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2025 DIGILAW 243 (KER)

S. CHITRA W/O DILEEP v. JOSE ANTONY S/O BAPPU

2025-02-12

M.A.ABDUL HAKHIM

body2025
JUDGMENT : M.A. ABDUL HAKHIM, J. 1. These two Regular Second Appeals arise from two suits - O.S. No. 63/2007 and O.S. No. 69/2007 in which the subject matter is one and the same. The plaintiff in O.S. No. 63/2007 and the defendants in O.S. No. 69/2007 are the appellants. 2. O.S. No. 63/2007 was filed by the plaintiff for permanent prohibitory injunction against the defendant therein from causing any obstruction in the user of Plaint B Schedule property as way. The defendant in O.S. No. 63/2007 filed O.S. No. 69/2007 against the plaintiff in O.S. No. 63/2007 and four others for permanent prohibitory injunction, mandatory injunction, and damages on the allegations that the defendants widened the 4 feet gap to the Plaint D schedule property for passing through B and C schedules to the tarred road and they are liable to restore the gap to a width of 4 feet, not to trespass into Plaint A schedule property, not to commit waste or damage in the plaint schedule properties and to pay damages of Rs.5,000/-. The issue in both suits is regarding the width of the gap and pathway. According to the plaintiff in O.S. No. 63/2007, the gap is 4 feet, and according to the plaintiff in O.S. No. 69/2007, the gap is 2.25 meters. Plaint B schedule in O.S. No. 63/2007 is the Plaint D schedule in O.S. No. 69/2007. The defendants appeared in the respective suits and filed Written Statements. 3. Both the suits were ordered to be jointly tried, treating O.S. No. 63/2007 as the leading case. Both the suits were listed for trial on 01.02.2008. On that day, the plaintiff in O.S. No. 63/2007 and the defendants in O.S. No. 69/2007 were absent. The Trial Court appointed an Advocate Commissioner to record evidence of both sides with direction to complete the same on or before 08.02.2008. The plaintiff in O.S. No. 63/2007 and the defendants in O.S. No. 69/2007 did not cooperate to take evidence, and when the suits were taken on 08.02.2008, they were absent. Consequently, O.S. No. 63/2007 was dismissed for default and O.S. No. 69/2007 was decreed as prayed for, without setting the defendants ex-parte, but without adjudicating the matter on merits. 4. The plaintiff in O.S. No. 63/2007 and the defendants in O.S. No. 69/2007 did not cooperate to take evidence, and when the suits were taken on 08.02.2008, they were absent. Consequently, O.S. No. 63/2007 was dismissed for default and O.S. No. 69/2007 was decreed as prayed for, without setting the defendants ex-parte, but without adjudicating the matter on merits. 4. The plaintiff in O.S. No. 63/2007 filed A.S. No. 97/2008, and the defendants in O.S. No. 69/2007 filed A.S. No. 93/2008 before the First Appellate Court challenging the judgment and decree in the respective suits with Application to condone delay in filing the appeals. The First Appellate Court dismissed both Applications to condone delay, but the consequential judgments dismissing the appeals were not passed by the First Appellate Court. The appellants in both the appeals filed Writ Petitions in this Court challenging the Orders in the Applications to condone delay, and the Writ petitions were allowed condoning the delay on cost and on payments of cost, the First Appellate Court was directed to consider the appeals. 5. After payment of the costs, the First Appellate Court considered the appeals and dismissed both appeals, holding that the appeals were not maintainable. R.S.A No. 983/2011 is filed challenging the judgment in A.S. No. 93/2008 arising from O.S. No. 69/2007. R.S.A No. 1100/2011 is filed challenging the judgment in A.S. No. 97/2008 arising from O.S. No. 63/2007. Both the Appeals were admitted on the Substantial Questions of Law formulated in the Appeal Memorandum. 6. I heard the learned counsel for the appellants and the learned counsel for the respondent. 7. O.S. No. 63/2007 is dismissed for default consequent to the non-appearance of the appellant/plaintiff. In such a case, the remedy of the plaintiff is to seek restoration of O.S. No. 63/2007, invoking Order 9 Rule 9 of the Code of Civil Procedure. The judgment dismissing O.S. No. 63/2007 for default does not contain any adjudication of the matter. In such a case, there could not be any ground on merits against the said judgment, and the First Appellate Court will not be able to consider the merits of the case and the legality of the findings of the Trial Court in the Appeal. Though an appeal is provided under Section 96 CPC against the ex-parte decree, no appeal is provided under Section 96 CPC against the decree in a suit dismissed for default. Though an appeal is provided under Section 96 CPC against the ex-parte decree, no appeal is provided under Section 96 CPC against the decree in a suit dismissed for default. The reason behind it is that in case of dismissal of the suit there will not be any adjudication or decision or merits which could be corrected in appeal. Hence, the First Appellate Court rightly found that the appeal was not maintainable. 8. O.S. No. 69/2007 was decreed recording the evidence of the plaintiff and marking the documents on the part of the plaintiff. It is seen from the judgment that, though the defendants were not made ex-parte in the suit, the Trial Court decreed O.S. No. 69/2007 without any adjudication of the matter on merits. 9. The First Appellate Court relied on the judgment of the Hon’ble Supreme Court in Janakiramaiah Chetty v. Parthasarathi, 2003 (2) KLT 384 (SC) to dismiss both the appeals. In the said decision, the Hon’ble Supreme Court held that in the absence of any indication as to what evidence was evaluated and/or whether merits were tested, the decree passed by the court is in the nature of an ex-parte decree and is liable to be set aside under O.9 R.13 CPC. It is further held that in such case, it has clear imprints of an ex-parte adjudication and not of a decision on merits. The said decision is squarely applicable to the present case. The judgment in O.S. No. 69/2007 is in the nature of an ex-parte decree. 10. In cases on hand, there could not be any ground on merits against the judgments and the First Appellate Court will not be able to consider the merits of the case and the legality of the findings of the Trial Court in the Appeal. The First Appellate Court rightly dismissed both the appeals relying on the decision in Janakiramaiah Chetty (supra). 11. Appeals from original decree is provided under Section 96 CPC. Section 96(2) provides appeal from original decree passed ex-parte. This Court in Kunjayyan & Ors. v. Kerala State & Anr. 2012 (1) KHC 827 held that the remedy provided under Order 9 Rule13 CPC and the remedy by way of appeal are not mutually exclusive. 11. Appeals from original decree is provided under Section 96 CPC. Section 96(2) provides appeal from original decree passed ex-parte. This Court in Kunjayyan & Ors. v. Kerala State & Anr. 2012 (1) KHC 827 held that the remedy provided under Order 9 Rule13 CPC and the remedy by way of appeal are not mutually exclusive. The Hon'ble Supreme Court in Bhanu Kumar v. Archana Kumar, AIR 2005 SC 626 held that if an application under Order 9 Rule 13 CPC is dismissed, the defendant can file an appeal under S.96(2) CPC on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiff were not sufficient to pass a decree in his favour or that the suit is not otherwise maintainable. 12. If an ex-parte decree is passed, the defendant has got two remedies. Either to file an application under Order 9 Rule 13 CPC to set aside the ex-parte decree or to file an appeal before the First Appellate Court challenging the matter on merits. If there is no adjudication or decision on merits in the ex-parte judgment passed by the Trial Court, the First Appellate Court will not be in a position to consider the matter on merits. The Hon’ble Supreme Court in Janakiramaiah Chetty (supra) has specifically held that in the absence of any indication as regards the merits of the case, preferring an appeal is really inconsequential. Thus, even if the appeal is provided against the ex-parte decree under Section 96 CPC, in case there is no adjudication or decision on merits in the ex-parte judgment passed by the Trial Court, no useful purpose would be served by filing an appeal. If there is no adjudication or decision on merits, an appeal under Section 96(2) CPC is not maintainable against the ex-parte decree. 13. Explanation to Order 9 Rule 13 CPC provides that, after the disposal of an appeal against an ex-parte decree, no application for setting aside the ex-parte decree is maintainable. But such a bar will not be available when an appeal against the ex-parte decree is dismissed, holding that the appeal is not maintainable. Otherwise, in such a case, the defendant will be left without any remedy against the ex-parte decree. 14. There is nothing to interfere with the impugned judgments and decrees. But such a bar will not be available when an appeal against the ex-parte decree is dismissed, holding that the appeal is not maintainable. Otherwise, in such a case, the defendant will be left without any remedy against the ex-parte decree. 14. There is nothing to interfere with the impugned judgments and decrees. In view of the aforesaid discussion, all the Substantial Questions of law are found against the appellants. Both the Regular Second Appeals fail and the same are accordingly dismissed. But this will be without prejudice to the rights of the appellants under the provisions of Order 9 CPC.