Research › Search › Judgment

Kerala High Court · body

2011 DIGILAW 299 (KER)

Ajith Mathews v. Sheelamma Thomas

2011-03-15

A.K.BASHEER, P.S.GOPINATHAN

body2011
JUDGMENT Basheer, J. 1. Appellant who is the defendant in a suit for recovery of money has filed this appeal against the ex parte decree passed against him by the trial court. 2. This case has come up before us on a reference made by a learned single Judge doubting the correctness of the decision rendered by a learned single Judge of this Court in Bava alias Asees v. Madhavan & Ors. ((1995) 2 KLJ 706). 3. In the above decision the learned single Judge took the view that in an appeal against an ex parte decree the appellant is not entitled “to ask the appellate court to accept the appeal on a ground which he could urge in an application under Rule 13 of Order IX and request for remand of the suit for re-hearing”. 4. To put it differently, the learned Judge held that in such instances the appellate court can consider the case only on its merit or on any question of law arising therefrom. The question whether there was sufficient cause for the absence of the appellant before the trial court would be beyond the scope of enquiry by the appellate court. The learned Judge held that the appellant not having chosen to take recourse to the remedy available to him under Rule 13 of Order IX of the Code of Civil Procedure would be precluded from trying to justify the reasons for his absence during trial. 5. In his reference order the learned single Judge has expressed his reservations about the correctness of the above view. The learned Judge has also referred to another decision of this Court in Haridas v. Madhavi Amma (1987 (2) KLT 701) in this context, in which another learned single Judge has laid down that the remedy provided under Order IX Rule 13 and that by way of appeal are not mutually exclusive. It is on the face of the conflicting views in the two decisions referred to above that the learned single Judge has referred this case to a Division Bench. 6. As has been noticed already, appellant was set ex parte in the suit instituted by the respondent herein, as he was absent on the day when the case was taken up for consideration. Accordingly an ex parte decree was passed against the appellant. 7. 6. As has been noticed already, appellant was set ex parte in the suit instituted by the respondent herein, as he was absent on the day when the case was taken up for consideration. Accordingly an ex parte decree was passed against the appellant. 7. The case of the appellant is that he came to know about the decree only when he received notice in the execution proceedings. According to him, he had sent the notice received by him from the trial court to his mother and Power of Attorney requesting her to engage a counsel; but the said communication sent by him never reached its destination. It was in the above circumstances that the appellant had filed this appeal under Section 96(2) read with Order XLI Rule 1 of the Code of Civil Procedure. 8. Appellant has stated the reasons for his failure to appear before the trial court in the memorandum of appeal, apart from raising various other contentions touching upon merit of the case. It is not necessary for us to refer to those contentions at this stage. We will revert back to that aspect a little later. 9. There can be no controversy that the defendant who has suffered an ex parte decree has three options before him (1) He can file an appeal against the ex parte decree under Section 96(2) of the Code. (2) He can file an application under Order IX Rule 13 of the Code to set aside the ex parte decree. 10. In addition to the above, he can also seek review of the judgment under Order XL VII and may also file a suit to set aside the decree on the ground of fraud etc. 11. It is trite that the remedies available under Order IX Rule 13 and Section 96 are concurrent. The defendant who has suffered an ex parte decree can choose either of the two remedies, or he can have recourse to both proceedings simultaneously. The right given to a suitor under Section 96 of the Code is a statutory and inviolable right. Such a statutory right cannot be taken away if it is not in derogation or contrary to any other statutory provisions. The Code while conferring such a statutory appellate remedy to a suitor has simultaneously provided a procedure to get the ex parte decree set aside under Order IX Rule 13. Such a statutory right cannot be taken away if it is not in derogation or contrary to any other statutory provisions. The Code while conferring such a statutory appellate remedy to a suitor has simultaneously provided a procedure to get the ex parte decree set aside under Order IX Rule 13. There is nothing in the Code which interdicts a suitor from taking recourse to both the above remedies. Order IX Rule 13 reads thus: “13. Setting aside decree ex parte against defendant:- 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 e 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 plaintiff’s 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 withdraw the appeal, no application shall lie under this rule for setting aside that ex parte decree.” 12. Explanation appended to the above rule will indicate that the right given to a defendant to get the ex parte decree set aside will not be available to him if the appeal against such an ex parte decree had been disposed of on any ground other than the ground that the appellant had withdrawn the appeal. Explanation appended to the above rule will indicate that the right given to a defendant to get the ex parte decree set aside will not be available to him if the appeal against such an ex parte decree had been disposed of on any ground other than the ground that the appellant had withdrawn the appeal. The above Explanation also indicates that the remedy available to a defendant to get the ex parte decree set aside under Order IX Rule 13 is concurrent with the right of appeal under Section 96 of the Code. The defendant may try his chance by filing a petition under Order IX Rule 13 to set aside the decree and he may simultaneously prefer an appeal also against the ex parte decree as provided under Section 96 (2) of the Code. Obviously, if the defendant succeeds in his petition under Order IX Rule 13, his appeal will become infructuous. However if his application is dismissed by the trial court, he will have to seek the remedy of appeal as provided under Section 104 read with Order XLIII Rule 1(d). But if the appeal preferred by him under Section 96 of the Code is dismissed, he cannot proceed with the application under Order IX Rule 13 or the appeal under Section XLIII Rule 1(d) as the case may be, since the decree passed by the trial court will merge in the appellate decree. 13. In Bava (supra), the defendant in a suit for injunction failed to appear before the Court after closing the evidence on the side of the plaintiff. The Court passed an ex parte decree since the defendant was absent and his counsel reported no instructions. In appeal, the Subordinate Judge confirmed the decree and judgment of the trial court. The defendant preferred the Second Appeal against the above appellate decree and judgment under Section 100 of the Code. One of the substantial questions of law that was raised by the appellant was whether the trial court was justified in disposing of the suit on merits after declaring him ex parte, since the circumstance of the case did not fall under the Explanation to Rule 2 Order XVII of the Code. 14. The learned single Judge after referring to some of the decisions of the High Courts of Oudh, Rajasthan, Madhya Pradesh, Allahabad, etc. 14. The learned single Judge after referring to some of the decisions of the High Courts of Oudh, Rajasthan, Madhya Pradesh, Allahabad, etc. took the view that the question whether the appellant was set ex part for valid or justifiable reasons cannot be considered in an appeal filed under Section 96 of the Code. The learned Judge held that even if an appeal under Section 96(2) of the Code is preferred by the defendant, the enquiry in such an appeal “can only relate to an error, defect or irregularity which has affected the decision of the case and the enquiry has to be limited to the question whether the decree could be sustained on the materials on record”. It was further held that permitting the appellant “to raise the points of injustice of the ex parte order in an appeal under Section 96 of the Code would be virtually converting the appeal into a petition for setting aside the ex parte decree.” 15. In Haridas (supra) the revision petitioner was the plaintiff in a suit for injunction. Initially an order of temporary injunction was issued at the instance of the plaintiff against the defendants. Later the defendants entered appearance and moved an application for injunction against the plaintiffs. The two injunction applications were disposed of by the trial court after hearing the parties. But it so happened that the defendants could not file the written statement on the appointed day. Therefore they were set ex parte and a decree was passed against them. On the next day, the defendants filed an application under Order IX Rule 13 to set aside the ex parte decree explaining the reason for their failure to file the written statement. In fact they also filed their written statement along with the said application. The trial court allowed the application and set aside the ex parte decree. The said order was challenged by the plaintiff in the Civil Revision Petition. 16. The contention of the revision petitioner was that the remedy available to the defendants was only to prefer an appeal against the ex parte decree. This argument was primarily based on Rule 10 of Order VIII, which enabled the Court to pronounce judgment against a defendant who failed to file his written statement on the appointed day. 16. The contention of the revision petitioner was that the remedy available to the defendants was only to prefer an appeal against the ex parte decree. This argument was primarily based on Rule 10 of Order VIII, which enabled the Court to pronounce judgment against a defendant who failed to file his written statement on the appointed day. The learned Judge repelled the above contention and held that availability of the remedy of appeal against an ex parte decree is no bar to an application under Order IX Rule 13, if such a remedy is also available to the party concerned. We do not propose to deal with the various other ancillary issues considered by the learned single Judge in the above decision since they are not relevant for this reference. 17. An ex parte decree can be passed not only under Order IX but also under Order VIII Rule 10 or Rule 2 of Order XVII. Such an ex parte decree can be set aside by the Court under Order IX Rule 13 if sufficient cause is shown by the defaulting party. 18. In an appeal under Section 96(2) of the Code the decree can be challenged on all available grounds including the one pertaining to the circumstances which led to passing of the ex parte decree. The appellate court can consider not only the merit of the case, but also the circumstances which warranted passing of the ex parte decree. Thus obviously there is no gainsaying the fact that the appellate power is more comprehensive and exhaustive in ambit and scope. Such appellate power cannot be curtailed or circumscribed on the ground that a separate remedy is made available to the defendant to get an ex parte decree is set aside. Such a view, in our considered opinion, is not sustainable in the eye of law. In that view of the matter we are unable to agree with the rationale or the law as laid down in Bava’s case. Therefore the said decision is over-ruled. 19. In Bhanu Kumar v. Archana Kumar (2005 KLT 456 SC) a three Bench of the Apex court had occasion to consider the scope and ambit of Order IX Rule 13. 20. An ex parte decree was passed by the trial court in a suit for partition that was hotly contested by the parties. Therefore the said decision is over-ruled. 19. In Bhanu Kumar v. Archana Kumar (2005 KLT 456 SC) a three Bench of the Apex court had occasion to consider the scope and ambit of Order IX Rule 13. 20. An ex parte decree was passed by the trial court in a suit for partition that was hotly contested by the parties. The application filed under Order IX Rule 13 of the Code was dismissed by the Court holding that the defendant has failed to show sufficient cause for their absence. In the appeal filed under Order XLIII Rule 1(d) of the Code against the said order was also dismissed by the appellate court. It appears that the order passed by the trial court on the application filed by the defendant under Order IX Rule 7 of the Code had also been dismissed in the meanwhile. A Regular First Appeal filed against the ex parte decree was allowed by the High Court holding that the trial court had grossly erred in law by proceeding ex parte against the defendants and that the counter claim laid by the defendant had not been properly considered. To cut a long story short, the primary question urged before the Apex Court was one under Order IX Rule 13 and the other a Regular First Appeal under Section 96 whether it would be against public policy to allow two parallel proceedings to continue simultaneously. Various decisions were cited on either side. The Three Judge Bench ultimately held, after considering the specific question as to whether a first appeal would be maintainable after the dismissal of the application under Order IX Rule 13 o the Code, that nothing in the Code interdicts an aggrieved defendant from filing an appeal against the ex parte decree. The Court further laid down that the defendant against whom an ex parte decree is passed can take recourse to both the proceedings simultaneously but since on dismissal of the appeal, the ex parte decree passed by the trial court would merge with the decree passed by the appellate court, a petition under Order IX Rule 13 would not be maintainable, especially in view of the Explanation appended to Order IX Rule 13. The Court hastened to add that the Explanation referred to above would not suggest that the converse is also true. The Court hastened to add that the Explanation referred to above would not suggest that the converse is also true. In the above context their lordships held thus: “We have, however, no doubt in our mind that when an application under O.9, R.13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz. to prefer an appeal in terms of O.43, R.I of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.” 21. In the light of the law laid down by the Apex Court as noticed above, which fortifies our view indicated in the earlier part of the judgment, the question referred to the Division Bench is answered holding that the appellant in an appeal under Section 96(2) of the Code can challenge not only the correctness of the order passed by the trial court setting him ex parte, but also the legality and sustainability of the decree on its merit. Registry shall post the Second appeal for hearing before the appropriate bench.