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2018 DIGILAW 462 (ORI)

Dayanidhi Baidya v. Keshaba Baidya

2018-04-23

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. This appeal is by defendant no.1 against a confirming judgment. 2. The dispute lies in a narrow compass. It is not necessary to recount in detail the case of the parties. Suffice it to say that plaintiff-respondent no.1 instituted the suit for declaration that the defendants have no right, title, interest over the suit land and recovery of possession. The defendants filed written statement denying the assertions made in the plaint, but subsequently they were set ex parte. The suit was decreed ex parte. The defendants filed an application under Order 9 Rule 13 C.P.C. to set aside the ex parte judgment. The same having been dismissed, they filed appeal, which met the same fate. They filed revision, which was eventually dismissed. Thereafter they filed T.A.No.1 of 1995 under Section 96 C.P.C. before the learned Additional District Judge, Jeypore. Learned appellate court held that the appeal, having been filed by the defendants against the ex parte judgment and decree after exhausting remedy available under Order 9 Rule 13 C.P.C., is not maintainable. Held so, it dismissed the appeal. 3. The Second Appeal was admitted on the following substantial question of law: “Whether the lower appellate court was right in holding that the appeal filed by the appellant under Section 96(2) C.P.C. was not maintainable as the appellant had already exhausted the remedy under Order-9, Rule-13 C.P.C. ?” 4. Heard Mr. P.V. Balkrishna, learned Advocate for the appellant. None appeared for the respondents. 5. Mr. Balkrishna, learned Advocate for the appellant submitted that notwithstanding dismissal of application under Order 9 Rule 13 C.P.C., the defendants can pursue appeal under Section 96 C.P.C. 6. In Bhanu Kumar Jain v. Archana Kumar and another, (2005) 1 SCC 787 , the apex Court held that 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 appended to the said provision does not suggest that the converse is also true. 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. 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 regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein. An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the ground that (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. Although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away, if the same is not in derogation or contrary to any other statutory provisions. A right to question the correctness of the decree in a First Appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo thereupon be fixed unless the statute expressly or by necessary implication says so. When an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. When an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz, to prefer an appeal in terms of Order 43, Rule 1 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. 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 Section 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. The “Explanation” appended to Order 9 Rule 13 of the Code shall receive a strict construction. 7. Bhanu Kumar Jain (supra) was quoted with approval in M/s. Neerja Realtors Pvt. Ltd. v. Janglu (dead) Thr. LR. (Civil Appeal No.71 of 2018 disposed of on 29.1.2018). The apex Court held that a defendant against whom an ex parte decree is passed has the option of filing an appeal or application under Order 9 Rule 13 C.P.C. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the appellate court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the appellate court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96. 8. Notwithstanding dismissal of application under Order 9 Rule 13 C.P.C., the appeal under Section 96 C.P.C. is maintainable. When an application under Order 9 Rule 13 C.P.C is dismissed, the defendant can prefer an appeal in terms of Order 43 Rule 1 C.P.C. Once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal. The defendant cannot 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 is open to the defendant to argue in the first appeal filed by him under Section 96(2) of the Code on the merits 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. The substantial question is answered in negative. 9. A priori, the judgment of the learned appellate court is set aside. The matter is remitted back to the learned appellate court for de novo hearing. No costs.