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RaziuddIn Mohd. Siddiqui and anr. Vs. Zaihab Khatoon and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberCMP Nos. 7201 and 7780 of 2002 in CCCA (SR) No. 27145 of 2003 and CMP No. 14874 of 2002 in CCCA (SR)
Judge
Reported in2004(6)ALD564; 2004(6)ALT658; 2005(1)CTC179; [2005(2)JCR31(AP)]
ActsLimitation Act, 1963 - Sections 5 and 14; Code of Civil Procedure (CPC) , 1908 - Sections 96(2) - Order 9, Rule 13
AppellantRaziuddIn Mohd. Siddiqui and anr.
RespondentZaihab Khatoon and anr.
Appellant AdvocateT.S. Anand, Adv. in CMP No. 7201 of 2002, ;K.V. Subrahmanya Narsu, ;in CMP No. 7780 of 2002, ;Vedula Venkata Ramana, ;in CMP No. 14874 of 2002 and
Respondent AdvocateT.S. Anand, Adv. in CMP No. 7780 of 2002, ;K.V. Subrahmanya Narsu, Adv. in CMP No. 7201 of 2002 and ;K. Somakonda Reddy, Adv. for Respondent Nos.1 to 4 in CMP No. 14874 of 2002
Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....devinder gupta, c.j. 1. a division bench of this court by its order dated 26.4.2002 passed in cmp no. 7201 of 2002 in ccca (sr) no. 27145 of 2002 did not agree with the view expressed and the law laid down by a division bench of this court in chandrapalaka prabhakar v. chandrapalaka sadanandam, : 1997(4)alt689 , which in its turn had followed the decision of another division bench of this court in jokam reddy and ors. v. gokar mallaiah, : air1977ap367 , and thus referred the matter to a larger bench for an authoritative pronouncement.2. when this bench was constituted, we noticed in our order dated 27.8.2004 that though no question had been formulated by the division bench, reference by the division bench was on two counts, namely, (1) as to the applicability of section 14 of the.....
Judgment:

Devinder Gupta, C.J.

1. A Division Bench of this Court by its order dated 26.4.2002 passed in CMP No. 7201 of 2002 in CCCA (SR) No. 27145 of 2002 did not agree with the view expressed and the law laid down by a Division Bench of this Court in Chandrapalaka Prabhakar v. Chandrapalaka Sadanandam, : 1997(4)ALT689 , which in its turn had followed the decision of another Division Bench of this Court in Jokam Reddy and Ors. v. Gokar Mallaiah, : AIR1977AP367 , and thus referred the matter to a Larger Bench for an authoritative pronouncement.

2. When this Bench was constituted, we noticed in our order dated 27.8.2004 that though no question had been formulated by the Division Bench, reference by the Division Bench was on two counts, namely, (1) as to the applicability of Section 14 of the Limitation Act, 1963 to an application filed seeking condonation of delay in filing appeal against ex parte decree, when such an appeal is filed after dismissal of an application filed under Order IX, Rule 13 of the Code of Civil Procedure and, (2) as regards the maintainability of appeal filed against the ex parte decree under Section 96 of the Code of Civil Procedure after dismissal of application under Order IX, Rule 13 of the Code.

3. In order to appreciate the questions arising for determination, facts-in-brief may be stated: Respondents are the plaintiffs and the appellants-petitioners are the defendants. Plaintiffs filed the suit for specific performance of an agreement of sale. The defendants remain absent despite service of summons. On 4.8.1994, ex parte decree was passed. Defendants filed an application under Order IX, Rule 13 of the Code for setting aside the ex parte decree along with an application under Section 5 of the Limitation Act seeking condonation of delay in late filing of the said application. Application seeking condonation of delay was dismissed on 14.8.1997. Feeling aggrieved, revision petition was filed which was allowed on 26.4.2001 subject to payment of costs. Defendants' application for setting aside the ex parte decree was then considered on merits but was dismissed by the lower Court. Against the said order, an appeal was preferred which was dismissed on 4.4.2002. After dismissal of the appeal, a regular appeal was filed on 8.4.2002 under Section 96 of the Code of Civil Procedure by the defendants against the ex parte decree along with an application (CMP.7201 of 2002) seeking condonation of delay in filing the appeal. The appeal is still at the SR stage (CCCA.(SR).No. 27145 of 2002). The delay was sought to be condoned on the ground that the defendants-petitioners had diligently been prosecuting the matter by filing an application under Order DC, Rule 13 of the Code. Though there was delay in filing the application under Order DC, Rule 13 of the Code, the same was condoned but the application filed under Order DC, Rule 13 of the Code was dismissed on merits and appeal (CMA.No. 119 of 2002) filed against the said order was also dismissed on 4.4.2002. Appeal under Section 96 of the Code was filed on 8.4.2002. Therefore, the period from 22nd October, 1994, the date on which the application under Order DC, Rule 13 of the Code was filed to 4.4.2002, the date on which the application filed under Order DC, Rule 13 of the Code was dismissed, was sought to be excluded on the ground that defendants-petitioners had diligently been prosecuting the matter, there was no delay or in any case the delay be condoned.

4. When the application came up before the learned Division Bench, it was argued by the learned Counsel for the appellants that in case the period from 22.10.1994 to 4.4.2002 is excluded from computation, there is no delay in filing the appeal since it was liable to be excluded under Section 14 of the Limitation Act. In the alternative, it was urged that if there is delay the same is liable to be condoned since the defendants had been prosecuting their remedy before a different forum. In support of this plea, reliance was placed on an earlier decision of a Division Bench of this Court in Jokam Reddy's case (supra) urging that the Division Bench had held that while deciding an application under Order DC, Rule 13 of the Code, Court has to see as to whether there was sufficient cause by which the defendant was prevented from attending the Court and, if the Court is satisfied that sufficient cause has been made out, ex parte decree has to be set aside, whereas in an appeal filed under Section 96 of the Code, the Court has to decide the issue on facts as well as on law. Therefore, two remedies are available to a defendant concurrently. Though Section 14 of the Limitation Act was held to be not applicable, but reliance was placed on Prabhakar's case (supra), which in turn had placed reliance on Jokam Reddy's case and held that the time spent in prosecuting the other remedies has to be excluded under Section 14 of the Limitation Act. The Referring Division Bench expressed its doubt on the correctness of the view expressed by the later Division Bench in Prabhakar's case (supra) saying that the Division Bench in Jokam Reddy's case had specifically laid down that Section 14 of the Limitation Act had no application at all.

5. Since the dispute involved in the other appeal, namely, CCCA (SR) No. 57715 of 2002 is also similar to the one involved in CCCA (SR) No. 27145 of 2002, by order dated 14.7.2003, another Division Bench of this Court directed that the same be listed along with CCA(SR) No. 7145 of 2002 before the Full Bench after obtaining necessary orders from the Chief Justice. Hence the said case was also listed before us.

6. We heard the learned Counsel appearing for the parties in both the matters at length.

7. In Prabhakar's case, the plaintiff had challenged the order passed by the Trial Court in condoning the delay in filing appeal under Section 96 of the Code. The defendants had filed an application under Order IX, Rule 13 of the Code, which was dismissed by the Trial Court against which a revision was filed which was also dismissed. After dismissal of the revision, appeal was filed under Section 96 of the Code against the ex parte decree along with an application under Section 5 of the Limitation Act to condone the delay in filing the said application. The delay was condoned. Plaintiff preferred Letters Patent Appeal and in the said appeal Division Bench noticed the plaintiffs objection that a regular appeal under Section 96 of the Code and the remedy of filing an application under Order IX, Rule 13 of the Code are parallel remedies, and, as the defendant had availed of the remedy under Order IX, Rule 13 of the Code, the other remedy was not open to him. The Division Bench held that it finds no substance in the submission and the reason assigned was that under Order DC, Rule 13 of the Code, Court has to see existence or otherwise of sufficient cause for non-appearance on the date when he was proceeded ex parte by the Court; whereas, in an appeal filed under Section 96 of the Code, what is required to be seen by the Court is, whether decree impugned is or is not in accordance with law. It was thus held that both remedies are open to a defendant in a suit who had suffered an ex parte decree.

8. On the second question in Prabhakar's case, the submission of the plaintiff was that the period spent by a defendant in pursuing the application under Order DC, Rule 13 of the Code, and, in prosecuting the Civil Revision Petition in High Court, could not be excluded under Section 14 of the Limitation Act. This submission was also turned down by the Division Bench and the reason assigned was that the Division Bench in Jokam Reddy's case had held that a defendant was entitled to exclude the period spent in prosecuting the application filed under Order DC Rule 13 of the Code and the Civil Revision Petition for the purpose of computing the limitation for filing an appeal.

9. With due respect to the Judges comprising the Division Bench in Prabhakar's case, the Referring Bench was of the view that the conclusion arrived at by the Division Bench that a defendant was entitled to exclude the period spent in prosecuting the application filed under Order DC, Rule 13 of the Code and the Civil Revision Petition for the purpose of computing limitation for filing an appeal was as a result of misreading of the judgment in Jokam Reddy's case.

10. In Jokam Reddy 's case defendant's application under Order DC, Rule 13 of the Code was dismissed by the Trial Court. Keeping quiet for a month the defendant applied for copies of ex parte decree and then presented an appeal under Section 96 of the Code, against the ex parte decree with a petition to condone the delay in filing the appeal. Learned Single Judge accepted the contention of the plaintiff in the said case that when two remedies were open to the affected party against an ex parte decree, if one remedy like filing a petition for setting aside the ex parte decree under Order DC, Rule 13 of the Code was adopted, the affected party cannot thereafter avail itself of the other remedy of preferring a regular appeal under Section 96 of the Code against the ex parte decree. Learned Single Judge had relied upon two decisions of the Calcutta High Court in Chandra Rai Chowdary v. M. Thangini Dessi, ILR (1895) 23 Calcutta 325 and Rajendranath Kanrar v. Kamal Krishna Kundu Chowdary, AIR 1932 Cal. 558. Learned Single Judge also held that the explanation offered by the defendant-petitioner seeking condonation of delay in filing the appeal was untenable and accordingly dismissed the application filed under Section 5 of the Limitation Act. In these circumstances, Letters Patent Appeal was preferred. The Division Bench on the point of applicability of Section 14 of the Limitation Act, upheld the submission of the learned Counsel for the plaintiffs that Section 14 of the Limitation Act had no application in such circumstances, saying:

The exclusion of the time postulated by Section 14 can be made only when the other proceeding has been taken in a Court which, from effect of jurisdiction or other cause of a like nature, was unable to entertain it. Such is not the case here. The appellants were perfectly entitled under the law to file petition under Order IX, Rule 13 C.P.C. to set aside the ex parte decree and the Court had jurisdiction to entertain the same and also to grant it if it was satisfied that the defendants were prevented by sufficient cause from appearing when the ex parte decree was passed. Likewise, this High Court had power and jurisdiction to entertain the Civil Miscellaneous Appeal No. 199/74 preferred by the appellants. When this Court dismissed it, it did not dismiss it for reasons of lack of jurisdiction or other cause of a like nature but because it was not satisfied that there was sufficient cause for the defendants' absence when the ex parte decree was passed. Therefore, to invoke Section 14 to the circumstances of the case is wholly untenable.

11. After holding that Section 14 of the Limitation Act had no application, the Bench further held that when Section 14 does not apply to any particular proceeding, the fact that the aggrieved party bona fide had been prosecuting the proceeding may be considered, in the circumstances of each case, as a sufficient cause for condoning the delay under Section 5 of the Limitation Act and, on the facts of the said case, the Division Bench came to the conclusion that there was no sufficient cause made out to condone the delay, and, thus dismissed the Letters Patent Appeal and, for that reason, it did not express any opinion on the reasoning of the learned Single Judge on the other point that once the remedy had been availed of by the defendant by filing an application under Order IX, Rule 13 of the Code, and, having remained unsuccessful, the defendant cannot take recourse to the other remedy of filing a regular appeal.

12. Firstly, we will deal with the second question as noticed in Jokam Reddy 's case on the view expressed by the Learned Single Judge relying upon two decisions of the Calcutta High Court. As already noticed earlier, no view was expressed by the Division Bench in Jokam Reddy's case, but, in Ch. Prabhakar's case, the Division Bench did express a different view without any reasons that both remedies are open to the defendant in the suit who had suffered an ex parte decree. It is the correctness of the view in Ch. Prabhakar's case, which needs our consideration.

13. When Jokam Reddy's case was decided by the learned Single Judge, amendments were not carried out to the Code of Civil Procedure. By Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976), an explanation was inserted to Rule 13 of Order DC of Code of Civil Procedure with effect from 1st February, 1977. Rule 13 of Order DC of the Code after insertion of explanation by Amendment Act 104 of 1976 reads as under:

13. In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.

Explanation: Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

14. The aforesaid explanation was not noticed by the Division in Prabhakar's case. The objects and reasons for inserting the explanation as stated in Clause 62 of the Code of Civil Procedure Amendment Bill, which was originally introduced in Parliament reads as under:

Clause 62: Sub-clause (v): Rule 13 deals with setting aside of ex parte decree against defendants. A new proviso is being added to the rule to ensure that the Court should not set aside an ex parte decree merely on the ground of irregularity in the service of the summons in a case where the defendant had adequate notice of the date of hearing of the suit.

Sub-clause (vi): There is a divergence of judicial opinion [See Kantilal v. Chiba Bava, : AIR1967Bom310 ], Dhonai v. Tarhtnath, 12 Cal. LJ. 531, Kalaimuddin v. Esabakuddin, AIR 1924 Cal.830, Aliamma v. Ouseph, AIR 1954 Ker. L.T.322; Gaurishanker v. Jagar Narain, AIR 1934 All. 134; State of U.P. v. Mohamnmad Noor, 1959 SCR 595. Also see In re Venkatasubba Ramaiah, AIR 1944 Mad.576; In re Ram Rakhan, AIR 1945 All. 352] as to whether an ex parte decree can be set aside under Rule 13 after an appeal against such ex parte decree has been disposed of. An explanation is being added to the rule to clarify that an ex parte decree cannot be set aside under this rule when an appeal against such decree has been disposed of. (Statement of Objects and Reasons (Bill)-Gazette of India, Ext. dated 8.4.1974, Section 2, P.315)..

15. When the Code of Civil Procedure Amendment Bill was subsequently introduced in Parliament, the explanation proposed in the original Clause 62 of the Bill was modified pursuant to the report of the Joint Committee of the Parliament to achieve the desired object, and, the modified Explanation is reflected in Clause 59(2)(ii) of the Amendment Bill introduced in Parliament, which replaced the earlier Clause 62. It explained the objects and reasons for the insertion of the proposed Explanation to Rule 13 of Order DC of the Code, saying:

Clause: 59(2)(ii): (Original Clause 62): The proposed Explanation to Rule 13, as in the Bill, provides that where an appeal has been filed against a decree passed ex parte and the appeal has been disposed of, no application lie for setting aside that ex parte decree. The Committee feel that such a prohibition should not be made in a case where the appeal has been withdrawn. The scope of inquiry in an appeal against a decree passed ex parte being different from the scope of an application for setting aside a decree passed ex parte, the defendant should not be deprived of an opportunity of filing an application for setting aside the decree if he has withdrawn the appeal against the ex parte decree. The Committee does not. however, propose to extend the period of limitation so that the defendant, who may intend to file an application for setting aside the ex parte decree, should satisfy the requirements of the Limitation Act, 1963.

The Explanation as proposed in the Bill has, therefore, been amended to achieve the said object. (Report of the Joint Committee-Gazette of India. Ext. dated 1.4.1976, Part. II, Section 2 P.804/13).

16. Learned Counsel for the plaintiffs while making his submissions urged that the second question has now been fully answered by the Supreme Court in Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, : [1983]1SCR372 , which has been followed in P. Kiran Kumar v. A.S. Khadar and Ors., : [2002]3SCR775 . He submitted that the effect of the explanation added to Rule 13 of Order IX of the Code was duly considered in Rani Choudhury's case. It was held that though a defendant intending to avoid an ex parte decree could apply to the Trial Court for setting aside and could also appeal to a superior Court against it prior to the explanation added by the Code of Civil Procedure Amendment Act, 1976 and both the remedies could be availed, but the amendment was brought about by Legislature with the avowed purpose of abridging and simplifying the procedural law by leaving it open to the defendant to apply under Order IX, Rule 13 of the Code for setting aside the ex parte decree only if he had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The explanation obliges the defendant to decide, whether he would prefer adjudication by the Appellate Court on the merits of the decree or have the decree set aside by the Trial Court under Order IX, Rule 13 of the Code. It was held that the legislative attempt incorporated in the explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he had chosen to file an appeal in the first instance and did not withdraw the same, but allowed the appeal to be disposed on any other ground, he was denied the right to apply under Order DC, Rule 13 of the Code. In other words, disposal of the appeal on any ground whatsoever apart from withdrawal, constitute sufficient reason for bringing the ban of availing the other remedy of avoiding decree by having it set aside under Order IX, Rule 13 of the Code.

17. The aforementioned view in Rani Choudhury's case was expressed in the main judgment written by R.S. Pathak, J. The other Hon'ble Judge comprising the Bench of the Apex Court, Amarendra Nath Sen, J took the same view but recorded separate reasons. Kiran Kumar's case reiterated the view expressed in Rani Choudhruy's case.

18. In Rani Choudhury's case as well as in Kiran Kumar's case the aggrieved defendant in order to get rid of the ex part decree had availed of the remedy of preferring an appeal as also application under Order IX, Rule 13 of the Code. The appeal was disposed of before the application filed under Order IX, Rule 13 of the Code could be taken up for consideration. Therefore, the question arising for determination in both the cases was about the impact of the explanation added to Rule 13 of Order IX of the Code by Code of Civil Procedure Amendment Act, 1976. Converse case was not before the Supreme Court i.e., in the event of a defendant either simultaneously or separately availing of the two remedies of filing an application under Order IX, Rule 13 of the Code and preferring an appeal under Section 96 of Code of Civil Procedure against the ex parte decree. Whether the defendant could continue to prosecute an appeal filed under Section 96 of the Code against the ex parte decree after the application under Order IX, Rule 13 of the Code had been dismissed or could he after dismissal of the application under Order IX, Rule 13 of the Code prefer an appeal under Section 96 of the Code along with an application seeking condonation of delay is the question which arises for consideration.

19. This question precisely came up for consideration before the Madhya Pradesh High Court in Sumera v. Madanlal and Ors., : AIR1989MP224 . The Division Bench of the Madhya Pradesh High Court observed that in view of the decision of the Supreme Court in Rani Choudhuty 's case, 'we are tied hands and feet to say anything further in the matter' that when the defendant had already availed of the relief contemplated under Order IX, Rule 13 of the Code and exhausted the remedy to challenge the ex parte decree, the petition seeking condonation of delay in filing appeal was not maintainable. However, it clarified that if any subsequent judgment of the Supreme Court clarifies the position or modify the law in any manner, it would be open to the defendant-petitioner therein to apply for review of the order. As the application seeking condonation of delay had been dismissed, the appeal itself was held to be not maintainable in view of Rani Choudhury's case.

20. Later on, a Full Bench of the Madhya Pradesh High Court in Smt. Archana Kumar and Anr. v. Purendu Prakash Mukherjee and Anr., : AIR2000MP279 , overruled the decision of Division Bench in Sumera 's case and came to the conclusion that Rani Choudhury's case does not lay down that once an application under Order IX, Rule 13 of the Code is rejected, a regular appeal under Section 96(2) of the Code is not maintainable. It was held that even after dismissal of the application under Order IX, Rule 13 of the Code, a regular first appeal under Section 96 of the Code against the ex parte decree is maintainable. It was also held that the proceedings under Order DC, Rule 13 of the Code and a regular appeal under Section 96 can simultaneously be prosecuted and it would be open for the affected party to pray for stay of further proceedings in an appeal till the application under Order IX, Rule 13 of the Code is decided.

21. Reference before the Full Bench of Madhya Pradesh High Court in Smt. Archna Kumar's case was made when doubts were expressed about the correctness of the decision rendered by the Division Bench of the same High Court in Sumera's case (supra) pertaining to the issue that after dismissal of application under Order IX Rule 13 of the Code, whether an appeal could lie under Section 96(2) of the Code assailing the judgment and decree on merits.

22. In Sumera's case, the Division Bench of the Madhya Pradesh High Court had quoted passage from the decision in Rani Choudhury's case and thereafter made its observations that they were bound by what had been observed in Rani Choudhury's case in the quoted portion, and, for that reason held that a regular appeal was not maintainable after an application under Order IX, Rule 13 of the Code had been dismissed. The Full Bench of the Madhya Pradesh High Court examined the question which had arisen for consideration in Rani Chodhury's case saying that the question arising for consideration was about the maintainability of an application under Order DC, Rule 13 of the Code after an appeal filed under Section 96(2) of the Code against the ex parte judgment and decree had been dismissed on any ground whatsoever because of the operation of the explanation introduced by Code of Civil Procedure Amendment Act, 1976, and, in that view of the matter, concluded that the Supreme Court was not in seisin with regard to the maintainability of an appeal under Section 96(2) of the Code after dismissal of the application filed under Order DC, Rule 13 of the Code.

23. Learned Counsel for plaintiffs before us submitted that even if the observations of the Supreme Court in Rani Chodhury's case on the question of maintainability of the appeal under Section 96(2) of the Code after dismissal of application under Order IX, Rule 13 of the Code are taken as obiter, even in that case, obiter of the Supreme Court is binding, and, it must be held that the appeal is not maintainable after an application under Order DC, Rule 13 of the Code has been dismissed. We cannot subscribe to this view propounded by the learned Counsel for the plaintiffs.

24. It is general principle of law that a decision ordinarily is a decision on the facts of a case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. While applying a binding decision or a binding precedent to a later case, the Court dealing with it, is expected to carefully ascertain the principles laid down in the previous decision. A decision often takes its colour from the question involved in the case in which it was referred. Scope and authority of a binding precedent can never be expanded unnecessarily beyond the needs of a given situation. The effect of a binding precedent on a subsequent case coming up is the applicability of the principle upon which the case was decided. Mere casual expressions made without reference to the context cannot be said to be principles laid down having the nature of a binding character. Equally good is the principle that judgment of a Court is not to be interpreted like a statute where every word or sentence has to be given a literal meaning and no word is to be ignored. Observations made in the course of the judgment have to be understood in the context of the facts and contentions raised in the particular case.

25. The Constitution Bench of the Supreme Court in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of India, : [1971]3SCR9 , held that a clause or a sentence occurring in a judgment of the Supreme Court divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment is not a ratio and is not binding.

26. Another Constitution Bench of the Apex Court in Additional District Magistrate, Jabalpur v. Shivakant Shukla, : 1976CriLJ945 , reiterated that an obiter cannot take the place of the ratio. In that case, strong reliance was placed on behalf of the detenus on certain observations made in the earlier majority judgment of the Supreme Court in Makan Singh v. State of Punjab, : 1964CriLJ217 , on the question, as to what were the pleas available to a detenu in challenging the legality or propriety of his detention, despite the Presidential Order dated 3.11.1962. The Constitution Bench held that the said question was not in issue before the Court in Makan Singh's case and did not fall to be decided and the said observations, which were being relied upon by the detenu were made by the Court on the question were clearly obiter, and accordingly held that though obiter would be entitled to be given great weight, but, is not binding and thus reiterated the principles laid down in A.D.M. Jabalpur's case that obiter cannot take the place of the ratio and the observations do not have binding effect and cannot be regarded as conclusive on the point. The Constitution Bench further observed that it must be remembered that when observations of a high judicial authority like the Supreme Court have to be construed, greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit. It was further observed that it is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent cases their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regards the case in hand.

27. We need not multiply decisions on these points, but suffice it to say that these principles have clearly been applied by Supreme Court in subsequent decisions in P. Kiran Kumar's case (supra), Islamic Academy of Education v. State of Karnataka, : AIR2003SC3724 , Divisional Controller, KSRTC v. V. Mahadeva Shetty, : AIR2003SC4172 , Kasar Devi v. Union of India and Ors., : 2003CriLJ3750 and Aswani Kumar Singh v. U.P. Public Service Commission and Ors., AIR 2003 2661.

28. In P. Kiran Kumar's case (supra) the proposition of law as laid down in Rani Choudhury's case has been explained as under:

Reading of the Explanation to Order 9, Rule 13 clearly indicates that if any appeal against an ex parte decree had been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex parte decree under Order 9, Rule 13 CPC would be entertained. The words of the explanation are clear and unambiguous. They clearly indicate and suggest that if an appeal has been preferred and the same had been dismissed on any ground other than the withdrawal of the appeal, the same would cause a bar to the filing of the application under Order 9, Rule 13 CPC for setting aside the ex parte decree. The position of law on this point is discussed in Para 15 of the judgment in Rani Choudhury's case. It has been observed that on a proper interpretation of the explanation, if an appeal against an ex parte decree has been filed and the appeal has been dismissed on any ground other than dismissed as withdrawn, then the application under Order 9, Rule 13 CPC would not be maintainable and cannot be entertained.

29. From a reading of the above passage, the ratio as has been culled out from Rani Choudhury's case in the light of the question arising for consideration before the Supreme Court in Rani Choudhury's case as regards the impact of explanation to Rule 13 of Order DC of the Code was that if an appeal against an ex parte decree has been disposed of on any ground whatsoever other than the ground of the appellant withdrawing the appeal, no application for setting aside the ex parte decree under Order DC, Rule 13 of the Code is maintainable. There is an avowed purpose in bringing amendment by inserting explanation to Order DC, Rule 13 of the Code and the intention of the Legislature is explained in Rani Chodudhury's case and reiterated in P. Kiran Kuamr's case only to the extent that if an appeal has been preferred against an ex parte decree and the same has been dismissed on any ground other than the withdrawal of the appeal, the same would cause a bar to the filing of an application under Order IX, Rule 13 of the Code or in continuing with such an application for setting aside the ex parte decree, in case it was still pending as on the date of the dismissal of the appeal. But, converse is not true and there is no embargo placed by the legislation, and, on that point, we are in full agreement with the ratio of the decision of the Madhya Pradesh High Court in Smt. Archana Kumar's case that even after dismissal of an application under Order IX, Rule 13 of the Code, a regular appeal under Section 96(2) of the Code is maintainable. Accordingly we answer the second question.

30. As regards the first question, the matter is squarely covered by the decision in Jokam Reddy 's case (supra) that Section 14 of Limitation Act, 1963 has no application in a case when an application is filed seeking condonation of delay in filing appeal against ex parte decree, when such an appeal is filed after dismissal of an application filed under Order DC, Rule 13 of the Code. We fully agree with the reasons assigned by the Division Bench in Jokam Reddy's case. As a matter of fact, the Division Bench in Ch. Prabhakar's case misread the judgment in Jokam Reddy's case on this point. Accordingly, we answer the first question.

31. We answer the reference as aforementioned. The matters may now be listed before the appropriate Bench for disposal on merits and in the light of the answer to the reference.


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