BHANU KUMAR JAIN V. ARCHANA KUMAR AIR 2005 SC 626 (S.B. SINHA, J.)
FACTS
- The original plaintiff (brother) filed a suit for partition in 1976. The original defendants (mother & sister) filed their written statements. Respondent 2 (husband of Respondent 1, the sister) also filed a written statement and counterclaim by setting up a plea of mortgage by deposit of title deeds in respect of property in suit said to have been created by his mother-in-law (original defendant 1).
- No documents were filed by Respondents 1 & 2 to support their claim.
- On the day of evidence, the respondents were not present and the Original plaintiff submitted his evidence. Respondent 1 did not cross-examine the original plaintiff and the cost impose don the respondent was also not paid.
- Hence, the case was set ex-parte against the respondent and the respondent lost the right to cross-examine.
- Respondent didnt appear on the date of final arguments and on a later date respondent filed an application under Order 9 Rule 7 for setting aside the order which posted the suit ex-parte. Same was rejected and preliminary decree for partition was passed in favour of the original plaintiff. Respondent filed an application under Order 9 Rule 13 which was dismissed holding that the respondents failed to prove good and sufficient cause for their absence. An appeal against that was also dismissed. A Civil Revision Application was also dismissed.
- A regular first appeal was filed in the High Court arguing that respondent 2 did not file any appeal against the rejection of his counterclaim hence the impugned judgment was allowed.
- Amidst this, the original plaintiff transferred his right, title and interest in favour of the appellant.
ISSUE
- What are the remedies, their extent and limitations, in the event of an ex-parte decree being passed against the defendant in terms of order 9 rule 13 of CPC?
HELD
The appeal was allowed, the impugned judgment was set aside and the case was remitted back to the High Court to consider the case on the merits.
- Order 9 Rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex parte hearing was passed, only in the event, the suit had not been heard; as in a case where hearing of the suit was complete and the court had adjourned a suit for pronouncing the judgment, an application under Order 9 Rule 7 would not be maintainable.
- In an application under Order 9 Rule 13, apart from questioning the correctness or otherwise of an order posting the case for ex parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.
- When an ex parte decree is passed, the defendant has four options: (1) to file a review petition, (2) file a suit for setting aside the ex-parte decree on the ground of fraud, (3) to file an appeal, (4) to file an application for setting aside the order in terms of Order 9 Rule 13. The defendant can take recourse to both (3) & (4) simultaneously but in the event the appeal (3) is dismissed as a result of which the ex parte decree passed by the trial court merges with the order passed by the appellate court, as per explanation to Order 9 Rule 13 a petition under Order 9 Rule 13 would not be maintainable. However, the converse is not true.
- A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so.
- When an application under Order 9 Rule 13 is dismissed the defendant can only avail a remedy available against that, i.e., to prefer an appeal in terms of Order 43 Rule 1. Once such appeal is dismissed the appellant cannot re-agitate the same contention in the first appeal as doing so may lead to a conflict of decisions which is not contemplated in law.
- The defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient cause for non-appearance of the defendant before it.
- But it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal.
- The “Explanation” appended to Order 9 Rule 13 of the Code shall receive a strict construction.
COMMENTARY
When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true.
Whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal.