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IN SUPREME COURT OF INDIA Page 1 of 9
CASE NO.:
Appeal (civil) 8246 of 2004
PETITIONER:
Bhanu Kumar Jain
RESPONDENT:
Archana Kumar & Anr.
DATE OF JUDGMENT: 17/12/2004
BENCH:
N. Santosh Hegde, B.P. Singh & S.B. Sinha
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (C) No. 6392 of 2003)
S.B. SINHA, J.
Leave granted.
The remedies available to a defendant in the event of an ex-parte
decree being passed against him in terms of Order 9 Rule 13 of the Code of
Civil Procedure (Code) and the extent and limitation thereof is in question
before us in this appeal which arises out of a judgment and order dated
19.12.2002 passed by the High Court of Madhya Pradesh at Jabalpur in First
Appeal No. 109 of 1986.
The fact of the matter relevant for the purpose of this appeal is as
under:
One Shri N.N. Mukherjee was the owner of the premises in suit. He
died leaving behind his wife Smt. Suchorita Mukherjee, (original defendant
No. 1), son Shri P.P. Mukherjee, (original plaintiff) and daughter Smt.
Archana Kumar, (original defendant No. 2). The family is said to be
governed by Dayabhag School of Hindu Law. The original plaintiff filed a
suit for partition in the year 1976. The original defendants filed their written
statements. Respondent No. 2 herein, Surender Nath Kumar who is husband
of Smt. Archana Kumar, Respondent No. 1 herein also filed a written
statement and counterclaim by setting up a plea of mortgage by deposit of
title deeds in respect of property in suit said to have been created by his
mother in law (original defendant No. 1).
Smt. Suchorita Mukherjee died on 15.9.1984 whereupon Respondent
No. 1 herein was transposed as defendant No. 1; whereas Respondent No. 2
was transposed as defendant No. 2 therein. In the suit, the defendant No. 1
did not file any document. Respondent No. 2 also did not file any document
in support of his purported counter claim.
Having regard to the rival contentions raised in the pleadings of the
parties, the following issues were framed:
"1(a) Whether partition of property owned by late
Shri NN Mukherjee had taken place during his life
time?
(b) If so, what property was available for partition?
(c) What were the shares allotted to the Plaintiff
and the defendant No. 1 in the said partition?
(d) Whether the Plaintiff had separated from his
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father during his life time and was in separate
possession of his share in the property?
2. Whether the Plaintiff is entitled to = share and
separate possession of his share in the property
described in para 3 of the plaint?
3. Whether the plaintiff is entitled to claim mesne
profits for the income derived by the defendant
No. 1 from the share in the property? If so, at what
rate and to what sum?
4. Whether the claim in suit is barred by
limitation?
5. Whether the decision in Civil Suit No. 63-A of
1972 decided on 22.11.75 by IInd Civil Judge,
Class II, Jabalpur will operate as res-judicata in the
present case?
(a) Whether the suit is not maintainable as no relief
has been sought against defendant No. 2?
(b) Whether at the request of Defendant No. 1,
Defendant No. 3 spent Rs. 21000/- till 31.10.74 on
construction and alteration of the suit property and
the interest as on 31.10.74 came to Rs. 10,000.00?
(c) Whether in order to secure the above amount
defendant No. 1 deposited the title deeds of the suit
property with defendant No. 2 and created a
mortgage by deposit of title deeds in favour of
defendant No. 3 and the suit property stands
mortgaged with the defendant No. 3?
(d) Whether defendant No. 3 further spent Rs.
9500/- in the year 1976, 1977 and 1980 and
defendant No. 2 spent Rs. 10500.00?
(e) Whether defendant No. 3 is entitled to get
declaration shown as in para 6(A)(B)(C) of the
written statement of defendant No. 3?
(f) Whether the mother of defendant No. 2 had
made will in favour of defendant No. 2 and thus,
after the death of mother defendant No. 2 became
absolute owner and plaintiff has no right?
(g) Whether the plaintiff had already separated in
the year 1951 and thus he has no right over the suit
property?
6. Relief & Costs?"
An additional issue was framed on 13.6.1985 and the case was fixed
for evidence on 3.8.1985. On 3.8.1985 nobody was present on behalf of the
defendant but the plaintiff’s advocate was present whereupon, the case was
directed to be placed after some time. At 2.35 p.m. a request was made for
adjournment on the ground that the defendant could not come from Delhi
whereafter an application was filed by the plaintiff that he had closed his
evidence. It was further contended that the burden to prove the additional
issue rested on the defendant and if any evidence is to be adduced, he should
adduce evidence first. It appears that the plaintiff was also not cross-
examined by Respondent No. 1 herein. As the plaintiff was attending to the
court proceedings from Calcutta, a cost of Rs. 200/- was imposed on the
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defendants. It was further directed that if the costs were not paid, the right
of cross-examination will be closed. The matter was again posted on
7.10.1985 on which day again the counsel for the defendant was not present.
Even the costs awarded against them was not paid. Having regard to the fact
that the Respondent No. 1 herein was absent and did not cross-examine the
plaintiff; the case was directed to be posted ex-parte against her and the right
of cross-examination was forfeited. The case was fixed for final argument
on 11.10.1985. Yet again on 11.10.1985 the plaintiff was present but the
defendants were not. Allegedly, owing to strike of the advocates the case
was adjourned for 14.10.1985. On 14.10.1985 the learned Judge fixed the
case for 25.10.1985 for delivery of judgment. The judgment, however, was
not pronounced on 25.10.1985. However, on the next date, viz., 30.10.1985,
an application was filed by the Respondents herein purported to be in terms
of Order 9, Rule 7 of Code for setting aside the order dated 7.10.1985
whereby the suit was posted for ex-parte hearing. The said application was
rejected by an order dated 31.10.1985. A preliminary decree for partition,
thereafter was passed on 1.11.1985 in favour of the plaintiff.
An application under Order 9, Rule 13 of Code was filed by the
Respondents herein on 5.11.1985 which was marked as Misc. Judicial Case
No. 30/1985. The said application was dismissed by an order dated
15.1.1986 by the 6th Additional District Judge, Jabalpur holding that the
defendants failed to prove good and sufficient cause for their absence on
7.10.1985. An appeal marked as Misc. Appeal No. 19/86 thereagainst in
terms of Order 43, Rule 1(d) of the Code was filed on 30.1.1986 which was
also dismissed.
A Civil Revision Application was also filed challenging the order
dated 31.10.1985 whereby and whereunder the Respondents’ application
under Order 9, Rule 7 of Code was dismissed. The said petition was also
dismissed. Yet again a regular First Appeal being No. 109/86 was filed in
the High Court. It is contended that the Respondent No. 2 did not file any
appeal against the rejection of his counter claim. The said Misc. Appeal No.
19/86 was dismissed by an order dated 5.4.1994 whereagainst a Special
Leave Petition was filed which also came to be dismissed as withdrawn by
an order dated 16.12.1994. In the meanwhile, it appears that the original
plaintiff transferred his right title and interest in favour of the present
Appellant. The plaintiff died on 1.5.2001. By reason of the impugned
judgment, the High Court allowed the First Appeal No. 109/86 holding:
"i. That the Trial Judge has grossly erred in law
by proceeding ex-parte against the defendants.
ii. The learned counsel further canvassed that
the appellant No. 2, Surendra Kumar, filed the
counter claim and therefore it was incumbent upon
the learned trial judge to decide the counter claim
filed by the defendant in view of the mandate
contained in Order 8 Rule 6(D) of the Code."
Mr. Anup G. Choudhary, learned senior counsel appearing on behalf
the Appellant would submit that as the counter claim filed by the defendants
under Order 8 Rule 6(D) of the Code was dismissed by the learned Trial
Judge, the First Appeal should not have been entertained by the High Court
at the instance of the Respondent No. 2 and, thus, the impugned judgment
must be set aside.
The learned counsel would urge that the subject matter of an
application under Order 9, Rule 13 of the Code and the subject matter of the
appeal being same, it is against public policy to allow two parallel
proceedings to continue simultaneously. Reliance in this behalf has been
placed on Badvel Chinna Asethu and another Vs. Vettipalli Kesavayya and
another [AIR 1920 Madras 962], Munassar Bin Jan Nisar Yarjung (died) his
L.Rs Marian Begum and others Vs. Fatima Begum and others [AIR 1975 AP
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366], M/s. Mangilal Rungta, Calcutta Vs. Manganese Ore (India) Ltd.,
Nagpur [AIR 1987 Bombay 87], Dr. M.K. Gourikutty and etc. Vs. M.K.
Raghavan and Others [AIR 2001 Kerala 398], Rani Choudhury Vs. Lt.-Col.
Suraj Jit Choudhury [(1982) 2 SCC 596] and P.Kiran Kumar Vs. A.S.
Khadar and Others [(2002) 5 SCC 161].
In any event, Mr. Choudhari would contend that the Respondents’
claim would be hit by the doctrine of Issue Estoppel. Reliance in this behalf
has been placed on Y.B. Patil and Others Vs. Y.L. Patil [(1976) 4 SCC 66],
Vijayabai and Others Vs. Shriram Tukaram and Others [(1999) 1 SCC 693]
and Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another
[(1999) 5 SCC 590].
As regard the counter claim of Respondent No. 2 herein, Mr.
Choudhari would contend that the same was directed only against his mother
in law being the original defendant No. 1, and, thus, it could not have been
enforced against the plaintiff. The learned counsel in this connection has
drawn our attention to Issue No. 5 framed by the learned Trial Judge.
Drawing our attention to the judgment of the learned Trial Judge, it was
argued that the High Court committed a manifest error in coming to the
conclusion that the learned Trial Judge did not determine the counter claim
which in fact was done.
Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the
Respondents, on the other hand, would contend that the Respondents were
entitled to maintain an appeal against the ex-parte decree in terms of Section
96(2) of the Code. The learned counsel would argue that the High Court in
its impugned judgment having arrived at a conclusion that the suit was
directed to be proceeded ex-parte only against Respondent No. 1 and not
against the Respondent No. 2; he was entitled to raise a contention as
regards the legality or validity of the order dated 31.10.1985. It was further
submitted that in any event, Respondents herein were entitled to assail the
judgment on merit of the matter. Drawing our attention to the provisions of
Order 8, Rule 10 of the Code, the learned counsel would contend that even
in a case where no written statement is filed, the Court may direct the parties
to adduce evidence in which event the Court must pass a decree only upon
recording a satisfaction that the plaintiff has been able to prove his case. If
on the basis of the materials on record, Mr. Ranjit Kumar would urge, the
plaintiff fails to prove his case, the judgment would be subject to an appeal
in terms of Section 96(2) of the Code which confers an unrestricted statutory
right upon a party to a suit.
The learned counsel would further contend that the Appellant herein
has no locus standi to maintain this appeal as upon the death of the original
plaintiff he was not substituted in his place. Mr. Ranjit Kumar would submit
that, in the event if it be held that the Respondents are not entitled to
question the order of the learned Trial Judge to pass an ex-parte decree
against both the Respondents, the matter may be remitted to the High Court
for a decision on merit of the matter.
In reply, Mr. Choudhari would point out that only two contentions
were raised before the High Court and its findings thereupon being ex facie
erroneous, no purpose would be served by remitting the matter back to the
High Court for determination of the merit of the matter. It was argued that
the Respondents have not raised any contention on merit of the matter and in
any event, they having not adduced any evidence, there is no material on the
record of the appeal enabling the court to determine the same on merit. It
was further contended that even the deed in terms whereof the purported
mortgage was created was not annexed with the written statement of the
Respondent No. 2 as it was mandatorily required under Order 8, Rule 1 of
the Code, he cannot raise any contention on merit of the counter claim and
furthermore even no evidence was produced in support thereof.
Order 9, Rule 7 of the Code postulates an application for allowing a
defendant to be heard in answer to the suit when an order posting a suit for
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ex-parte hearing was passed only in the event, the suit had not been heard as
in a case where hearing of the suit was complete and the court had adjourned
a suit for pronouncing the judgment, an application under Order 9, Rule 7
would not be maintainable. (See Arjun Singh Vs. Mohindra Kumar and
others, AIR 1964 SC 993) The purpose and object of Order 9, Rule 7 of the
Code has been explained by this Court in Vijay Kumar Madan and Others
Vs. R.N. Gupta Technical Education Society and Others [(2002) 5 SCC 30]
and Ramesh Chand Ardawatiya Vs. Anil Panjwani [(2003) 7 SCC 350]
It is true that the suit was not directed to be heard ex-parte against
Respondent No. 2 herein but it remains undisputed that both the
Respondents filed application for setting aside the ex-parte decree before the
learned Trial Judge, preferred appeal against the judgment dismissing the
same as also filled a revision application against the order dated 31.10.1985
setting the suit for ex-parte hearing. The said applications and appeal had
been dismissed. Even a Special Leave Petition filed was dismissed as
withdrawn. In that view of the matter it is not permissible for the
Respondents now to contend that it was open to the Respondent No. 2 to
reagitate the matter before the High Court. The contention which has been
raised by the Respondent No. 2 before the High Court in the first Appeal,
furthermore, was not raised in the said application under Order 9, Rule 13 of
the Code and even in the Misc. Petition and the Revision Application filed in
the High Court. Such a question having not been raised, in our opinion, the
Respondents disentitled themselves from raising the said contention yet
again before the High Court in the First Appeal.
It is now well-settled that principles of res judicata applies in different
stages of the same proceedings. [See Satyadhyan Ghosal and others Vs.
Smt. Deorajin Debi and another, AIR 1960 SC 941) and Prahlad Singh Vs.
Col. Sukhdev Singh [(1987) 1 SCC 727].
In Y.B. Patil (supra) it was held:
"4\005 It is well settled that principles of res judicata
can be invoked not only in separate subsequent
proceedings, they also get attracted in subsequent
stage of the same proceedings. Once an order
made in the course of a proceeding becomes final,
it would be binding at the subsequent state of that
proceeding..."
In Vijayabai (supra), it was held:
"13. We find in the present case the Tahsildar
reopened the very question which finally stood
concluded, viz., whether Respondent 1 was or was
not the tenant of the suit land. He further
erroneously entered into a new premise of
reopening the question of validity of the
compromise which could have been in issue if at
all in appeal or revision by holding that
compromise was arrived at under pressure and
allurement. How can this question be up for
determination when this became final under this
very same statute ?..."
Yet again in Hope Plantations Ltd. (supra), this Court laid down the
law in the following terms:
"17\005One important consideration of public policy
is that the decisions pronounced by courts of
competent jurisdiction should be final, unless they
are modified or reversed by appellate authorities;
and the other principle is that no one should be
made to face the same kind of litigation twice over,
because such a process would be contrary to
considerations of fair play and justice."
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It was further held:
"31. Law on res judicata and estoppel is well
understood in India and there are ample
authoritative pronouncements by various courts on
these subjects. As noted above, the plea of res
judicata, though technical, is based on public
policy in order to put an end to litigation. It is,
however, different if an issue which had been
decided in an earlier litigation again arises for
determination between the same parties in a suit
based on a fresh cause of action or where there is
continuous cause of action. The parties then may
not be bound by the determination made earlier if
in the meanwhile, law has changed or has been
interpreted differently by a higher forum. But that
situation does not exist here. Principles of
constructive res judicata apply with full force. It is
the subsequent stage of the same proceedings. If
we refer to Order XLVII of the Code (Explanation
to Rule. 1) review is not permissible on the ground
"that the decision on a question of law on
which the judgment of the Court is based
has been reversed or modified by the
subsequent decision of a superior court in
any other case, shall not be a ground for the
review of such judgment"."
The question which now arises for consideration is as to whether the
First Appeal was maintainable despite the fact that an application under
Order 9, Rule 13 of the Code was dismissed.
An appeal against an ex-parte decree in terms of Section 96(2) of the
Code could be filed on the following grounds:
(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.
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.
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, the Explanation I appended to said provision does not suggest that
the converse is also true.
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.
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
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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.
There is a distinction between ’issue estoppel’ and ’res judicata’ [See
Thoday vs. Thoday \026 1964 (1) All. ER 341]
Res judicata debars a court from exercising its jurisdiction to
determine the lis if it has attained finality between the parties whereas the
doctrine issue estoppel is invoked against the party. If such an issue is
decided against him, he would be estopped from raising the same in the
latter proceeding. The doctrine of res-judicata creates a different kind of
estoppel viz Estopper By Accord.
In a case of this nature, however, the doctrine of ’issue estoppel’ as
also ’cause of action estoppel’ may arise. In Thoday (supra) Lord Diplock
held :
"\005"cause of action estoppel" is that which prevents a
party to an action from asserting or denying, as against
the other party, the existence of a particular cause of
action, the non-existence or existence of which has been
determined by a court of competent jurisdiction in
previous litigation between the same parties. If the cause
of action was determined to exist, i.e., judgment was
given on it, it is said to be merged in the judgment\005.If it
was determined not to exist, the unsuccessful plaintiff
can no longer assert that it does; he is estopped per rem
judicatam."
The said dicta was followed in Barber vs. Staffordshire Country
Council, (1996) 2 All ER 748. A cause of action estoppel arises where in
two different proceedings identical issues are raised, in which event, the
latter proceedings between the same parties shall be dealt with similarly as
was done in the previous proceedings. In such an event the bar is absolute in
relation to all points decided save and except allegation of fraud and
collusion. [See C. (a minor) Vs. Hackney London Borough Council,
(1996) 1 All ER 973].
It is true that the Madras High Court in Badvel Chinna Asethu (supra)
held that two alternative remedies in succession are not permissible stating:
"Assuming that it is open to a defendant in the
appeal against the exparte decree to object to the
decree on the ground that he had not sufficient
opportunity to adduce evidence in a case where he
did not choose to avail himself of the special
procedure, it does not by any means follow that,
where he did actually avail himself of the special
procedure and failed, still it would be open to him
to have the same question reagitated by appealing
against the decree."
Oldfield, J. in his concurring judgment stated:
"\005No case has been cited before us in which the
question now under consideration, whether a party
against whom a decree has been passed ex parte
can proceed in succession under O.9, R.13, as well
as by taking objection to the order placing him ex
parte in his appeal against the substantive decree
has been dealt with. On principle it would appear
that he could only do so at the expense of the rules
as to res judicata; and there can be no reason why
the adjudication on his application under O.9,
R.13, if there were one should not be conclusive
against him for the purpose of any subsequent
appeal. In the present case it is suggested that the
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facts that his application under O.9, R.13, was not
carried further than the District Munsif’s Court and
that he acquiesced in the District Munsif’s
unfavourable order, would make a difference to his
right to appeal against the decree on this ground.
The answer to this is that the District Munsif’s
order not having been appealed against, has
become final. It seems to me that it would be a
matter for great regret if a party could pursue both
of two alternative remedies in succession and that
the recognition of a right to do so would be a
unique incident in our procedure. I am
accordingly relieved to find that such a right has
not been recognized by authority\005"
The aforementioned view was reiterated in the subsequent decisions
of different High Courts in Marian Begum (supra) M/s. Mangilal Rungta,
Calcutta (supra) and Dr. M.K. Gourikutty (supra).
However, it appears that in none of the aforementioned cases, the
question as regard the right of the defendant to assail the judgment and
decree on merit of the suit did not fall for consideration. 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 any embargo thereupon shall be fixed unless
the statute expressly or by necessary implication say so. [See Deepal
Girishbhai Soni Vs. United India Insurance Co. Ltd. (2004) 5 SCC 385 and
Chandravathi P.K. and Others Vs. C.K. Saji and Others, (2004) 3 SCC 734]
We have, however, no doubt in our mind that when an application
under Order 9, Rule 13 of the Code is dismissed, the defendant can only
avail a remedy available thereagainst, 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, in our opinion, 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 against 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. We, however, agree with Mr.
Choudhari that the ’Explanation’ appended to Order 9 Rule 13 of the Code
shall receive a strict construction as was held by this court in Rani
Choudhury (supra), P. Kiran Kumar (supra) and Shyam Sundar Sarma Vs.
Pannalal Jaiswal and Others [2004 (9) SCALE 270].
We, therefore, are of the opinion that although the judgment of the
High Court cannot be sustained on the premise on which the same is based,
the Respondents herein are entitled to raise their contentions as regards merit
of the plaintiff’s case in the said appeal confining their contentions to the
materials which are on records of the case.
We, however, do not agree with Mr. Ranjit Kumar that the Appellant
herein has no locus standi to maintain this appeal. In terms of Order 22,
Rule 10 of the Code he could have been substituted in place of the plaintiff.
Even if he was not substituted in terms of the aforementioned provision, an
application under Order 1, Rule 10 of the Code on his behalf was
maintainable as he became the legal representative of the original plaintiff.
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For the view we have taken, it is not necessary for us to examine the
claim of the original plaintiff for partition of suit properties or claim of the
Respondent No. 2 herein as regard creation of a mortgage in relation thereto
by the original defendant No. 1 and/ or efficacy thereof. We refrain
ourselves from even considering the submission of Mr. Choudhari to the
effect that even otherwise the Respondent No. 2 herein could not have raised
a counter claim in the partition suit vis-‘-vis the plaintiff and the effect, if
any, as regards his non-filing of an appeal relating to his counter claim. We
may notice that Mr. Choudhari has further contended that in terms of Order
17, Rule 2 of the Code in the event, in the suit which was adjourned and if
on the date of adjourned date the defendant did not appear, the court has no
other option but to proceed ex-parte. The High Court, in our opinion, should
be allowed to examine all aspects of the matter.
For the reasons aforementioned, we are of the opinion that although
the judgment of the High Court is not sustainable as the reasons in support
thereof cannot be accepted, the High Court for the reasons assigned
hereinbefore must examine the Respondents’ claim on merit of the matter.
The Appeal is, therefore, allowed, the impugned judgment is set aside
and the case remitted to the High Court for consideration of the case of the
parties on merit of the matter. As the suit is pending since 1976, we would
request the High Court to dispose of the appeal at an early date and
preferably within a period of three months from the date of communication
of this order. No costs.
