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2012 DIGILAW 309 (CAL)

Sobhamay Biswas v. Gopal Roy

2012-04-12

HARISH TANDAN

body2012
Judgment HARISH TANDON, J. 1. This revisional application is directed against order No.90 dated June 5, 2009 passed by learned Civil Judge (Junior Division) Tehatta, Nadia in Miscellaneous Case No. 31 of 2006 by which an application under Order 9 Rule 13 of the Code of Civil Procedure was allowed. 2. BY assailing the said order, plaintiff/petitioner raises a point that if an application under Order 9 Rule 13 of the Code praying for setting aside the ex parte decree at the instance of some of the defendants has been dismissed, the subsequent application under the same provision by the other defendants is not maintainable. Mr. Bidyut Banerjee, learned Senior Advocate appearing for the petitioner submits that upon rejection of an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree filed by the defendant nos. 1-4, the decree passed against them became final which cannot be set aside at the instance of the other defendant. According to him if the ex parte decree is set aside on an application filed by the other defendant, the same would enure to the benefit of the defendant nos. 1-4 who did not succeed in getting the said ex parte decree set aside. By raising the aforesaid point Mr. Banerjee tried to impress upon the court by giving an example that if two regular appeals under section 96 of the Code are filed by two different set of defendants challenging the selfsame judgment and decree, the dismissal of one would operate as res judicata upon the other. Similarly if on an earlier occasion the court refuses to set aside the ex parte decree, then subsequent application at the instance of the other defendant could not be maintainable/entertainable. By refuting the aforesaid submission, Mr. Dutta, learned Advocate appearing for the opposite party however, contends that mere rejection of an application for setting aside the ex parte decree by some of the defendants, cannot preclude the present opposite party from maintaining the similar application. He submits that if some of the unsuccessful defendants would be benefited from the setting aside of the ex parte decree at the instance of the other defendants the same is permissible and placed reliance upon a judgment of the Delhi High Court in case of Bank of India vs. M/s Mehta Brothers and Ors. reported in AIR 1991 Delhi 194. reported in AIR 1991 Delhi 194. He strenuously submits that the first proviso to Order 9 Rule 13 extends the benefit of an order by which the ex parte decree is set aside to the other defendants who did not pray for the same. Therefore, even if the application for setting aside the ex parte decree filed by the said defendants are rejected there is no bar in extending the benefit of an order after setting aside the ex parte decree at the instance of the other defendants to them. To buttress the above submission he placed reliance upon the judgment of the Supreme Court in case of Mahesh Yadav Vs. Rajeswar Singh (2009) 2 SCC 205, Bank of India Vs. Mehta Brothers (2008) 13 SCC 466 and Rabindra Singh Vs. Financial Commissioner, Punjab and Ors. (2008) 7 SCC 663 . Thus he concludes in saying that the order impugned should not be interfered in revision by the high court. To answer the point as indicated above, it would be profitable to quote provision of Order 9 Rule 13 of the Code of Civil Procedure which reads thus : SETTING ASIDE DECREE EX PARTE "R. 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 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. 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 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 withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree." 3. THE title before the aforesaid provision makes it clear that the rules there under relates to setting aside the decree ex parte. THE preamble of Order 9 Rule 13 manifests the setting aside the decree ex parte against the defendant. THE main portion of the said rule contemplates two situations; firstly on satisfaction of the court that the summons was not duly served and secondly the defendant was prevented by a sufficient cause from appearing when the suit was called on for hearing; the court can set aside the decree. Two provisos and an explanation are appended to the main provision. First proviso which is relevant in the present context envisages that where the decree is of such nature that it cannot be set aside against an applying defendant only it may be set aside as against all or any of the defendants also. However the second proviso which is not very much relevant for the present purpose restricts the power of the court to set aside the ex parte decree on the ground of irregularity on the service of summons on satisfaction that the applying defendant had a notice on the date of hearing and had sufficient time to appear. THE explanation makes it clear that in the event an appeal against the ex parte decree is disposed of on any ground than on the ground of withdrawal of appeal, the said application under the provision shall not lie. 4. PRIOR to incorporation of Order 9 Rule 13 with proviso thereto, section 108 of the Code of Civil Procedure 1882 contained a provision for setting aside the ex parte decree against the defendant upon satisfaction of the court that the summons were not duly served. 4. PRIOR to incorporation of Order 9 Rule 13 with proviso thereto, section 108 of the Code of Civil Procedure 1882 contained a provision for setting aside the ex parte decree against the defendant upon satisfaction of the court that the summons were not duly served. However different words used in the said section namely "decree', "set aside the decree" and "proceeding with the suit" would suggest that the ex parte decree passed only against the applying defendant should be set aside but by insertion of the word "proceeding with the suit" requires the ex parte decree to set aside in to as against all the defendants in the suit. However because of some divergence of opinion amongst the different high courts the said section was deleted upon introduction of the provision of Order 9 Rule 13 in the Code of Civil Procedure 1908. However, further complication arises as to whether a decree which is passed on contest against some of the defendants but ex parte against the rest could be set aside in to at the instance of the rest of the applying defendants, the apex court incase of Bank of India Vs. Meheta Bros. reported in (2008) 13 SCC 466 answered the same point and held: "28. Keeping this interpretation of the first proviso to Order 9 Rule 13 of the Code in mind, let us now take up the other question to be answered in this case, which is whether a decree can be set aside against a defendant against whom the suit has been dismissed on contest. At the first blush, we thought it fit to think that a defendant who contested a suit and got the suit dismissed on contest it would be unjust to call back the said defendant who had already contested the matter and got the suit dismissed. This is because, it would amount to jeopardising his interest but it would also result in unending litigation for him. Therefore, before expressing any opinion on the issue posed before us, we have to solve this aspect also. For this reason, we wish to ascertain that there cannot be a rigid answer to this problem. This is because, it would amount to jeopardising his interest but it would also result in unending litigation for him. Therefore, before expressing any opinion on the issue posed before us, we have to solve this aspect also. For this reason, we wish to ascertain that there cannot be a rigid answer to this problem. As regards the question as to whether the term "decree" in the first proviso connotes ex parte decree or the decree in general, we have already come to a firm opinion, as discussed hereinabove, that it actually meant a decree in general. It may be kept on record that, in our view, the intention of the legislature is to use the word "decree" in the first proviso to mean decree in general in view of the changes in the expression made in the Code of Civil Procedure, 1882 and the Code of Civil Procedure, 1908. 29. Therefore, keeping this in mind, let us now consider whether a contested decree by some of the defendants can be set aside while considering the application for setting aside the ex parte decree against one of the defendants. This would, in our view, certainly depend on the nature of reliefs claimed by the plaintiff in his plaint and the nature of the decree in question. If the decree is indivisible, the court would be at liberty to set aside the decree not only against the defendant who applied for setting aside the ex parte decree passed against him, but also as against all or any of the other defendants." 5. THEREFORE the law enunciated in the aforesaid report makes it clear that if a decree is composite one i.e. against the some of the defendants on contest and ex parte against the rest, then the entire decree can be set aside at the instance of the defendant who suffered the ex parte decree if the said decree is indivisible, inseparable and joint. By incorporating the explanation the legislature has taken a safeguard against the maintainability of an application under Order 9 Rule 13 of the Code if an appeal against the decree is disposed of. The said explanation is also applicable in case of indivisible, inseparable and joint decree having passed on contest against some of the defendants and ex parte against the rest on dismissal of an appeal by either set of defendants. The said explanation is also applicable in case of indivisible, inseparable and joint decree having passed on contest against some of the defendants and ex parte against the rest on dismissal of an appeal by either set of defendants. THEREFORE, there is no impediment on the court to set aside the ex parte decree in toto even if one set of defendants have failed to achieve the desired result under the provision of Order 9 Rule 13 of the Code provided the decree is inseparable, joint and indivisible. In other words, two inconsistent decrees should not be allowed to operate the field. 6. BEFORE dealing with the instant revisional application on the law enunciated above in the facts of the present case this court feels that the other judgment cited by the present opposite party is required to be dealt with. In Rabindra Singh Vs. Financial Commissioner, Punjab and Ors. reported in (2008) 7 SCC 663 the apex court was considering a matter relating to the jurisdiction of the land revenue court to set aside the ex parte decree. The fact of the given case was that an application for setting aside the ex parte decree was taken out before the revenue authority who dismissed the same as not maintainable as the provision of the Code of Civil Procedure has no application to a matter under the Punjab Land Revenue Act 1887. The said order was affirmed up to the high court. It is held that all the courts have an incidental power to set aside the ex parte decree on the ground of violation of principle of natural justice even in absence of any express provision subject of course to the statutory interdict. While answering the aforesaid point the apex court held that the parties have more than one remedy against an ex parte decree. Firstly, application for setting aside the ex parte decree; secondly, suit on the ground of fraudulent suppression of service of notice; thirdly, prefer an appeal and fourthly, an application for review. In case of Mahesh Yadav (supra) it is held that an ex parte decree passed against some of the defendants the court is not powerless to set aside the entire decree in these words : "15. In case of Mahesh Yadav (supra) it is held that an ex parte decree passed against some of the defendants the court is not powerless to set aside the entire decree in these words : "15. The proviso appended to Order 9 Rule 13 of the Code of Civil Procedure postulates that when an ex parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the court is not powerless to do so. If an application for setting aside the ex parte decree was maintainable at the instance of the appellants, we fail to understand as to why a separate suit was required to be filed. When an ex parte decree is passed, the defendant may have more than one remedy. He may file a suit contending that the decree was obtained fraudulently. He may file an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. He may prefer an appeal from the ex parte judgment and decree. In a given case, he may also file a review application." 7. THE aforesaid report however does not say that the decree passed ex parte against some of the defendants cannot be set aside in toto. Reverting back to the factual aspect whether the ex parte decree is joint, inseparable and indivisible or the same is of such nature which could operate against the defendant nos. 1-4 even if it is set aside against the present opposite party. 8. THE petitioner instituted a title suit no. 102 of 2005 in the court of Civil Judge (Junior Division), Tehatta, Nadia against the defendant nos. 1- 4 being the villagers in representative capacity and also made the present opposite party being the State of West Bengal as defendant no. 5 therein. It is stated therein that the original plot no. 1478 measuring 1.01 acre of land appertaining to RS Khatian No. 6224 measuring .51 decimal and measuring .50 decimal in RS Khatian No. 4822 out of 1.01 acre of land under P.S - Hogolbaria. THE aforesaid .51 decimal of land previously belonged to one Fatik Chandra Sihi, Brindaban Chandar Sihi and one Susila Bala in equal share which would be evident from the recording made in the record of rights. THE aforesaid .51 decimal of land previously belonged to one Fatik Chandra Sihi, Brindaban Chandar Sihi and one Susila Bala in equal share which would be evident from the recording made in the record of rights. After the publication of the RS record the said co-sharers demarcated their share by raising a boundary wall. However, the remaining .50 decimal of land belongs to Brindaban Chandra Sihi in full ownership. However, subsequently the heirs of the said Brindaban Chandra Sihi who inherited the said .50 decimal of land in RS Khatian No. 4822 and the demarcated land measuring .17 decimal of land in RS Khatian no. 6224. According to the plaintiff his name is recorded in the record of rights in respect of the entire land measuring .67 decimal and comprised in plot no. 1478. It is further stated that he has been disposed on December 8, 2004 and the defendant nos. 1-4 being the villagers are trying to build a football play ground over the suit property. Thus the petitioner prayed for recovery of possession against the trespasser being the villagers represented by defendant nos. 1-4. It is further stated that LR record does not reflect the correct position and as such the present opposite party is also added in the said suit. A leave under Order 1 Rule 8 of the Code is also sought in the said suit. 9. THEREFORE this is a suit essentially for recovery of possession from the defendant nos. 1-4 being the trespasser and the other consequential relief in the form of mesne profit which would be evident from the prayer made in the said plaint : "THEREFORE it is prayed :- (a) That a proper decree of recovery of khas possession after evicting the defendants from the suit property may be given in favour of the plaintiff. 1-4 being the trespasser and the other consequential relief in the form of mesne profit which would be evident from the prayer made in the said plaint : "THEREFORE it is prayed :- (a) That a proper decree of recovery of khas possession after evicting the defendants from the suit property may be given in favour of the plaintiff. (b) That an order of injunction may be given on the prayer of the plaintiff to that, the defendants cannot change the nature and character of the suit property during the pendency of the suit (c) That a decree for mesne profit may be given and after the decree and a separate proceeding by the plaintiff under Order 20 Rule 12 of CPC may be given (d) That a decree for all costs may be given against the defendants (e) That in view of equity, evidences, law any decree or order may be given in favour of the plaintiff as the learned court may deem fit and proper." 10. THE said suit was decreed ex parte on April 6, 2006. THE defendant nos. 1-4 thereafter filed an application under Order 9 Rule 13 of the Code along with an application under section 5 of the Limitation Act for setting aside the said ex parte decree upon condonation of delay. THE trial court did not find the cause shown for delay in taking out the said application for setting aside the ex parte decree to be sufficient and therefore rejected the said application for condonation of delay resulting thereby the dismissal of an application under Order 9 Rule 13 of the Code. It is nobody's case that the said defendants have taken any steps against the said order. However subsequently the present application under Order 9 Rule 13 is taken out by the present opposite party being the defendant no. 5 in the original suit together with an application under section 5 of the Limitation Act for condonatin of delay. It is tried to be contended by the present opposite party that the land in question has already been vested to the state of West Bengal meaning thereby that there is no semblance of title in favour of the petitioner. So far as the possession in the suit plot is concerned there is no whisper in the said application of the present opposite party. So far as the possession in the suit plot is concerned there is no whisper in the said application of the present opposite party. This is not a suit relating to the declaration of title but essentially a suit for recovery of possession on alleged forceful dispossession by the villagers represented by the defendant nos. 1-4. The person who is found in possession has been dispossessed is entitled to recover the possession even in absence of title (Lalu Yaswant Singh Vs. Rao Jagdish Singh AIR 1968 SC 620 ). Even if the decree is allowed to operate having passed in presence of the present opposite party there is no difficulty in dismissing the suit against the present opposite party on the strength of the vesting if ultimately found by the trial court to be correct. Therefore the decree which is passed in the suit is separable and divisible and there is no hesitation in my mind that the court has ample jurisdiction to set aside the decree so far as it relates to the present opposite party is concerned and can make it survive against the defendant nos. 1-4. 11. THEREFORE the impugned order by which the entire decree is set aside against all the defendants is not correct. It is seen that the trial court has set aside the ex parte decree upon being satisfied as to the sufficient cause and such discretionary order should be set aside in seldom unless it is apparent that the trial court has exercised its discretion irrationally, illegally and not in judicious manner. The impugned order is modified to the extent that the said ex parte decree dated June 5, 2009 shall be set aside against the present opposite party only and not against the other defendants. The revisional application is partly allowed. However, there shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.