JUDGMENT V.C. Daga, J.
1. Heard learned Counsel for the petitioner.
2. None for the Respondent No. 1 inspite of service though Respondent No. 1 is the only contesting respondent.
3. When the matter was called out for final hearing on 25.1.2001 none appeared for the respondent No.1. In order to afford a reasonable opportunity to respondent No.1, though it was not necessary in view of proper service, however this Court by an order dated 25.1.2001 directed the learned Counsel appearing for the petitioner to issue telegraphic notice to respondent No. 1 intimating the next date of hearing.
4. Accordingly, notice was issued by the learned Counsel for the petitioner. He intimated next date of hearing as 31.1.2001. Accordingly, the matter was called out for final hearing on 31.1.2001.
5. Even on 31.1.2001, none appeared for respondent No. 1. Therefore, learned Counsel for the petitioner was again requested to issue fresh notice by Speed Post. Accordingly. 2nd notice was issued to respondent No.1. An affidavit showing issuance of notice along with acknowledgment evidencing receipt of the said notice are placed on record by the learned Counsel for the petitioner. Inspite of sufficient, proper and reasonable notice, none appeared for the respondent No.1, today when the matter was called out for final hearing.
6. In the above circumstances, the matter was heard finally without there being any assistance from the respondent No. 1.
7. The learned Counsel for the petitioner contended that on the text of the explanation to Order 9 Rule 13 of the Civil Procedure Code, litigant cannot approach two forums simultaneously. During the course of hearing he furnished list of dates for appreciation of his contentions. The details thereof are as under :"
Approach to 1st forum
1. On 11.1.1994 - suit was filed.
2. On 30.4.1997 - Ex parte decree was passed.
3. On 28.10.1997 - The original defendant judgment debtor moved an application under Order 9 Rule 13 of the C.P.C., without there being any application for condonation of delay.
4. The above application was registered as Misc. Civil Application No. 238/97.
5. On 8.10.1998 - The aforesaid application was allowed and ex parte decree was set aside.
Approach to 2nd forum
(i) in November, 1997, the original judgment-debtor filed first appeal challenging ex parte decree dated 30.4.1997 before High Court along with an application for condonation of delay.
(ii) On 8.2.2001 the High Court transferred the above appeal to the District Court at Alibag in view of the amendment to the Bombay Civil Court's Act.
On the basis of the aforesaid list of dates, the learned Counsel for the petitioner formulated three grounds of attack to challenge the aforesaid order. They are as under :
(A) Application under Order 9 Rule 13 of the C.P.C. could not have been entertained and tried by the Trial Court without there being any application for condonation of delay, since there was a delay of about 6 months in moving the said application for setting aside ex parte decree.
(B) The impugned order, setting aside ex parte decree, suffers from material illegality, irregularity and non-application of mind on the part of the Trial Court.
(C) The Trial Court could not have proceeded to try an application under Order 9 Rule 13 of the C.P.C. and could not have allowed the same in view of Explanation to Order 9 Rule 13 of the C.P.C., which prohibits such application if the appeal is pending before appellate forum.
Taking the last ground first, the Explanation brought on the statute by way of an amendment to C.P.C. viz. Amending Act No. 104/1976: Order 9 Rule 13 was amended. The explanation reads as under :
"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 He under this rule for setting aside that ex parte decree."
8. The aforesaid explanation prevents the litigant from approaching two forums simultaneously. The legislative attempt to Incorporate Explanation was to discourage two-pronged attack on the decree passed by the Civil Court and to confine the defendant to single course of action. If the litigant does not withdraw the appeal filed by him, but allowed it to be proceeded with then he does not have right to apply under Order 9 Rule 13 of the C.P.C. Pendency of the appeal constitutes sufficient reason for putting the ban Into operation.
9. Turning to the facts of the present case, the appeal has not yet been decided. The appeal is pending on the file of the District Judge, Alibag, and the same is being prosecuted by respondent No.1. This fact is brought on record by the petitioner by filing an affidavit dated 2.3.2001, wherein a positive statement is made on oath that the appeal is still pending, as on date, on the file of the District Judge, Alibag. The learned Counsel for the petitioner placed reliance on the judgment of the Apex Court in the case of Rani Choudhury v. Lt. Col. Suraj Jit Choudhury,', wherein the Apex Court observed as under :
"The Legislature has, however, thought it fit to provide that when an appeal has been preferred against an ex parte decree, the disposal of an appeal on any ground excepting the solitary ground of disposal of the appeal by withdrawal of the same by the appellant, will create a bar to the maintainability of an application under Order 9 Rule 13. By specially providing in the Explanation that the disposal of any appeal from the ex parte decree on any ground than the solitary ground of withdrawal of the appeal by the appellant, the legislative Intent is made manifestly clear that in all other cases of the disposal of the appeal on any other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under Order 9 Rule 13 and no application will lie under Order 9 Rule 13 for the setting aside of an ex parte decree."
10. Considering the above law recognised by the Apex Court in the above judgment and taking into account the fact that respondent No. 1 has already invoked appellate Jurisdiction of Appellate Court, during the pendency of the application under Order 9 Rule 13 and that he is still prosecuting the appeal, the application under Order 9 Rule 13 of the C.P.C. setting aside ex parte decree was not maintainable. The impugned order thus is liable to be set aside on this short count, holding that application under Order 9 Rule 13 of the C.P.C. was rendered untenable, no sooner the Jurisdiction of the appellate forum was invoked by the respondent No. 1 and consequent failure on his part to withdraw the appeal. In the wake of these facts on record, the application for setting aside ex parte decree could not have been allowed by the Trial Court.
11. Taking first ground of attack as next limb of argument advanced by the learned Counsel for the petitioner relates to the absence of application for condonation of delay, in preferring application under Order 9 Rule 13 of the C.P.C. In his submission, ex parte decree was passed on 30.4.1997; whereas application under Order 9 Rule 13 was moved on 28.10.1997. Obviously, there was a delay of about six months in presenting an application for setting aside the ex parte decree. As such, this application ought to have been accompanied by an application for condonation of delay. Consequently, in his submissions application under Order 9 Rule 13 could not have been registered much less tried by the Trial Court.
12. He went on to submit that without there being an application for condonation of delay and in the absence of actual order condoning delay, the Trial Court could not have assumed Jurisdiction to entertain and try the said application. In order to support this submission, learned Counsel for the petitioner placed reliance on the Judgment of the Division Bench of this Court in the case of M. M. College of Science v. R. T. Borkar. wherein this Court observed as under :
... Even though this is a rule of procedure and liberally to construe to impart substantive justice, it cannot be forgotten, that it is a statutory provision and, therefore, it is necessary for the appellant to show cause for not preferring the appeal within the time limit prescribed. Absolute absence on the part of the appellant to explain the delay and or to furnish cause to the satisfaction of the Tribunal takes away the jurisdiction of the Tribunal to entertain the appeal.
13. In view of the aforesaid law laid down by this Court the learned Counsel for the petitioner is right in his submission that application could not have been registered much less tried by the Trial Court. On this short count, the impugned order is liable to be quashed and set aside. The above submissions advanced in this behalf are well merited. The same deserve acceptance.
14. The first ground of attack formulated hereinabove relates to the merits of the matter in question. Since this revision application is being allowed on the first and third grounds of attach referred to hereinabove, I do not think it necessary to deal with the third ground of attack.
15. In the result, revision application is allowed. The Impugned order dated 28.12.1997, passed by the Civil Judge, SD, Panvel is quashed and set aside. Rule is made absolute with no order as to costs.