Featured image for Supreme Court Judgment dated 07-05-2019 in case of petitioner name Bhivchandra Shankar More vs Balu Gangaram More & Others
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Partition Suit and Delay in Appeal: Supreme Court’s Landmark Ruling

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The case of Bhivchandra Shankar More vs. Balu Gangaram More & Others revolves around a partition suit where an ex-parte decree was passed, and the appellants sought to challenge it after a long delay. The Supreme Court was called upon to decide whether the delay in filing the appeal should be condoned, considering that the appellants had initially pursued a remedy under Order IX Rule 13 CPC instead of filing an appeal under Section 96(2) CPC.

The Court ruled in favor of the appellants, holding that the time spent in pursuing the Order IX Rule 13 CPC remedy constituted “sufficient cause” for condoning the delay. This judgment is significant as it clarifies the right of defendants to file an appeal even after an unsuccessful attempt to set aside an ex-parte decree.

Background of the Case

The respondents (plaintiffs) filed a partition suit, Regular Civil Suit No. 35 of 2007, seeking partition and separate possession of joint family property. The summons for the suit was served on Tanaji, the son of defendant No.2, on 25.02.2007. The appellant claimed that they were away in a neighboring village for work, and Tanaji failed to inform them about the suit.

The trial court passed an ex-parte decree on 04.07.2008, granting partition in favor of the plaintiffs. Upon learning of the decree, the appellant and respondents No.14 and 15 filed an application under Order IX Rule 13 CPC on 15.10.2008, seeking to set aside the ex-parte decree. However, the trial court dismissed this application on 06.08.2010.

Instead of immediately filing an appeal, the appellants pursued a remedy under Order IX Rule 13 CPC, leading to further litigation. After their application was dismissed, they filed an appeal (Civil Appeal No.108 of 2010) challenging the dismissal. On 11.06.2013, they withdrew this appeal and, on the very next day (12.06.2013), filed a regular appeal against the ex-parte decree, along with an application for condonation of delay amounting to four years, ten months, and eight days.

Legal Issues Considered

  • Whether the delay in filing an appeal against the ex-parte decree should be condoned.
  • Whether pursuing an application under Order IX Rule 13 CPC prevents a defendant from filing a regular appeal under Section 96(2) CPC.
  • Whether the right to appeal under Section 96(2) CPC is an independent statutory right.
  • Whether the High Court erred in rejecting the application for condonation of delay.

Arguments by the Petitioner (Bhivchandra Shankar More)

  • The appellants did not receive proper notice of the suit, as the summons was served only on Tanaji, who failed to inform them.
  • The delay in filing the appeal was due to their mistaken belief that setting aside the ex-parte decree under Order IX Rule 13 CPC was the correct legal remedy.
  • The law requires that “sufficient cause” should be construed liberally, especially in cases where property rights are involved.
  • Denying them the right to appeal would result in irreparable loss, as they would be deprived of their share in the joint family property.

Arguments by the Respondent (Balu Gangaram More & Others)

  • The appellants were negligent in not appearing before the trial court despite proper service of summons.
  • They wasted several years pursuing an incorrect remedy under Order IX Rule 13 CPC, rather than filing a direct appeal.
  • Once the application under Order IX Rule 13 CPC was dismissed, they could not subsequently file an appeal, as the two remedies could not be pursued consecutively.
  • The High Court was correct in ruling that appeals should be filed within the statutory time limit, and delays should not be condoned in such cases.

Supreme Court’s Observations

The Supreme Court ruled that the appellants were justified in seeking condonation of delay, as they had been actively pursuing legal remedies. The Court observed:

“The right to appeal under Section 96(2) CPC is a statutory right. A litigant cannot be deprived of this right merely because they first pursued an application under Order IX Rule 13 CPC.”

The Court further held:

“Merely because the defendant pursued a remedy under Order IX Rule 13 CPC, it does not bar them from filing an appeal if their application is dismissed. The scope of inquiry under the two provisions is entirely different.”

Key Findings of the Supreme Court

  • The appeal under Section 96(2) CPC was maintainable even after an unsuccessful Order IX Rule 13 CPC application.
  • The High Court erred in holding that two remedies could not be pursued consecutively.
  • The delay in filing the appeal was due to a genuine mistake in pursuing an alternative remedy, and it should be condoned.
  • Partition suits involve valuable property rights, and parties should be given an opportunity to contest them on merits.
  • The District Court was correct in condoning the delay and allowing the appeal to be heard.

Final Verdict

The Supreme Court set aside the High Court’s ruling and restored the appeal. It directed the first appellate court to proceed with the case and adjudicate the appeal on its merits.

Implications of the Judgment

This ruling reinforces the principle that procedural technicalities should not defeat substantive justice. It clarifies that:

  • Defendants can file an appeal under Section 96(2) CPC even after losing an Order IX Rule 13 CPC application.
  • Courts should adopt a liberal approach when considering applications for condonation of delay in cases involving property rights.
  • Litigants should not be penalized for pursuing an incorrect remedy due to legal confusion.

The judgment ensures that defendants in partition suits and other property-related litigation are not deprived of their right to contest cases on merit due to procedural delays.


Petitioner Name: Bhivchandra Shankar More.
Respondent Name: Balu Gangaram More & Others.
Judgment By: Justice R. Banumathi, Justice R. Subhash Reddy.
Place Of Incident: Maharashtra.
Judgment Date: 07-05-2019.

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