Case title: 

The Kaoushik Mutually Aided Cooperative Housing Society v. Ameena Begum & Anr

Date of Order: 

1st December 2023

Bench: 

Hon’ble Mrs. Justice B.V. Nagarathna

Hon’ble Mr. Justice Ujjal Bhuyan

Parties: 

Appellant(s): The Kaoushik Mutually Aided Cooperative Housing Society

Respondent(s): Ameena Begum & Anr
 

SUBJECT:

The Hon’ble Supreme Court (hereinafter referred to as ‘the Supreme Court’ or ‘the Court’) dealt with the issue of maintainability of an application filed under section 115 of CPC for condonation of delay in application. The Court dismissed the impugned order of the High Court and ruled in favour of the respondent. The Supreme Court held that the condonation, although not maintainable under section 115 of CPC, can be sought under Order XLIII Rule 1(d) of CPC.

IMPORTANT PROVISIONS:

The Code of Civil Procedure, 1908 (CPC):

• Order IX Rule 13
• Section 115
• Order XLIII Rule 1(d)

The Limitation Act, 1963 (TLA):

• Section 5

OVERVIEW:

• The appellants filed a lawsuit in 1988 seeking specific performance of the property sale in April, 1985.
• The court passed an ex-parte agreement when the respondents did not appear before the court.
• The respondent filed an application in 2016. seeking to annul the judgment under Order IX, Rule 13 of the CPC, with the request of condoning the delay in filing the application under section 5 of TLA.
• The trial court dismissed both pleas in 2018 on the grounds that the delay in application played a pivotal role in the judgment.
• The respondent filed a petition under section 115 of CPC against the trial court’s order in the High Court.
• The High Court ruled in favour of the respondents, setting aside the trial court’s ruling and condoned the delay in 2018.
• The Supreme Court is now dealing with the application against the High Court’s order, filed by the appellant.

ISSUES RAISED:

• Whether the application under section 115 of CPC is maintainable?
• Whether the delay can be condoned under Order XLIII Rule 1(d) of CPC?

ARGUMENTS ADVANCED BY THE APPELLANT:

• The Civil Revision Petition filed by the respondents should not have been entertained by the High Court.
• The fitting remedy should have been filed for under Order XLIII Rule 1(d) of CPC.
• The revision petition filed under section 115 is not maintainable when there is a specific provision for the said appeal.

ARGUMENTS ADVANCED BY THE RESPONDENT:

• The respondents were deprived of a sufficient chance to present their case when the ex-parte order given.
• The trial court had erred in dismissing the application seeking condonation of delay in filing their petition to set aside the ex-parte decree.

JUDGEMENT ANALYSIS:

• The respondent had filed the civil revision petition under section 115 of CPC, which was an inappropriate remedy, and the application was not maintainable.
• An alternative and more appropriate remedy would have an application filed under Order XLIII Rule 1(d) of CPC.
• The Apex Court overruled the High Court’s judgment and allowed the respondent the condoned delay in filing application.
• The Supreme Court directed the High Court to not raise the issue of limitation in the event a similar appeal is filed.
• Respondent no.1 was granted filing an appeal under Order XLIII Rule 1(d) of CPC before 31^st December by the Court.

CONCLUSION

In this judgment, the Supreme Court held that the respondent should be allowed the condonation in the delayed application under Order XLIII Rule 1(d) of CPC, overturning the order of the High Court. The Revision Petition under section 115 would not be maintainable. The Supreme Court further laid down directions for the High Court to not raise issues of limitation when if and when similar appeals are filed. Any appeals filed by the respondents were to be disposed of as per the directives of the Court.