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2013 DIGILAW 630 (CAL)

Pawan Kumar Tiwary v. Jagadamba Singh

2013-09-03

SANJIB BANERJEE

body2013
JUDGMENT Sanjib Banerjee, J. This appeal arises out of an order of remand in an appeal from an ex-parte decree. Though some of the other defendants have applied under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside the ex parte decree, the first defendant carried an appeal therefrom and urged, inter alia, that the writ of summons had not been served on the first defendant and that the suit could not have been set down for ex parte hearing. The plaintiffs, who are the appellants herein, insist that there is a distinction between Order IX Rule 13 of the Code and Section 96 thereof and, qualitatively, the assessment made under either provision is distinct and may not be comparable. According to the plaintiffs, it is open to a defendant suffering an ex parte decree to either apply for setting aside thereof under Order IX Rule 13 of the Code or prefer an appeal therefrom under Section 96 of the Code or carry both a setting aside application and an appeal therefrom, subject to the caveat in the Explanation to Order IX Rule 13 of the Code. The plaintiffs suggest that in an appeal from an ex parte decree, the appealing defendant has to primarily demonstrate that the decree could not have been passed, or was erroneously passed, on the material relied upon by the plaintiff; that in such appeal it may not be open to the defendant to urge grounds that the summons in the suit had not been duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. The first defendant refers to Section 105 of the Code that permits, in course of an appeal from a decree, “any error, defect or irregularity in any order, affecting the decision of the case” to be challenged upon indicating the same in the memorandum of appeal. The first defendant refers to Rules 17 and 19 of Order V of the Code and suggests that the error or irregularity in setting the suit down for ex-parte hearing is evident from the face of the records. The first defendant places the order-sheet pertaining to the suit for eviction of the defendants as licencees under a partnership firm in which the plaintiffs are partners. The first defendant places the order-sheet pertaining to the suit for eviction of the defendants as licencees under a partnership firm in which the plaintiffs are partners. The first defendant insinuates that in the suit having been lodged in February, 2010 and decreed ex parte within three months by brushing aside the first defendant’s repeated requests to be served copies of the plaint, the trial court acted illegally and with material irregularity that was appropriately dealt with by the appellate court in the order of remand upon the decree being set aside. The order-sheet relating to Title Suit No. 18 of 2010 lodged before the 3rd Court of Civil Judge (Jr Division), Howrah, makes interesting reading, particularly as the ex parte decree was passed within three months, to the day, of the institution of the suit. The plaint was received by the court on February 17, 2010, the court fees and process fees were found to have been paid and directions were issued by the first order for issuance of summons through court as well as by registered post. The matter was adjourned till March 24, 2010 for service return and postal acknowledgement. The suit was taken up next on March 24, 2010 when the service of the summons on the defendants was found to be in order and, upon the defendants being absent, it was set down for ex-parte hearing. The order needs to be noticed in its entirety: “Order dated 24.03.10. Pltff. file hazira. S/R is returned after service. S/R kept with the record. Defdts. are absent without step. So the suit will be proceed ex-parte hearing. To 08.4.10 for ex-parte hearing.” On April 8, 2010 documents were filed by the plaintiffs, the first plaintiff was examined and the matter adjourned to April 16, 2010 for argument. On April 16, 2010 the plaintiffs filed two further documents and the suit stood adjourned to April 19, 2010. The order passed on April 19, 2010 is of some relevance in the present context: “Order dated 19.4.10. Plaintiff files hazira. Defendant no. 1 Jagadamba Singh filed vokalatnama, a searching slip and a petition praying a direction to pltff. To supply copy of plaint for filing w.s. I find from this suit record that the suit is being proceeded ex-parte against the defendants. The defendants have not filed any w.s. show cause, petition and petition for vacating ex-parte. Plaintiff files hazira. Defendant no. 1 Jagadamba Singh filed vokalatnama, a searching slip and a petition praying a direction to pltff. To supply copy of plaint for filing w.s. I find from this suit record that the suit is being proceeded ex-parte against the defendants. The defendants have not filed any w.s. show cause, petition and petition for vacating ex-parte. Under such circumstances, the prayer of defendant can not be considered and entertained at this stage and the same stands refused. This date is fixed for passing order. I find some intricate questions of law are involved. and hence further clarification is required to be heard. Fixing 29.4.10 for further exp. hearing and order.” On the next date that the suit was taken up, the first defendant filed an application seeking a copy of the plaint and another application for inspection of the suit records. The first defendant was required to effect service of the application on the plaintiffs and the matter was directed to appear on May 7, 2010, presumably for the first defendant’s applications to be taken up and the ex-parte hearing of the suit to be continued thereafter if the applications were to be rejected. Though it is evident that the first defendant applied for leave to inspect the suit records and such application was not dealt with by the court on April 29, 2010, later on the same day the first defendant caused an affidavit affirmed by one Akshya Behara to be filed and the court recorded the receipt of such affidavit without indicating the purpose thereof. On the next adjourned date, on May 7, 2010, the judge was unavailable, but the officiating judicial officer recorded the receipt of an application by one of the defendants seeking an adjournment of the matter and rejected such plea without assigning any reason though the suit could not have been taken up on such date because of the regular judge’s absence. The next order, passed on May 12, 2010, is emphasised by the first defendant as being eloquent of the irregularity with which the trial judge proceeded to decide the suit ex-parte: “Order dated 12.5.2010 Plaintiffs file hazira. Defendants filed two separate petitions praying for adjournment of the case and the prayer for dismissal of the suit for noncompliance of court’s order. I have heard both sides. I find no (sic. Defendants filed two separate petitions praying for adjournment of the case and the prayer for dismissal of the suit for noncompliance of court’s order. I have heard both sides. I find no (sic. on) perusal of the record that the defendants did not file written statement or show cause petition or vacating exparte order inspite of the fact that the suit was fixed for exparte hearing and accordingly the suit is being proceeded exparte. Defendant no.1 though is aware of these facts and the defendants’ prayer for supply of copy etc. was already refused by this court on 19.4.2010 has been filing these petitions which should not be allowed in view of the fact that the defendants having known everything about the suit and the proceedings in as much as this court cannot vacate the exparte proceedings wherein the only delivery of order is awaiting. So the petitions filed by the defendant Jagadamba singh stand rejected. This day is also fixed for further exparte hearing and order in view of the fact that certain intricate questions of law were involved and heard Ld. Advocate for the plaintiffs in full. To 17.05.2010 for order.” The first defendant refers to a judgment reported at (2005) 1 SCC 787 (Bhanu Kumar Jain v. Archana Kumar) for the proposition that it is open to a defendant suffering an ex-parte decree to prefer an appeal therefrom and canvass a ground that the suit could not have been posted for ex-parte hearing. Paragraph 24 to 27 of the report have been placed in such context: “24. An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the following grounds: (i) the materials on record brought on record in the ex-parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and (ii) the suit could not have been posted for ex-parte hearing. “25. In an application under Order 9 Rule 13 of the Code, however, 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. “26. In an application under Order 9 Rule 13 of the Code, however, 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. “26. 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. “27. In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an appellant to raise a contention as regards correctness or otherwise of an interlocutory order passed in the suit, subject to the conditions laid down therein.” In Bhanu Kumar Jain, a partition suit was filed by a son against his mother and sister in which a counter-claim was lodged by the husband of the sister alleging mortgage of the property by deposit of title deeds by the mother. After several adjournments on the ground of the defendants not being represented, the suit was posted for ex parte hearing. The defendants applied under Order IX Rule 7 of the Code for setting aside the order posting the suit for ex parte hearing. Such application was rejected and, on the following day, a preliminary decree for partition was passed at the instance of the plaintiff. The defendants applied under Order IX Rule 13 of the Code for setting aside the ex parte preliminary decree. Such application was rejected and an appeal was filed therefrom under Order XLIII Rule 1 of the Code which failed. The defendants applied under Order IX Rule 13 of the Code for setting aside the ex parte preliminary decree. Such application was rejected and an appeal was filed therefrom under Order XLIII Rule 1 of the Code which failed. A civil revision was lodged against the order rejecting the defendants’ application under Order IX Rule 7 of the Code, which was also dismissed. An appeal from the ex parte decree was carried to the High Court. The High Court allowed the first appeal by holding, inter alia, that the trial court had erred in law in proceeding ex parte against the defendants. It was such order of the High Court that was before the Supreme Court. The Supreme Court set aside the High Court order on the ground that it could not “be sustained on the premise on which the same is based” and permitted the defendants to raise their contentions “as regards merit of the plaintiff’s case in the said appeal confining their contentions to the materials which are on record of the case.” It must be appreciated that the final decision in Bhanu Kumar Jain was not because an appeal from an ex parte decree could not accommodate the challenge to it on grounds other than the merits of the case, but because the appealing defendants in that case were precluded by the principle of issue estoppel from urging anything other than the merits of the case in the appeal since their petition under Order IX Rule 13 of the Code had been dismissed and such order affirmed. What the judgment further instructs, and is an authority for, is that notwithstanding the Explanation to Order IX Rule 13 of the Code operating in the stated direction and not conversely, if a ground, which is capable of being urged both in an application under Order IX Rule 13 of the Code and in the appeal from the ex parte decree, has been finally decided in the appeal arising out of the order passed on the application under Order IX Rule 13 of the Code, such issue cannot be reopened at the subsequent hearing in the appeal filed from the ex parte decree. On a conjoint reading of Section 96 and Section 105 of the Code it is evident that not only may a defendant appeal against an ex parte decree on the merits of the case as made out by the plaintiff or on the acceptance of the merits by the trial court, but also on the ground of there being any error or defect or irregularity culminating in the decree being made. The expression, “any error, defect or irregularity in any order, affecting the decision of the case” as appearing in the later part of Section 105 of the Code dealing with an appeal from a decree would embrace in its fold, in the context of an ex parte decree, the order by which the suit was posted for ex parte hearing. There is a qualitative distinction between what may be urged in an application for setting aside an ex parte decree under Order IX Rule 13 of the Code and in an appeal therefrom. Order IX Rule 13 of the Code has two limbs to it: the defendant suffering an ex parte decree may satisfy the Court that the summons were not duly served; or, such defendant may satisfy the Court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The first limb of Order IX Rule 13 can also be urged in course of an appeal from the ex parte decree since the non-service of the writ of summons would be a defect or irregularity in the order posing the suit for ex parte hearing. However, the second limb of Order IX Rule 13 of the Code has an element of the defendant citing grounds other than any fault on the part of the Court to justify the defendant’s non-appearance at the hearing. It is only such aspect of the matter – the excuse proffered by the defendant for nonappearance – covered by Order IX Rule 13 of the Code that may not be urged as a ground in an appeal from an ex-parte decree. It would be profitable to amplify the two elements envisaged in the second limb of Order IX Rule 13 of the Code. It would be profitable to amplify the two elements envisaged in the second limb of Order IX Rule 13 of the Code. A defendant who has suffered an ex-parte decree may satisfy the Court that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing either because of a mistake on the part of the Court or because of some supervening circumstance preventing the defendant from appearing or being represented at the final hearing. Juridically, there is a gulf of difference between the two species of grounds and they can neither be approached or dealt with in similar manner. It is possible that a suit is posted for hearing on a particular date but it is mistakenly taken up on some other day without the defendant having any opportunity of being aware of such date. The non-appearance of the defendant on such date when the suit is mistakenly taken up would not be a fault of the defendant but it would be a mistake committed by Court. However, if the suit is appropriately taken up by the Court on the date fixed for its hearing and the defendant is not represented for no fault on the part of the Court or the plaintiff, the defendant may still have the ex parte decree set aside on the ground that the defendant was otherwise prevented from being present or represented at the time of hearing. Even the first element under the second limb of Order IX Rule 13 of the Code is capable of being urged as a ground in an appeal from the ex parte decree. It is only the other aspect in the second limb of Order IX Rule 13 of the Code which is incapable of being urged as a ground in an appeal from an ex-parte decree. It is only the other aspect in the second limb of Order IX Rule 13 of the Code which is incapable of being urged as a ground in an appeal from an ex-parte decree. Such position is obvious because the entirety of the first limb of Order IX Rule 13 of the Code and the first element of the second limb of Order IX Rule 13 of the Code as illustrated above may amount to a defect or error or irregularity on the part of the Court which is capable of correction in the appeal from the decree; but the other element covered by the second limb of Order IX Rule 13 of the Code is no error or defect or irregularity on the part of the Court and is incapable of being addressed in an appeal from an ex-parte decree. It must never be lost sight of that the fundamental purpose of an appeal is to ensure the integrity of the system in the sense that it allows the system to correct itself and is a check before a judicial pronouncement which is amenable to an appeal attains finality unless the order is accepted by the parties. The power of judicial review, in the context of an appeal or a revision, includes a scrutiny of the procedure adopted in the previous forum and the propriety of the decision that is assailed, subject to the scope of the authority exercised (the scope in a first appeal on facts being quite distinct from the scope in a second appeal limited to questions of law). In course of an appeal from an ex-parte decree, any defect or error or irregularity on the part of the trial court is capable of correction and the appeal is liable to be allowed if such error or defect or irregularity is perceived to be significant enough. However, if the defendant suffering an ex parte decree has been prevented by some other reason beyond the control of the Court resulting in the defendant’s non-appearance at the time of hearing, such ground cannot be urged for the first time in an appeal from the ex-parte decree and has, per force, to be carried by way of an application under Order IX Rule 13 of the Code before the Court that passed the ex-parte decree. It is not unusual for two species of remedies from the same perceived wrong to overlap in certain aspects in their operation and application. There may be some distinct features covered by the several remedies from the same perceived wrong, but they may not be so compartmentalised that they may never be resorted to in the alternative or simultaneously. But subject to procedural propriety and the bounds of authority available in course of the jurisdiction exercised in the several roads to the same destination, it is the cause of justice that has to be advanced as that is both the raison d’etre of the system and the object of the exercise. The first defendant seeks to sustain the order on the principle recognized in Order XLI Rule 22 of the Code. The first defendant submits that since the first defendant had relied on the trial court records in course of the appeal, the first defendant should be permitted to demonstrate that the appellate order is justified on merits and, indeed, that the appellate court should have set aside the ex-parte decree and directed the suit to be decided on merits upon the first defendant being afforded an opportunity to file his written statement. The first defendant says that the provisions of Order V Rules 17 and 19 were not complied with before the trial court set the suit down for ex parte hearing. A judgment reported at (2011) 3 Cal LJ 151 (Siba Prasad Saha v. Gouranga Mohan Saha) is placed in such regard for the proposition that the mandatory requirement of Order V Rule 19 had to be complied with before the court could declare that the summons had been duly served on a defendant for the suit to proceed ex parte against such defendant. The first defendant says that contrary to what was recorded in one of the orders passed by the trial court after the first defendant had sought copies of the plaint in an attempt to contest the suit, the first defendant had applied for recalling the order setting the suit down for ex-parte hearing. The first defendant submits that since the application was on record and such application militates against the trial court orders dated April 19, 2010 and May 12, 2010, the appellate court ought to have set aside the ex-parte decree on such ground alone. The first defendant submits that since the application was on record and such application militates against the trial court orders dated April 19, 2010 and May 12, 2010, the appellate court ought to have set aside the ex-parte decree on such ground alone. The first defendant claims that notwithstanding the first defendant not preferring any appeal from the order impugned herein, he is entitled to urge the ground that on the twin counts of the mandatory provision of Order V Rule 19 not being complied with and the failure of the trial court to appreciate that the first defendant had applied for recalling the order setting the suit down for ex-parte hearing, this court should take such matters into account and modify the order impugned by setting aside the ex parte decree and directing the suit to be heard on merits upon the first defendant being afforded a chance to file his written statement. While it is true that in course of an appeal not restricted to questions of law, the appellate court has the authority to conduct the matter as the forum against whose order the appeal arises, such assumption of jurisdiction should be with a decree of circumspection. In particular, when the appeal arises from an order of remand, the superior appellate forum should be slower in assuming the jurisdiction of the inferior appellate forum. At any rate, the principle cannot be invoked by a respondent who has not carried an independent appeal or cross-objection to obtain a greater relief than what was granted to the respondent by the previous forum and leave the appellant more disadvantaged upon preferring the appeal than the appellant would have been if the appeal had not been lodged. Order XLI Rule 22 mandates that any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour. This aspect may be appreciated by referring to a Full Bench decision reported at AIR 1943 Mad 698 (Gaddem Chinna Venkata Rao v. Koralla Satyanarayanamurthy) which has been approved in the judgment reported at (2002) 6 SCC 1 (Nalakath Sainuddin v. Koorikadan Sulaiman). This aspect may be appreciated by referring to a Full Bench decision reported at AIR 1943 Mad 698 (Gaddem Chinna Venkata Rao v. Koralla Satyanarayanamurthy) which has been approved in the judgment reported at (2002) 6 SCC 1 (Nalakath Sainuddin v. Koorikadan Sulaiman). A party who has succeeded in the result of a decision inspite of one or more of the several grounds urged by him having been negated or overlooked, cannot and need not appeal as regards such grounds, however erroneous the decision thereon, because there is no right of appeal to a party who has succeeded. The distinction is that such party may support or sustain the order or decree in his favour, but may not obtain an alteration which would give him a further advantage since the further advantage may only be secured by an appeal or a cross-objection. The first defendant was not totally successful before the lower appellate forum; and, to the extent that he failed, it was open to him to appeal or cross-object. The first defendant has chosen not to file an appeal or a cross-objection. The appellate court below, in course of discussing the first defendant’s challenge to the ex-parte decree on merits, merely observed that the first defendant intended to contest the suit in the trial court and, without reference to such aspect of the first defendant’s challenge to the ex parte decree as permissible under Order IX Rule 13 and capable of being canvassed in an appeal from an ex-parte decree, remanded the matter for a fresh decision. An order of remand is made by an appellate court either under Order XLI Rule 23 or under Rule 23A. In the instant case, the order of open remand by the appellate court below leaves the trial court free even to assess the propriety of the suit being taken up ex parte. In referring to Order V Rule 19 and the application apparently filed by the first defendant before the trial court for recalling the order setting the suit down for ex parte hearing, the first defendant, in effect, suggests that the lower appellate court should have set aside the decree as sought in such appeal by the first defendant and should have permitted the suit to proceed on contest upon the first defendant being allowed to file his written statement. The argument of the first defendant, based on either ground as aforesaid, cannot be to sustain the order of remand; because if either ground is accepted, the ex parte decree may have to be set aside and there may be no question of remand. In the first defendant not having preferred any appeal or cross-objection from the order impugned, the applicable limb of Order XLI Rule 22 of the Code would not permit the first defendant to canvass a ground in course of this appeal that may leave the plaintiffs worse off than if they had not preferred this appeal. Though the first defendant has not invoked Order XLI Rule 33 of the Code, even such provision may not, ordinarily, be pressed into service for a respondent in an appeal to get a larger or higher relief than what was granted by the order impugned. In the first defendant not preferring an appeal or a cross objection from the order impugned, the first defendant must be seen to be satisfied with the order of remand. What is permissible for the first defendant to do in the circumstances is to urge all grounds to sustain the order of remand even if such ground was not cited by the appellate court below in support of the order of remand. The first defendant cannot now be heard to say that the appeal should have been allowed by setting aside the ex parte decree, whether on the merits of the plaintiffs’ case or in the suit having been improperly set down for ex parte hearing. The principle is that the respondent in an appeal is entitled to support the decree or order by challenging any of the findings that might have been rendered against the respondent; or by urging other grounds in support of the order or decree which are not recorded in the impugned judgment. For supporting the impugned order or decree, it is not necessary for a respondent in the appeal to file a memorandum of cross-objection challenging a particular finding or asserting that some other reason ought to have been furnished in support thereof when the order or decree is in favour of the respondent. For supporting the impugned order or decree, it is not necessary for a respondent in the appeal to file a memorandum of cross-objection challenging a particular finding or asserting that some other reason ought to have been furnished in support thereof when the order or decree is in favour of the respondent. The principle embodied in Order XLI Rule 22 of the Code need not be traced to such provision alone; it is a basic principle of justice applicable to courts of superior jurisdiction [See the judgment reported at (2008) 12 SCC 1 (Balbir Kaur v. U.P. Secondary Education Services Selection Board)]. The order impugned has ended up as a concoction of a bit of this and a bit of that without being either in any convincing degree. There is no discussion by the lower appellate court, particularly in the segment of the judgment entitled “decision with reasons”, of the challenge to the ex-parte decree on the ground that the suit had been improperly set down for ex parte hearing. It would, in such circumstances, be in the fitness of things for the judgment and order impugned herein to be set aside and the matter remanded for fresh consideration by the appellate court below on the grounds that may be urged in accordance with law. The observations in this order should be regarded to be in the context of the questions that have arisen herein and should not influence the appellate court below in deciding the appeal afresh in accordance with law. FMA 672 of 2012 is allowed by setting aside the judgment and order impugned and remanding the appeal to be decided afresh in accordance with law, preferably within a period of three months from the date of deposit of an authenticated copy of this order. Pending disposal of the appeal, the plaintiffs will not take any further steps for execution of the ex-parte decree. In view of the legal issues which have been canvassed, there will be no order as to costs. Certified website copies of this judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.