(i) Whether after dismissal of the application filed under Order 9 Rule 13 CPC for condonation of delay in filing the appeal, an appeal filed under Section 96 (2) CPC against the exparte decree dated 29-9-2001 is maintainable? (ii) Whether the time spend in the proceedings to set aside the exparte decree including the appeal and SLP be taken as "sufficient cause" within the meaning of section 5 of the Limitation Act so as to condone the delay in preferring the first appeal? (iii) whether two endorsements, one as "refused" and other "not met", both dated 20-3-1998 made on the acknowledgement due for appearance in the suit on 20-3-1998 itself could be said due service of the defendant? CR No. 05/2018 c/w SWP No. 489/2017 (iv) whether in terms of Rule 17 of order 5 of CPC, it was mandatory that the copy of the summons should have been affixed on the outer door and other conspicuous part of the house in which the defendant reside? (v) whether the respondent No. 1 and her husband could be allowed to misuse the process of court by filing a civil suit after losing the legal proceedings filed before the revenue court and civil court? As submitted above, the date in the trial court was fixed on 20-3-1998 and two contradictory endorsements i.e. "refused" and "not met" were also made on 20-3-1998. The said acknowledge due was received thereafter by the trial court and on the basis of the said contradictory reports, the mode of substitute service was adopted. In the facts and circumstances of the case, the substantial question arises. (v) That the mode of substitute service could be adopted only when the court is satisfied that the defendant has deliberately avoided the service of the summons.

09. On these grounds, the petitioners seek conversion of the civil revision into a Civil Second Appeal. The question whether a revision can be converted into a Civil Second Appeal is answered in affirmative. In ‘Om Prakash and others vs. Dwarka Prasad and others’, 2005 AIR (Madhya Pradesh) 40, it was held in Paragraph 15 of the judgment, which is relevant and reproduced as under: “15. However, in the case of Food Corporation of India (supra) it is held that in view of the amendment in Section 102 of the Code, second appeal was not maintainable being the suit valued less than Rs. 25000/-. Though the appeal was filed before 1-7-2002, it is held that second appeal was not maintainable. Further it is held that appeal cannot be converted into revision as the scope of both the sections is different. It may be mentioned that the Apex Court while considering the question of conversion of revision into second appeal has considered the question that revision can be converted into second appeal, CR No. 05/2018 c/w SWP No. 489/2017 substantial question of law arise in the case. However, while converting appeal into revision, question of substantial question of law will not arise. It is true I that scope of appeal and revision is different, but the Courts have been permitting conversion of appeal into revision and revision into appeal. Therefore, rigid view that appeal cannot be converted into revision or vice versa will not be in the interest of justice. A litigant cannot be penalized on account of technical error or mistake committed by the counsel. To meet the ends of justice, revision can be converted into appeal or appeal can be converted into revision while exercising the discretion and if the following norms are fulfilled, then normally order of conversion of revision in to appeal or appeal into revision should be passed : (i) When revision is converted into second appeal, then before passing the order of conversion, it is to be considered whether substantial question of law arises in the said case, if no substantial question of law arises in the case, revision cannot be converted into second appeal. (ii) Revision can be converted into appeal if same is filed within time and there is no impediment of limitation. Limitation must be construed from the date of filing of the revision petition or appeal. If the revision or appeal so filed was within limitation, for conversion into appeal or revision, it is to be examined that the appeal or revision, as the case may be, so filed, on the date of institution, was within the limitation and if so, said permission can be granted. (iii) There is no period of limitation for applying such conversion, but while exercising the powers of conversion, the Court would keep in mind whether appeal or revision, as the case may be, had been instituted within the period prescribed for such proceedings.

10. The key question to consider is whether substantial questions of law are involved in this case. If such questions are present, the revision may be converted into an appeal. It is also necessary that the appeal is filed within the prescribed time limit, and limitation for filing of appeal is to be seen upto filing of revision. In evaluating the revision petition at hand, it CR No. 05/2018 c/w SWP No. 489/2017 must be determined whether it was filed within the period provided for appeal. If there is a delay, the delay must be explained, and, if sufficient cause is shown, it could be condoned. In this case, the issues to address are whether the revision was filed on time and, if not, whether there is sufficient cause for the delay, as well as whether substantial questions of law are involved for determination. It is relevant to note that the ex parte decree was passed on 29th September, 2001 and an application to set aside the decree was filed under Order 9 Rule 13. There was a delay of 1 year and 25 days in filing the appeal, and at the time the ex parte proceedings were initiated, the trial court observed that the defendants/petitioners were duly served, though this service was disputed by the petitioners.

11. The trial court, while addressing the application, dismissed the same and also denied the request of the petitioners to condone the delay in filing the petition. The question with regard to service, raised by the defendant/appellant, was considered in the revision petition filed by the petitioner/defendant, and this Court, in a detailed judgment, upheld the trial court's order. Accordingly, the revisional court did not overturn the finding regarding service on the defendant/appellant and dismissed the revision petition.

12. The trial court's finding, upheld by the High Court in the revision, was subsequently challenged in an SLP, which was also dismissed. Consequently, the question of service on the appellant/petitioner has been conclusively resolved and cannot be re-examined in this petition.

13. With respect to the proceedings initiated by the defendant under Order 9 Rule 13, the revision petition filed before this Court, and the SLP CR No. 05/2018 c/w SWP No. 489/2017 filed before the Supreme Court, the time so spent on these proceedings can be excluded in view of the judgments, rendered by the Hon’ble Supreme Court, including N. Mohan vs. R. Madhu, 2020 (1) R.C.R. (Civil) 384; Ratan Singh vs. Vijay Singh and others, (2001) 1 SCC 469; Bhivchandra Shankar More vs. Balu Gangaram More and others, 2019 (3) R.C.R. (Civil) 123; and Koushik Mutually Aided Cooperative Housing Society vs. Ameena Begum and another, JKJ Online 83251.

14. While addressing the application for condonation of delay, the appellate court observed that the time spent in filing the application under Order 9 Rule 13, the revision petition in this Court, and the SLP before the Hon’ble Supreme Court could be excluded, as supported by the judgments cited above. However, regarding the period between the passing of the ex parte decree and the filing of the application under Order 9 Rule 13, the appellate court noted that this period had not been explained. There is no mention of this period in the application for condonation of delay.

15. Concerning this period, the explanation provided by the petitioner has already been considered. The petitioners have relied on the argument that they were not duly served, however, this contention has been rejected up to the Hon’ble Supreme Court, and this finding cannot be reopened or re-evaluated regarding whether service was duly effected.

16. Regarding the substantial questions of law, it is to be determined whether such questions arise in this appeal. Only if such questions are present, the revision can be treated as a Civil Second Appeal because a Civil Second Appeal would be maintainable only on substantial questions CR No. 05/2018 c/w SWP No. 489/2017 of law. The Hon’ble Supreme Court addressed the nature of a substantial question of law in ‘Chandrabhan (deceased) through LRs and others vs. Saraswati and others’, 2002 SCC OnLine SC 1273, Paragraphs 29 and 30 of which reads as under: “29. In Hero Vinoth v. Seshammal6, this Court followed Sir Chunilal v. Mehta & Sons (supra) and other judgments and summarized the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law.

30. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out herein below: “21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying “question of law”, means of having substance, essential, real, of sound worth, important or 4 AIR 1962 SC 1314 5 AIR 1951 Mad 969 6 (2006) 5 SCC 545 considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta 55IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : CR No. 05/2018 c/w SWP No. 489/2017 (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) “*W+hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.”

17. Regarding the first question proposed by the appellant, there is no dispute that an appeal under Section 96(2) CPC is permissible against an ex parte decree even after a petition under Order 9 Rule 13 CPC is dismissed. This fact is not in dispute and has been upheld in the judgments cited above. Therefore, this question cannot be considered a substantial question of law, as it has already been addressed in the judgments mentioned. The second question concerns whether the time spent in proceedings to set aside the ex parte decree, including the appeal and SLP, constitutes sufficient cause under Section 5 of the Limitation Act to justify condoning the delay in filing the first appeal. Again, this question is not a substantial question of law, as it has been established in the above-referred judgments that such time constitutes sufficient cause and that this period may be condoned. The first appellate court, while addressing this issue in Paragraph 13, has observed as under: “13. Assuming that the exclusion of period under Section 14 of Limitation Act as sought is available to the applicants, still the said period is admittedly from 24.10.2002 to 11.11.2013, i.e., the period during which the proceedings arising out of the application under Order CR No. 05/2018 c/w SWP No. 489/2017 9 Rule 13 CPC remained pending. However, the impugned judgment and decree came to be passed on 29.09.2001 and therefore, the intervening period till filing of the application under Order 9 Rule 13 CPC, i.e., 24.10.2002, which is about 01 year and 25 days needs to be explained by the applicants to seek condonation of delay and consequently for entertaining the appeal.”

18. This observation makes it clear that the appeal in question was filed beyond the period of limitation. Even if the period spent in prosecuting the petition under Order 9 Rule 13 up to the Supreme Court is excluded, the appeal remains barred by limitation because the appellant has not explained the delay from the passing of the ex parte decree until the filing of the application under Order 9 Rule 13.

19. Once the period spent in prosecuting proceedings under Order 9 Rule 13 up to the Supreme Court is excluded to maintain the appeal, the appellant must show that the appeal was within the time limit on the day he instituted proceedings under Order 9 Rule 13. Therefore, the period requiring explanation is from the date the ex parte decree was passed until the filing of the application under Order 9 Rule 13.

20. Learned counsel contends that the delay in filing the appeal should be condoned for the period from the passing of the decree until the filing of the application under Order 9 Rule 13. To support his contention, he has relied upon the judgments in ‘Koushik Mutually Aided Cooperative Housing Society vs. Ameena Begum and another’, JKJ Online 83251, and ‘Bhivchandra Shankar More vs. Balu Gangaram More and others’, 2019 (3) R.C.R. (Civil) 123. CR No. 05/2018 c/w SWP No. 489/2017

21. I have gone through these judgments, which do not apply to the present case under the given circumstances. The question of whether the appellant was served in the civil suit proceedings resulting in the ex parte decree was addressed by the trial court, the High Court, and upheld by the Supreme Court. Once the finding regarding service has been affirmed up to the Supreme Court, it cannot be reconsidered. Only if the initial delay of 1 year and 25 days, is adequately explained the appeal could have been considered maintainable. However, the trial court, the High Court, and the Supreme Court did not favor the petitioner’s explanation for this period. Therefore, this explanation, already addressed by the Supreme Court, cannot be revisited. There remains an unexplained delay in filing the appeal. The appellate court has duly considered all the relevant facts and circumstances of the case and returned the finding that the delay in filing the appeal was not explained, therefore, dismissed the same as barred by limitation.

22. In light of the principle that a revision can be treated as a Civil Second Appeal if substantial questions of law arise in the case, it is necessary to consider the proposed questions. Regarding questions (iii) to (v), which are suggested as substantial questions of law, these issues have already been thoroughly examined by the trial court and the revisional court, and the findings in those orders cannot now be reopened.

23. Therefore, for the reasons stated hereinabove, it is held that the application filed by the petitioner for conversion of the revision into Civil Second Appeal is without any merit because there are no substantial questions of law involved in the case and the questions proposed by the petitioner in the application as substantial questions of law do not arise in this petition. CR No. 05/2018 c/w SWP No. 489/2017

24. In view of the above, this petition is without any merit and the same is accordingly dismissed. (Vinod Chatterji Koul) Judge Jammu: 25.11.2024 Michal Sharma/PS Whether approved for reporting : Yes/No Michal Sharma 2024.11.27 15.52 I attest to the accuracy and integrity of this document Jammu