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2021 DIGILAW 79 (JK)

Abu Hussain v. Mohammad Abdullah

2021-03-16

SANJAY DHAR

body2021
JUDGMENT : 1. By this order, preliminary objection raised by the learned counsel for the respondent No.1 with regard to the maintainability of this appeal is proposed to be determined. 2. Before coming to the preliminary objection raised by the learned counsel for the respondent No.1, let me give a brief background of the facts leading to filing of this appeal. 3. It appears that the respondent No.1 had filed a suit against the appellant and respondents 2 and 3 before the Court of Principal District Judge, Kargil. Through the medium of said suit, the plaintiff had sought a declaration that he is owner of land measuring 1½ kanals situated at Khurbathang Kargil, which he had purchased from the appellant and respondent No.3, who happened to be the proforma defendants No. 2 and 3 to the suit. A permanent injunction restraining the defendants from proceeding with the construction of house on the aforesaid land with a mandatory injunction directing the defendants to remove the material from the suit land was also sought 4. It appears that the suit was decreed in exparte in favour of the plaintiff i.e. the respondent No.1 herein, by virtue of an exparte judgment and decree dated 13.12.2019. An application for setting aside the aforesaid exparte judgment and decree came to be filed by the appellant and respondent No.3 herein before the learned trial court but the same was dismissed by the learned trial court vide its order dated 26.12.202, which has been impugned by way of the instant appeal. 5. It is the contention of learned senior counsel appearing for the respondent No.1 that the exparte judgment and decree that was passed by the learned trial court has nothing to do with the appellant herein as he was only a proforma defendant in the suit. According to the learned senior counsel, the judgment and decree has been passed only against the contesting defendant i.e. respondent No.2 herein and, as such, it cannot be stated that the appellant is an aggrieved person. On this ground, it is urged that the appeal filed by the appellant is incompetent. The learned senior counsel has relied upon the judgment of the Supreme Court reported in (2013) 11 SCC 296 , the judgment of Chattisgarh High Court reported in AIR 2009, Chatt. 44 and the judgment of Delhi High Court reported in AIR 1977 Del. 110 . 6. The learned senior counsel has relied upon the judgment of the Supreme Court reported in (2013) 11 SCC 296 , the judgment of Chattisgarh High Court reported in AIR 2009, Chatt. 44 and the judgment of Delhi High Court reported in AIR 1977 Del. 110 . 6. On the other hand, learned counsel for the appellant has submitted that the appellant was a defendant in the suit before the trial court and his application for setting aside the exparte judgment and decree was dismissed by the learned trial court and, as such, the appeal filed by him in terms of Order 43 Rule 1(d) of the Code of Civil Procedure is maintainable. 7. I have heard learned counsel for the parties and perused the material on record. 8. It is not in dispute that the appellant herein was a party to the suit before the trial court, though he was impleaded as a proforma, defendant but, nonetheless, he was a party to the suit. It is also not in dispute that the appellant herein had approached the learned trial court with an application for setting aside the ex-parte judgment and decree but the same stands dismissed by the learned trial court. Once the application of the appellant under Order 9 Rule 13 of the Code of Civil Procedure was dismissed by the learned trial court, the remedy available to him was to file an appeal against the said order in terms of Order 43 Rule 1(d) of the CPC, the order rejecting an application for setting aside an exparte judgment and decree being an appealable order in terms of the aforesaid provision. 9. So far as the contention of the learned senior counsel appearing for the respondent No.1 that the exparte judgment and decree passed by learned trial court was passed only against the contesting defendant and not against the proforma defendant i.e. the appellant herein and, as such, he was not an aggrieved person and consequently he could not have maintained an application under Order 9 Rule 13 of the CPC before the learned trial court, is concerned, this Court is not concerned with the said question at this moment of time. So far as the merits of the order passed by the learned trial court while rejecting the application of the appellant for setting aside of exparte judgment and decree are concerned, the same will be considered at its appropriate time and it will be open to the respondent No.1 to urge all the grounds available to him at that time but at this moment of time, this Court is only concerned with the maintainability of the appeal, which, in my considered view, is definitely maintainable keeping in view the fact that the order of rejection of an application filed for setting aside exparte judgment and decree is appealable in terms of Order 43 Rule 1(d) of the CPC. 10. I am supported in my aforesaid view by the judgment of the Supreme Court in the case of Bhanu Kumar Jain v. Archana Kumar & anr. (2005) 1 SCC 787 . In the said case it has been clearly laid down that when an application under Order 9 Rule 13 of the CPC is dismissed, the defendant can only avail a remedy available there against, namely, to prefer an appeal in terms of Order 43 Rule 1 of the Code. 11. For the foregoing reasons, I do not find any merit in the preliminary objection raised by learned counsel for the respondent No.1 and, accordingly, the appeal is held to be maintainable. The same shall now come up for consideration on 22nd of March, 2021.