MAMTAZ & ORS. versus GULSUMA ALIAS KULUSUMA

MAMTAZ & ORS. versus GULSUMA ALIAS KULUSUMA

The High Court erred in proceeding to set aside the Trial Court's ex parte judgment and decree and deciding matters on merits where the First Appellate Court had dismissed the first appeal as barred by limitation for want of a condonation application; the correct course was to set aside the First Appellate Court's order (if found erroneous) and remit the matter to the First Appellate Court to revive and decide the condonation application (I.A. No.1 of 2020) and thereafter decide the appeal on merits. Accordingly the Supreme Court quashed the High Court judgment and remanded the matter to the First Appellate Court with directions to revive and decide the condonation application and then...

Parties
Original Plaintiffs / Appellants: MAMTAZ & ORS.; Respondent / Original Defendant: GULSUMA ALIAS KULUSUMA
Jurisdiction
India
Judgment Date
18 January 2022
Procedural Posture
Civil Appeal / Appeal to the Supreme Court From High Court Judgment in RSA No.200073 of 2021
Outcome
Appeal allowed in part; impugned High Court judgment and order dated 21.04.2021 quashed and set aside; matter remanded to the First Appellate Court.
Legal Topics
Ex Parte Decree, Set Aside Ex Parte Decree, Condonation of Delay, Order IX Rule 13 CPC, Section 96 CPC
Civil Procedure Code Limitation Appeal Ex Parte Decree Set Aside Ex Parte Decree Condonation of Delay Order IX Rule 13 CPC Section 96 CPC

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Parties

MAMTAZ & ORS.

Original Plaintiffs / Appellants

GULSUMA ALIAS KULUSUMA

Respondent / Original Defendant

Procedural Posture

Civil Appeal / Appeal to the Supreme Court From High Court Judgment in RSA No.200073 of 2021

Legal Issues

  1. 1 Whether the High Court correctly set aside the ex parte judgment and decree of the Trial Court when the First Appellate Court had dismissed the appeal as barred by limitation for want of a condonation application
  2. 2 Whether the High Court could proceed as if deciding an Order IX Rule 13 CPC application when the impugned order was an appeal under Section 96 CPC dismissed for delay
  3. 3 Whether the original defendant (respondent) could be permitted to revive a withdrawn application for condonation of delay (I.A. No.1 of 2020)

Ratio Decidendi

The High Court erred in proceeding to set aside the Trial Court's ex parte judgment and decree and deciding matters on merits where the First Appellate Court had dismissed the first appeal as barred by limitation for want of a condonation application; the correct course was to set aside the First Appellate Court's order (if found erroneous) and remit the matter to the First Appellate Court to revive and decide the condonation application (I.A. No.1 of 2020) and thereafter decide the appeal on merits. Accordingly the Supreme Court quashed the High Court judgment and remanded the matter to the First Appellate Court with directions to revive and decide the condonation application and then...

Court Disposition

Appeal allowed in part; impugned High Court judgment and order dated 21.04.2021 quashed and set aside; matter remanded to the First Appellate Court.

Orders

  • Impugned judgment and order of the High Court dated 21.04.2021 in RSA No.200073 of 2021 is quashed and set aside
  • The matter is remanded to the First Appellate Court and R.A. No.22 of 2020 is restored to its file