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2012 DIGILAW 119 (KER)

Brijitha v. Kuttiyamma

2012-01-24

THOMAS P.JOSEPH

body2012
Judgment THOMAS P. JOSEPH, J. 1. The scope of enquiry by the appellate court in an appeal arising from ajudgment and decree passed exparte is raised for a decision in this SecondAppeal. 2. Respondent sued the appellants, her mother and brother forpartition and separate possession ofthe share claimed by herin the suitproperty which originally belonged to the late Joseph, her father. Appellantsresisted the suit and raised a counter claim contending that respondent wassent in marriage giving her share in the family property andthereafter,appellants effected partition of the suit property as per document No.2669 of 2006. The prayer in the counter claim is for a declaration that the said partitiondeed is valid and for other reliefs. The case came up for trial on 23.10.2009.That day, appellants and counsel remained absent. Appellants were set exparte.Respondent produced Exts.A1 to A3 and on the strength of those documentsand the affidavit filed by her, a preliminary decree for partition was passed. Thecounter claim was dismissed. Appellants filed I.A.Nos.1189 and 1190 of 2009 toset aside the exparte decree and to condone the delay in filing the application.Those applications were dismissed.Appellants challenged theexpartejudgment and decree in the Sub Court, Pala in A.S.No.88 of 2010. There,appellants prayed for a remand of the case explaining the circumstances underwhich they happened to be absent in the trial court on the day of trial. LearnedSub Judge dismissed the appeal. Hence this Second Appeal urging by way ofsubstantial questions of law whether in an appeal filed against the expartedecree, is it not in the interest of justice that as per Order XLI, Rule 23 of theCode of Civil Procedure (for short, "the Code"), the case is remanded to givethe appellants an opportunity to substantiate their contentions and whether, it islegally justifiable that since the petition to set aside the exparte decree isdismissed by the trial court, the prayer for remand cannot be allowed? 3.It is contended by the learned counsel that appellants hadjustifiable reason for their absence in the trial court on the day of trial which thefirst appellate court has not taken into account. It is also contended by thelearned counsel that there is nothing which prevented the first appellate courtfrom remanding the case to the trial court for fresh decision after givingappellants opportunity to adduce evidence. 4.It is not disputed that on account of absence of appellants andcounsel trial court decided to hear the suit exparte. It is also contended by thelearned counsel that there is nothing which prevented the first appellate courtfrom remanding the case to the trial court for fresh decision after givingappellants opportunity to adduce evidence. 4.It is not disputed that on account of absence of appellants andcounsel trial court decided to hear the suit exparte. Acting upon the evidence letin by the respondent, a decree for partition was passed in her favour. Thecounter claim was dismissed. 5.The question is whether in an appeal arising from the judgmentand decree passed exparte, it is open to the appellate court to considerwhether appellants were prevented by sufficient cause from appearing in thetrial court when the suit was called on for hearing. 6.This Court, referring to the decisions of other High Courts held inBava@ Asees v. Madhavan & Others (1995 (2) KLJ 706) that aparty is not entitled to ask the appellate court to accept the appeal (filed underSec.96(2) of the Code) on a ground which he could urge in an application underRule 13 of Order IX of the Code and request for a remand of the case for re-hearing.That decision was referred to and relied on by a Division Bench inAbdul Azeez v. Shareefa Beevi (1997 (1) KLT 8). In an appeal arisingfrom an exparte order of eviction passed under Act 2 of 1965, the DivisionBench held that in an appeal filed against the order of eviction whether exparteor on merit, appellant can succeed only on merit establishing that the order ofeviction is illegal on the materials available on record and not for the reason thathe was denied the opportunity to contest the petition for eviction. 7.A later Division Bench, in Ajith Mathews v. SheelammaThomas (2011 (2) KLT 225) though without reference to the decision ofthe Division Bench referred supra, did not approve the view taken in Bava @Aseesv. Madhavan & Others. The Division Bench expressed its view asunder: "In an appeal under Section 96(2) of the Code thedecree can be challenged on all available groundsincluding the one pertaining to the circumstanceswhich led to passing of the exparte decree. Theappellate court can consider not only the merit of thecase, but also the circumstances which warrantedpassing of the final decree. ........". That decision was rendered relying on the decision of the Supreme Court inBhanuKumar v. Archana Kumar (2005 (1) KLT 456). Theappellate court can consider not only the merit of thecase, but also the circumstances which warrantedpassing of the final decree. ........". That decision was rendered relying on the decision of the Supreme Court inBhanuKumar v. Archana Kumar (2005 (1) KLT 456). There, theSupreme Court observed: "The dichotomy, in our opinion, can be resolved byholding that whereas the defendant would not bepermitted to raise a contention as regards the correctnessor otherwise of the order posting the suit for ex-partehearing by the Trial Court and/or existence of a sufficientcase for non-appearance of the defendant before it, itwould be open to him to argue in the First Appeal filed byhim against S.96(2) of the Code on the merit of the suit soas to enable him to contend that the materials brought onrecord by the plaintiffs were not sufficient for passing adecree in his favour or the suit was otherwise notmaintainable. ..........." 8.The decision inAjithMathews v. Sheelamma Thomascannot be understood as laying down the law that in an appeal under Sec.96(2)of the Code against a judgment and decree passed exparte it is open to theappellant to canvass grounds which he could urge in an application filed underRule 13 of Order IX of the Code. In an appeal preferred under Sec.96(2) of theCode it may be open to the appellant to challenge legality of the order settinghim exparte and passing an exparte decree. The position can be illustrated thus:in a suit for recovery of money based on a demand promissory note thedefendant admitted execution of the negotiable instrument but denied passingof consideration or, raised a plea of discharge. The onus of proof was on thedefendant. In such a case if the defendant was absent, the trial court would bejustified in granting a judgment and decree in favour of the plaintiff. In thatcase, in an appeal against the exparte judgment and decree the appellantcannot contend that he was prevented by sufficient cause from not appearing inthe trial court. That is a plea which the appellant-defendant may urge in anapplication made under Rule 13 of Order IX of the Code.If on the other handdefendant had deniedexecution of the instrumentandpassing ofconsideration, burden of proving due execution of the instrument was on theplaintiff. That is a plea which the appellant-defendant may urge in anapplication made under Rule 13 of Order IX of the Code.If on the other handdefendant had deniedexecution of the instrumentandpassing ofconsideration, burden of proving due execution of the instrument was on theplaintiff. In that case if on the day the case is posted for trial defendant isabsent but, his counsel is present with preparedness to take part in the trial andcross examine plaintiff and his witness if any but, in spite of that, the trial courttaking note ofabsence of the defendant declares him exparte and that isfollowed by an exparte judgment and decree in favour of the plaintiff, when thedefendant challenges that judgment and decree in appeal under Sec.96(2) ofthe Code,it is open to him to contend that the trial court went wrong indeclaring him exparte and passing the exparte judgment and decree. That isthe scope ofenquiry the appellate courtcan have in the appeal from ajudgment and decree passed exparte apart from considering the appeal on itsmerit. In an appeal preferred under Sec.96(2) of the Code against an expartejudgment and decree, appellate court cannot consider the question whetherappellant was prevented by sufficient cause from not appearing in the trial on theday of trial. That is all what the Division Bench also stated in Ajith Mathewsv. Sheelamma Thomas. I must also notice that though the Division Benchin the said decision did not approve the view taken by the learned Single Judgein Bava @ Asees v. Madhavan & Others, the said decision was reliedon and approved by another Division Bench in Abdul Azeez v. ShareefaBeeviwhich was not taken note of while deciding Ajith Mathews v.SheelammaThomas. 9.Coming back to the facts of this case, appellants denied the claimof respondent that she is entitled to partition and separate possession of theproperty for the reason that at the time of her marriage she was given her sharein the family property. Appellants claimed that later, they partitioned the propertyas per document No.2669 of 2006. Hence appellants prayed for a decree onthe counter claim.AdmittedlyJoseph died intestateandappellants andrespondent are the natural legal heirs. Therefore, respondent was entitled to geta share in the property of her deceased father. In that situation, if at all the pleawas tenable it was for the appellants to show that the share of respondent hadalready been given and hence, partition deed No.2669 of 2006 (to whichrespondent is not a party) is valid. Therefore, respondent was entitled to geta share in the property of her deceased father. In that situation, if at all the pleawas tenable it was for the appellants to show that the share of respondent hadalready been given and hence, partition deed No.2669 of 2006 (to whichrespondent is not a party) is valid. Burden of proof in that regard was on theappellants. Hence in their absence in the trial court on 23.10.2009 the said courtwas justified in dismissing the counter claim and granting a decree in favour ofrespondent. When that judgment and decree though exparte were challengedbefore learned Sub Judge, the two questions that could be urged were onlywhether the trial court was correct in deciding to hear the case exparte andwhether on merits judgment and decree of the trial court could be sustained?As aforesaid, appellants could not urge any of the grounds which they couldhave raised in an application under Rule 13 of Order IX of the Code. On thefacts of this case trial court was correct in deciding to hear the case exparte,passing a judgment and decree in favour of the respondent and dismissing thecounter claim. 10.In the above circumstances, there was no scope for a remand asprovided under Rule 23 of Order XLI of the Code. There was nothing whichrequired the first appellate court to remand the case to the trial court in the abovecircumstances. 11.In the above view, no substantial questions of law as urged arisefor a decision in this Second Appeal. Second Appeal is dismissed. All pending interlocutory applications will stand dismissed.