The proviso appended to Order IX Rule 13 of the Code of Civil Procedure postulates that when an ex parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the Court is not powerless to do so.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 7316 of 2008
Decided
On: 16.12.2008
Mahesh
Yadav and Ors.Vs.Rajeshwar Singh and Ors.
Hon'ble Judges/Coram:
S.B. Sinha and Cyriac Joseph, JJ.
Author: S.B. Sinha, J.
Citation:
MANU/SC/8463/2008,AIR
2009 SC 1064
1.
Leave granted.
2.
Plaintiff in a suit for declaration of title and possession is before
us aggrieved by and dissatisfied with the judgment and order dated
4.3.2004 passed the High Court of Judicature at Patna in Civil
Revision No. 497 of 2003 whereby and whereunder an order dated
20.2.2003 passed by Munsif Biharshrif, Nalanda in Miscellaneous Case
No. 19 of 1998 setting aside an ex parte decree, was reversed.
3.
Plaintiff filed the aforementioned suit as Secretary of Magadh Raj
Jarsandh Akhara, Rajgir. In the said suit six defendants were
impleaded as parties. It was, inter alia, contended that although the
plaintiff had been in uninterrupted possession of Plot No. 5180, the
defendants attempted to take forcible possession of land measuring 9
decimals.
In
the said suit, the defendants filed a joint written statement. During
the pendency of the said suit, however, the defendants No. 2 and 5
entered into compromise with the plaintiff. A compromise petition
filed by the parties thereto was accepted. Indisputably, talks for
compromise were going on by and between the plaintiff and defendant
Nos. 1 and 6; however, no compromise petition was filed in that
behalf. Although witnesses examined on behalf of the plaintiff were
cross-examined on behalf of defendant Nos. 1 and 6, they did not
adduce any evidence.
The
learned Munsif, Biharsharif decreed the suit, stating:
After contest this suit is decreed in favour of the plaintiff partly on the basis of the compromise petition and partly after contest. If the defendants have effected any possession over the disputed land during pendency of the present suit, the plaintiff will have full right to effect eviction of the defendants with the assistance of the court on payment of proper cost. No order regarding any cost is being given in the suit.
4.
Appellants herein, having come to know of the said ex parte decree
passed against them, filed an application in terms of Order IX Rule
13 of the Code of Civil Procedure. They examined a large number of
witnesses in support of their case.
5.
We may notice that plaintiff s evidence was closed on 18.5.1995. The
learned Judge thereafter was transferred. The learned District Judge
transferred the said case by an administrative order dated 20.2.1997.
There is nothing on record to show that the counsel appearing on
behalf of the other defendants were the advocate of the appellants
herein also. By reason of an order dated 20.2.2003, the learned Judge
while considering the case of the appellants that they were kept in
dark about the development of the case due to connivance of the
respondents herein as they had been informed that the compromise had
been entered into by some of the parties and the Presiding Officer
has been transferred, noticed:
Four witnesses have been examined on behalf of the applicant and all of them supported the facts mentioned in the miscellaneous application. Witness No. 2 Chinta Devi is herself opposite party No. 2 and has clearly stated in examination in chief that she is prepared to contest the suit and therefore, the suit should be revived, on behalf of the opposite party one witness was examined in support of the rejoinder. Witness No. 1 is himself opposite party No. 1. In the examination in chief he has stated that the applicant has filed the miscellaneous application with the intention of causing harassment to him because the applicant had information about the suit. Therefore, the application should be dismissed.
It
was directed:
After
hearing both parties and after perusal of records, I find that the
applicant has furnished satisfactory reasons to show that he had no
information about developments in Suit No. 67/90 and his application
for revival is fit to be accepted but will cost.
Therefore
the miscellaneous application is accepted subject to cost of Rs.
200/- under Order 9 Rule 13. And the ex parte decree in original suit
No. 67/90 is rescinded.
6.
A revision application was filed there against.
The
High Court passed the impugned judgment only on the premise that as
all the defendants had filed a joint written statement, there was no
occasion for the court to set aside the ex parte decree stating that
if a fraud had been practised upon the court, an appropriate
proceeding should have been initiated therefor. It was held:
If
the contention of the defendants 1 and 6 is to the effect that the
decree was obtained by fraud and collusion, then this matter need be
pleaded by facts and circumstances so as to take a declaration under
Section 44 of the Evidence Act, 1872. This step was not taken.
Suffice it to say that if there be a fraud it is a criminal act and
there is no limitation if such action is to be taken by a party to
the suit.
Thus,
at present the order dated 20 February, 2003 in Miscellaneous Case
No. 19 of 1998: Mahesh Yadav and Ors. v. Rajeshwar Singh and Ors.
MANU/SC/8463/2008 : AIR2009SC1064 Permitting setting aside an ex
parte decree under Order 9 Rule 13 of the Code of Civil Procedure is
set aside.
7.
Mr. Goutam Prasad, learned Counsel appearing on behalf of the
appellant, would submit that the High Court failed to take into
consideration that only because a joint written statement was filed,
the same was binding upon the appellants although some of them had
been won over by the plaintiff.
8.
Mr. H.L. Agrawal, learned senior counsel appearing on behalf of the
respondents, however, supported the judgment.
9.
Order IX Rule 13 of the Code of Civil Procedure reads as under:
13.
Setting aside decree ex parte against defendants.--In any case in
which a decree is passed ex parte against a defendant, he may apply
to the Court by which the decree was passed for an order to set it
aside; and if he satisfies the Court that the summons was not duly
served, or that he was prevented by any sufficient cause from
appearing when the suit was called on for hearing, the Court, shall
make an order setting aside the decree as against him upon such terms
as to costs, payment into Court or otherwise as it thinks fit, and
shall appoint a day for proceeding with the suit:
Provided
that where the decree is of such a nature that it cannot be set aside
as against such defendant only it may be set aside as against all or
any of the other defendants also:
Provided
further that no Court shall set aside a decree passed ex parte merely
on the ground that there has been an irregularity in the service of
summons, if it is satisfied that the defendant had notice of the date
of hearing and had sufficient time to appear and answer the
plaintiffs claim.
Explanation.-Where
there has been an appeal against a decree passed ex parte under this
rule, and the appeal has been disposed of on any ground other than
the ground that the appellant has withdrawn the appeal, no
application shall lie under this rule for setting aside the ex parte
decree.
10.
Indisputably, two of the defendants had entered into compromise with
the plaintiff. They have accepted the title of the plaintiff.
The
contents of the written statement filed by the appellants had not
been noticed by the High Court. The High Court furthermore failed to
consider that according to the appellants herein, talks of compromise
started by and between the defendant Nos. 1 and 6 and the plaintiff.
They cross-examined the witnesses of the plaintiff but did not adduce
any evidence. It was on the aforementioned premise alone, the
plaintiff was found to be in possession of the suit land and a decree
was passed.
11.
There is nothing on record to show that the appellants herein were
being represented by the same learned advocate. If they were
represented by different advocates, it is not known as to whether the
order of transfer of the case was brought to the notice of the
learned advocate for the appellants. The High Court, in our opinion,
therefore may not be correct in holding that only because a joint
written statement was filed, an application for ex parte decree was
not maintainable. In fact, the same was held to be maintainable by
the learned Civil Judge by an order dated 26.7.2000.
12.
The proviso appended to Order IX Rule 13 of
the Code of Civil Procedure postulates that when an ex parte decree
has been passed against some of the defendants and it is necessary to
set aside the entire decree, the Court is not powerless to do so. If
an application for setting aside the ex parte decree was maintainable
at the instance of the appellants, we fail to understand as to why a
separate suit was required to be filed. When an ex parte decree is
passed, the defendant may have more than one remedies. He may file a
suit contending that the decree was obtained fraudulently. He may
file an application under Order IX Rule 13 of the Code of Civil
Procedure for setting aside the ex parte decree. He may prefer an
appeal from the ex parte judgment and decree. In a given case, he may
also file a review application.
13.
In Bhanu Kumar Jain v. Arcbana Kumar and Anr. MANU/SC/1079/2004 :
AIR2005SC626 , this Court held:
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.
It
was, however, observed:
28. It is true that 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.
14.
The judgment of the High Court, therefore, in our opinion is not
sustainable.
While,
however, saying so, we must express our dissatisfaction in the manner
in which the learned Civil Judge has passed the order impugned before
the High Court. The said order is an unreasoned one. The evidence
adduced on behalf of the appellants were not analysed for arriving at
a finding as to whether a case for setting aside an ex parte decree
has been made out by the appellants or not. The matter had not been
considered as is required in terms of Order IX Rule 13 of the Code of
Civil Procedure. An order setting aside the ex parte decree being a
judicial order should have been supported by reasons. The learned
Judge could not have allowed the said application without following
the legal principles on the basis whereof such an order could be
passed.
We,
therefore, in exercise of our jurisdiction under Article 142 of the
Constitution of India, while setting aside the order passed by the
High Court also set aside the order passed by the learned Civil
Judge. The Civil Judge should consider the matter afresh on merit and
pass a reasoned order.
15.
Appeal is allowed with the aforementioned directions. However, in the
facts of and circumstances of this case, parties shall bear their own
costs.
