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2016 DIGILAW 183 (ORI)

Manabhanjan Patro v. Nilaratha @ Nilaratna Patro

2016-03-03

D.DASH

body2016
JUDGMENT 1. This appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Boudh in RFA No. 11 of 2002 refusing to interfere with the judgment and decree passed by the learned Civil Judge (Sr. Divn.), Boudh in T.S. No. 64 of 2000. 2. The respondent as the plaintiff had filed the suit for partition of the properties described in schedule A and B of the plaint. The appellants herein before this Court were the defendant nos. 1 and 2 in the trial Court whereas the respondent nos. 2 and 3 are the son and brother of the plaintiff and the defendant nos. 1 and 2. It may be stated here that appellant no. 1 died during pendency of this appeal and his legal representative had prayed to be substituted but he also having died before the order of substitution, now the appeal is being pursued by the legal representatives of deceased appellant no. 2 being substituted on account of death of appellant no. 2. Similarly, the respondent no. 3 having died, her name has been expunged as dead. 3.Plaintiff’s case is that one Ananda Patra had four sons namely, Sachitananda, Nilaratna, Manasbhanjan and Chitranjan. Sachitananda during the lifetime of his father had separated himself from his father and brother and had relinquished his interest over ‘A’ schedule land in favour of his father and brother. Ananda died in the year 1950 and these three sons i.e. the plaintiff, defendant nos. 1 and 2 succeeded to the property described in schedule ‘A’ of the plaint. It was also so mutated in their names. While living jointly they acquired agricultural land measuring Ac. 6.550 decimals as described in schedule ‘B’ of the plaint. It is stated that all the lands were/are in joint possession of the plaintiff, defendant nos. 1 and 2. The plaintiff being a Govt. servant was remaining outside and on his return to the native place on his superannuation in the year 1998, he expressed his desire for partition of schedule ‘A’ and ‘B’ land and claimed his share for being separated and allotted, this having been turned down by the defendants, the suit with the prayer for a preliminary decree for partition of schedule ‘A’ and ‘B’ land amongst himself, defendant nos. 1 and 2 by metes and bounds has been filed with further prayer of deputation of Civil Court Commissioner to make separate allotment of properties in accordance with preliminary decree for the final decree to be passed. The defendants 1 and 2 being summoned entered their appearance on 27.4.2001 and thereafter seeking several adjournments which were favourably granted, finally filed their written statement on 19.4.2002. Defendants nos. 3 and 4 however did not file their written statement. The defendant nos. 1 and 2 in their written statement admitted the relationship between the parties and so also the fact that the properties described in schedule ‘A’ and ‘B’ of the plaint for liable to be partitioned as prayed for in the plaint. Para-10 of the written statement runs as under :- “10. That the division of the joint family properties made by the Bhadraloks on 20.10.99, reduced to writing, unanimously was agreed upon by the parties and on that basis, the Hon’ble Court may be pleased to make a division of the suit ‘A’ & ‘B’ properties among the parties.” Having filed the above written statement, they also went for amendment of the written statement for insertion of a para describing the written statement for insertion of a para describing the joint family expenditure which was allowed. Again they had made a prayer for amendment of the written statement incorporating a counter claim under Order 8 Rule 6-A of the Code of Civil Procedure advancing a claim of Rs. 1,00,932/- on the plaintiff for the expenses met towards the schooling of the plaintiff and for his up bring after death of father. This petition for amendment stood rejected by order dated 30.7.2002 as it was found not necessary for determination of the real controversy between the parties. A revision being carried, the order was not interfered with. The suit thereafter proceeded and it stood decreed preliminary on contest against defendant nos. 3 and 4 and ex parte against defendant nos. 1 and 2. The defendant nos. 1 and 2 instead of moving the trial Court by filing an application under Order 9 Rule 13 of the Code of Civil Procedure straight way challenged the ex parte decree by filing an appeal under Section 96(2) of the Code. 3 and 4 and ex parte against defendant nos. 1 and 2. The defendant nos. 1 and 2 instead of moving the trial Court by filing an application under Order 9 Rule 13 of the Code of Civil Procedure straight way challenged the ex parte decree by filing an appeal under Section 96(2) of the Code. The lower appellate Court having dismissed the said appeal, the move is before this Court by carrying an appeal under Section 100 of the Code. This appeal has been admitted on the following substantial questions of law:- “Whether the first appellate Court was right to come to the conclusion that when a remedy under Order 9 rule 13 of the Code of Civil Procedure against the ex parte decree was available to the appellants, the remedy by way of appeal under Section 96 (2) of the Code of Civil Procedure was not available to the appellants?” 4.Mr. S.P. Mishra, learned Senior Counsel for the appellants submits that the view taken by the lower appellate Court that since the appellants have not availed the remedy by filing an application under Order 9 Rule 13 of the Code to set aside the ex parte decree and when has approached the appellate Court directly seeking the same relief, it is not permissible in the eye of law, is untenable. According to him, in an appeal under Section 96(2) of the Code, the appellant can very well urge in showing that the trial Court ought not to have gone for ex parte hearing and decide the suit ex parte against the appellant as there was sufficient cause for the appellant to remain absent on the date of hearing which ought to have been accepted by giving further opportunity. In this connection he has referred to paragraph 8 of the judgment of the lower appellate Court. In this connection he has referred to paragraph 8 of the judgment of the lower appellate Court. 5.Learned counsel for the respondent no.1 submits that here actually the substantial question of law which has been formulated for the purpose of admission of this appeal finding that the same arises in the case for being answered does not survive for consideration and decision at all and otherwise also the appeal is liable to be dismissed as there surfaces no ground to interfere with the preliminary decree for partition passed by the trial Court which has been discussed by the lower appellate Court in finally arriving at a conclusion that there remains no merit in the appeal. According to him, in view of the written statement where the appellants admitted the relationship and conceded to the prayer of the plaintiff as regards partition of schedule ‘A’ and ‘B’ properties, the trial Court had no other option but to decree the suit preliminary and it even ought to have been done resorting to the provision of Order 12 Rule 6 of the Code. However, instead of doing so when the Court has gone to frame issue with regard to the quantification of share among the parties over the suit land and has answered the same, in fact the appellants have got nothing to be aggrieved by that very preliminary decree which in no way has affected their interest over the properties as well as their entitlement to the share as per law leaving it to be finally worked out in course of the final decree proceeding viewing the convenience of the parties and taking into consideration all other equitable factors. 6.On going through the judgment of the lower appellate Court, it is seen that although a view has been taken that the appellants having not availed the remedy available under Order 9 Rule 13 of the Code , the ground can be entertained in an appeal under Section 96 (2) of the Code that the ex parte proceedings was wrongly taken against them which resulted in passing of the ex parte decree, but then the lower appellate Court has also dealt on the merit of the case. In the case of Nagar Palaka Nigam Gwalior vrs. Motilal Munnalal, AIR 1977 M.P. 182 , a similar situation was involved. In the case of Nagar Palaka Nigam Gwalior vrs. Motilal Munnalal, AIR 1977 M.P. 182 , a similar situation was involved. Relying on an earlier observation of a Division Bench in the case of Ramlal v. Rewa Coal Fields Ltd., reported in 1996 M.P.L.J. 507 the Bench gave the following observation:- “It may be pointed out that no application was filed by the Corporation under Order 9 Rule 13 for setting aside the ex parte decree and only an appeal has been preferred against it. There appears to be a conflict of opinion among various High Courts as to the power of the Appellate Court to question the property of the ex parte order itself and to remand the case for re-trial. However, we have a Bench decision of our own Court reported in 1996 MPLJ 507 , (Ramlal v. Rewa Coal Fields Ltd.) wherein it has been held that an error, defect or irregularity which has affected the decision of the case may be challenged in appeal against the decree whether ex parte or otherwise. The appeal against the ex parte decree under Sec. 96(2) of the Code of Civil Procedure cannot be converted into proceedings for setting aside the decree with the concomitant duty of affording to the parties an opportunity of adducing evidence for and against any ground, that may be raised in support thereof under O.9, Rule 13 C.P.C. Nor can such an appeal be converted into an appeal under Order, Rule 1 (d), CPC. The reason is that when a particular remedy is provided for setting aside an ex parte decree and there is, by way of appeal, another special remedy against an order refusing to set it aside, these remedies and none other must be followed. xxx xxx. In our opinion, it is open to a defendant, who has filed an appeal against an ex parte decree under S. 96(2) of the Code, to show from the record as it stands that there is in the order proceeding ex parte against him, any error, defect or irregularity which has affected the decision of the case. If he succeeds in so doing, the ex parte decree will be set aside and the case will be remitted for retrial. If he succeeds in so doing, the ex parte decree will be set aside and the case will be remitted for retrial. But in the appeal against the ex parte decree he cannot be allowed to show that he was prevented by any sufficient cause from appearing at the hearing. For that purpose, he must have recourse to the special procedure under O. 9, R. 13 of the Code for setting aside the said decree.” In the case of Smt. Maya Devi & others V. Mehria Gram Dall Mill, Hissar and others, AIR 1988 P& H 176, the Punjan and Haryana High Court also took a similar view. In the case of Bahnu Kumar Jain vrs. Archana Kumar and another, AIR 2005 SC 626 though the situation was not exactly similar, yet examining the legal position the apex Court observed as follows: “The dichotomy can be resolved by holding that 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 S. 96 (2) of the Code on the merit 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.” In the case of Jananedra Mohan Bhadhury and another vrs. Prafulla Nanda Goswami and others; AIR 1928 Calcutta 812, the question was the propriety of the order refusing an adjournment made by the defendant and thereafter the proceeding with the suit ex parte. There learned single judge observed that in a case in which as ex parte decree has been passed and the aggrieved party has not availed of the remedy by way of an application under Order 9, Rule 13, C.P.C., he is not precluded from raising the question of propriety of the refusal to adjourn his case, in the appeal which he prefers from the ex parte decree itself. It was also observed by learned single judge that the Court is legally competent to pass an order of remand under the provisions of Section 151, C.P.C. In the case of Gangadhar Bhat v. Srikant & another, AIR 1981 Karnataka 35, also the question was the propriety of the refusal of adjournment and passing of the ex parte order. In that case learned single judge took a similar view as taken by the learned single judge of the Calcutta High Court. In the case of Lal Devi and another v. Vaneeta Jain & others; (2007) 7 SCC 220, the propriety of the order of the High Court in not interfering with the order of learned District Judge passed on a petition under Order 9 Rule 13, C.P.C. which was not pressed. The legal question and issues involved in that case was somewhat different. A cumulative reading of the above noted judgments makes it clear that it is open to a defendant who has filed an appeal against an ex parte decree under Section 96(2) of the Code to show from record as it stands that there is in the order proceeding ex parte against him any error, defect or irregularity which has affected the decision of the case. If he succeeds in going so the ex parte decree can be set aside and the case can be remitted for retrial, but in such an appeal against ex parte decree, the defendant cannot be allowed to show that he was prevented by sufficient cause from appearing at the hearing. For that purpose he must have recourse to provision under Order 9 Rule 13, C.P.C. for the simple reason that in deciding whether notice had been served on the defendant or the defendants were prevented by sufficient cause from appearing on the date of hearing evidence on factual aspects are to be led by the parties and such evidence are to be perused. Moreover, when specific provision is available under the Code, the same cannot be ignored and extraordinary power of a Court cannot be invoked to grant the relief. Therefore, in an appeal under Section 96, C.P.C. against an ex parte judgment and decree the appellate Court is not permitted to examine the sufficiency of the cause of non-appearance of the defendants on the date of hearing. Therefore, in an appeal under Section 96, C.P.C. against an ex parte judgment and decree the appellate Court is not permitted to examine the sufficiency of the cause of non-appearance of the defendants on the date of hearing. The appellate Court can however examine the correctness of ex parte judgment on the basis of the materials available on record an also if there was any error, defect, or irregularity which affected the decision of the suit. 7.Now adverting to the case in hand it is seen that the lower appellate Court has thus rightly gone to examine the correctness of the judgment and preliminary decree on their own merit not finding any error, defect or irregularity so as to affect the decision. In clear and categorical term upon perusal of the pleadings as already stated it has been held that even if the appellants would have contested the suit and led evidence the preliminary decree as has been passed would have been the obvious outcome, since they could not have led any evidence travelling beyond their pleadings and had it also been so done, the trial Court would not have looked into it on the ground of having no foundation in the pleading and rather contrary to it. It is further seen that although the trial Court has refused the amendment of the written statement for insertion of a counter claim the same in fact does not have any bearance on the result of the suit in granting the reliefs as prayed for by the plaintiff. Moreover, rejection of amendment of the written statement for insertion of a counter claim even if is said to have been so ordered without being alive to the settled position of law that itself does not preclude those defendants from filing a separate suit for said relief within the period of limitation as provided for the purpose and it cannot be said that as the defendants accepted the said order of refusal of entertainment of counter claim, that stands as a bar for the subsequent suit claiming the relief. The defendant in a suit even where counter claim is permissible to be advanced does not do so, that does not either preclude him from filing a suit later for the same relief nor stand as constructive res judicata. The defendant in a suit even where counter claim is permissible to be advanced does not do so, that does not either preclude him from filing a suit later for the same relief nor stand as constructive res judicata. Essentially the insertion of the provisio relating to the counter claim has to be concerning the same subject matter and within the pecuniary jurisdiction of the Court where the lis is pending and the consideration also remains that the same can be conveniently decided so as to either grant or refuse the reliefs advanced in the counter –claim instead of driving the party to a separate suit. In the present case in a suit for partition filed by the plaintiff, the defendants had sought to introduce the counter claim for recovery of money from the plaintiff stating those to have been spent after the plaintiff for the purpose of his education and thus the same is liable to be paid by the plaintiff, when the admitted relationship is that the defendant nos. 1 and 2 are none other than the brothers of the plaintiff. 8.For the aforesaid discussion and reason, this Court accepts the submission of the learned counsel for the respondent that the substantial question of law as framed for the purpose of admission of the appeal accordingly does not survive for consideration and for being answered as its answer even being rendered in favour of the appellants, that would not be a ground to interfere with the preliminary for partition passed by the trial Court as confirmed by the lower appellate Court as it is wholly defensible on merit even accepting the entire pleading of the appellants in their written statement. 9.In the result, the appeal stands dismissed. No order as to cost. Appeal dismissed.