Bava alias Asees vs Madhavan and others

K.P. Balanarayana Marar, J.—The questions of law which arise in this second appeal are: 1. In an appeal from an ex parte decree can the appellate court consider the reason for the defendant''s non appearance at the hearing and determine whether the court below was right in proceeding ex parte?

Whether the only question which can be considered in appeal is whether the decree can be sustained on the merits or in other words, whether the evidence on record is sufficient to support the ex parte decree?

If the appellate court comes to the conclusion that the suit ought not to have been heard ex parte has it the power to remand the case for re-hearing to the lower court?

Defendant in a suit for injunction is the appellant herein. After completion of the evidence on the side of the plaintiff the suit was adjourned for adducing the evidence on the side of the defendant. On the adjourned date counsel for defendant reported no instructions. Defendant also remained absent. The trial court proceeded ex parte and decided the suit or merits. A decree for injunction was granted in favour of the plaintiff. On appeal, the Subordinate Judge, Kozhikode concurred with the decision of the trial court and dismissed the appeal. Hence this second appeal which was admitted on the following substantial questions of law formulated in the appeal memorandum. 1. Was the trial court justified in disposing of the case on merits after declaring the defendant ex parte since the circumstances of this case doesn''t fall under the explanation to Rule 2 of Order XVII of the CPC inserted by C.P.C. Amendment Act of 1976?

Is the trial court justified in granting injunction without declaration of title?

Was the Court justified in granting injunction without identifying the property?

Heard counsel on both sides.

Three remedies are open to a person to question an ex parte decree, viz. (1) an application under Rule 13 of Order IX C.P.C. (ii) an appeal u/s 96 (2) of the Code, and (iii) an application for review under Order 47.

Both the remedies No. 1 and No. 2 can be prosecuted concurrently so long as a decision is not rendered in either of them. A defendant against whom an ex parte decree is passed is at liberty to apply to set aside the ex parte decree under Rule 13 of Order IX or appeal from the decree. He is also entitled to apply for a review of the judgment. In case the application under Order IX Rule 13 is rejected a remedy by way of appeal is available under Order 43 Rule (1)(d). A party need not resort to the remedy under Rule 13 of Order IX and may instead file an appeal under Sec. 96 from the ex parte decree itself.

When the two remedies are concurrent it is open to the party to resort to either of the remedies or both. The explanation to Rule 13 of Order IX introduced by the 1976 Amendment suggests that the remedies are concurrent. The explanation is to the effect that 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 that ex parte decree. When the decree is confirmed in appeal or the appeal is otherwise disposed of the court which passed the decree has no power to entertain an application to set aside the ex parte decree, the reason being that the decree of the trial court has merged in the decree of the appellate court. In such a case the question of filing an application under Order IX Rule 13 does not arise. In case such an application had been filed the petition has only to be rejected. Similarly if the petition to set aside ex parte order had been allowed the appeal becomes infructuous and the question of hearing the appeal does not arise. There is consensus of judicial opinion that neither the rejection of the application under Order IX Rule 13 nor the omission to file an appeal against that order is a bar to an appeal from the decree itself. But if the application is refused on merits the court while considering the appeal against the decree is precluded from discussing the propriety of the ex parte order itself. The appellate court can consider the appeal only on the merits of the case.

The question then arises whether the appellate court has got power to question the propriety of the ex parte order itself and remand the case for re-trial on that point. This question may arise in appeals preferred against decrees where no application was filed under Order IX Rule 13 as well as in cases where the application has been dismissed for default of the parties and there is no finding on the merits. There is conflict of opinion on this aspect. Some of the High Courts are of the view that the appellate court has power to go into the question of the propriety of the ex parte order whereas according to some other High Courts the power of the appellate court is restricted to a consideration of the merits of the case only on the question of law and the evidence let in and cannot enter into the question of the sufficiency of the cause for the non-appearance of the defendant at the time of hearing. In order to understand the correct legal position it is only appropriate to refer to those decisions.

As early as 1906 a Full Bench of the Madras High Court in Sadhu Krishna Ayyar v. Kuppan Ayyangar and others - ILR 30 Madras 54 held that when a suit is decided ex parte an appellate court to which an appeal from the decree is preferred u/s 540 of the CPC of 1882 has jurisdiction to reverse the decree of the lower court on the ground that such court was wrong in proceeding to decide the suit ex parte and remand the suit for re-hearing.

The same view was expressed by a Division Bench of the Bombay High Court in Jethalal Girdhar v. Varajlal Bhaishankar - AIR 1922 Bom. 267. It was held that the lower appellate court has the power to consider the question whether the suit was heard ex parte against the appellant on sufficient grounds. It was also held that if the appellate court is minded under the circumstances of a particular case to reverse the decree of the trial court and to remand the suit to that court for a retrial, it has power to do so. The Division Bench further held that even if the case does not fall within the scope of Rule 23 of Order XLI of the Code the words of Rule 33, Order XLI and the provisions contained in section 151 are wide enough to save the power of the appellate court to make an order suited to the circumstances of the case or in the interests of justice and if necessary, to remand the suit for a re-trial.

A Division Bench of the Calcutta High Court in Jnanendra v. Profullananda - AIR 1928 Calcutta 812 held that in a case in which an ex parte decree has been passed and the aggrieved party has not availed of the remedy by way of an application under Order IX Rule 13 he is not precluded from raising the question of propriety of the refusal to adjourn his case, in the appeal which he prefers from the ex parte decree itself. On the power of remand it was held that the court is entitled to make an order of remand under the provisions of Section 151 CPC.

In an appeal from an ex parte decree the Nagpur High Court in Ramballabh Jasraj Marwadi v. Dharamsi Jetha & Co. and others - AIR 1937 Nagpur 268 held that the lower appellate court can set aside the decree and remand the case under S. 151 CPC holding that the trial court was wrong in passing the ex parte decree.

The Karnataka High Court in the decision in Gangadhar Bhat v. Srikant - AIR 1981 Karnataka 35 held that the appellate court has power to examine the question as to whether the trial court was not right in proceeding to decide the case ex parte. It is observed that when the material on record pertaining to the ex parte decree appealed against is sufficient for the appellate court to find whether the trial court was not justified in refusing an adjournment and proceeding ex parte, there would be no justifiable ground to prevent the appellate court from holding that the non-grant of an adjournment has affected the decision and on that basis setting aside the ex parte decree

A contrary view is expressed by other High Courts. In AIR 1925 645 (Oudh) it was held that if a party failed to take advantage of Rules 7 and 13 of Order IX rule 7 he cannot raise the same point of the injustice of the ex parte order in an appeal under S. 96 of the Code. It is observed that when a specific remedy with a particular period of limitation is granted, a party must avail himself of it and cannot make it a ground of appeal under the general provision granting him a right of appeal from an ex parte decree.

The same view was expressed by the same High Court in Ganesh Das Varma v. Hari Chand and others - AIR 1934 Oudh 131 (1). There also it was held that the contentions in the appeal must be limited either to questions of law or to such arguments as arise upon the record as it stood when the ex parte decree was passed. It is also observed that the party is not entitled to ask the appellate court to accept the appeal on ground which could be urged in an application under Order IX rule 13 and to remand the suit for re-hearing.

The Rajasthan High Court in Berisal Singh and others v. Pemchand and others - ILR 1953 (3) Rajasthan 179 observed that if the defendant does not apply for setting aside the ex parte decree and merely files an appeal against the decision given against him, he cannot ask for a remand on the ground that the summons was not duly served on him, and his grounds of appeal would be limited to the questions of law and fact which are already on record.

A Division Bench of the Madhya Pradesh High Court in Nagar Palika Nigam, Gwalior Vs. Motilal Munnalal, held:

An error, defect or irregularity which has affected the decision of the case may be challenged in an appeal against the decree whether ex parte or otherwise. But an appeal against the ex parte decree under S.96(2) CPC cannot be converted into proceedings for setting aside the decree with the concomitant duty of affording to the parties an opportunity of adducing evidence for and against any ground that may be raised in support thereof under O.9, R. 13, CPC. Nor can such an appeal be converted into an appeal under O.43 R. 1(d), CPC. The reason is that when a particular remedy is provided for setting aside an ex parte decree and there is, by way of appeal, another special remedy against an order refusing to set aside, these remedies and none other must be followed.

The Allahabad High Court in Rajjan Lal v. Rukmani Devi and others - 1979 All L.J. 1237 held that the appellate court cannot go into the question as to why the appellant had not appeared on the date of final hearing before the trial court, since this is the scope of an application under Order IX rule 13.

A different note is struck by the same High Court in the decision in Smt. Kalindri Devi Vs. Balloo and Others, where it was held that in an appeal, sufficient cause for non-appearance can be shown. But the decision in Rajjan Lal''s case (supra) is not seen to have been referred to.

The latter view appeals to me as the correct exposition of law on the aspect. The remedy by way of a petition under Rule 13 of Order IX and appeal under S. 96 of the Code are no doubt concurrent. But a petition to set aside the ex parte decree is a less expensive remedy than an appeal for which court fee on the subject matter of the appeal has to be paid. In order to get an ex parte decree set aside the defendant has to satisfy the court that summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. An enquiry under rule 13 of Order IX necessarily involves adducing of evidence either to show that the summons was not duly served or that he was prevented from appearing by any sufficient cause. The correctness of an order under that provision can be considered by an appellate court in an appeal under Order 43 Rule 1(d) of the Code.

An appeal is provided from an ex parte decree under sub-section (2) of section 96 of the Code. But the enquiry in an appeal can only relate to an error, defector irregularity which has affected the decision of the case. The party having chosen to resort to that remedy the appellate court can consider it only as an appeal on the merits of the case or any question of Law arising therefrom. In other words, the enquiry has to be limited to the question whether the decree can be sustained on the materials on record. Permitting the appellant to raise points of injustice of the ex parte order in an appeal u/s 96 of the Code would be virtually converting the appeal into a petition for setting aside the ex parte decree. Without any evidence it will not be possible for the appellate court to decide whether the summons was duly served or not or whether defendant was prevented by sufficient cause from appearing when the suit was called on for hearing. As observed by the Madhya Pradesh High Court in Motilal''s case (supra) the reason that when a particular remedy is provided for setting aside an ex parte decree and there is by way of appeal another special remedy against an order refusing to set aside, these remedies and none other must be followed. A party is therefore not entitled to ask the appellate court to accept the appeal on a ground which he could urge in an application under Rule 13 of order IX and request for remand of the suit for re-hearing.

The above view is in accordance with the intention of the framers of the Code. The question to be considered in a petition under Rule 13 of Order IX is different from the matter to be considered in an appeal u/s 96 of the Code. That is why judicial opinion is uniform regarding the sustainability of an appeal even in case of rejection of an application under Rule 13 of Order IX CPC. It cannot be disputed that the appellate court can still consider the appeal on merits even if defendant has failed to get the ex parte decree set aside. There cannot be a different standard in the case of an appeal against an ex parte decree presented by a defendant who had not chosen to file a petition for getting the ex parte decree set aside.

Appellant has raised a contention that the trial court was not justified in disposing of the case on merits after declaring the defendant ex parte. Rules 2 and 3 of Order XVII CPC provide for distinct and different sets of circumstances. Rule 2 applies where an adjournment has been generally granted and not for any special purpose. On the other hand, rule 3 applies where a party to a suit to whom time has been granted fails to produce evidence or to cause the attendance of his witness or to perform any other act necessary to the further progress of the suit for which time has been allowed. Rule 2 applies only when the parties or any of them failed to appear. But the explanation to that rule is to the effect that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned the court may in his discretion proceed with the case as if such party were present. Rule 3 states that the court may proceed to decide the suit forthwith if the parties are present. But if the parties are or any of them is absent the court has to proceed under rule 2. There cannot thus be any dispute regarding the position that the court has to proceed under rule 2 of Order XVII in case the parties are or any of them is absent unless explanation to rule 2 comes into operation. The Supreme Court in Prakash Chander Manchanda and Another Vs. Janki Manchanda, held that in a case where defendant fails to appear before court and consequently no evidence could be recorded on behalf of the defendant the court must proceed under Rule 2 and not under Rule 3 of Order XVII. The court must proceed to dispose of the matter in any of the modes provided under Order IX and therefore an application by the defendant under Rule 13 of Order IX to get the ex parte decree set aside is maintainable. If the present case counsel for the defendant reported no instructions. By that time no evidence had been recorded on his side. Explanation to rule 2 of Order XVII is therefore not applicable. The disposal of the case can only be the one under Rule 2 of Order XVII which enables the defendant to get the ex parte decree set aside by filing an application under Rule 13 of Order IX. Learned counsel for respondent would point out that the defendant was represented by a counsel and the presence of the counsel amounts to presence of the party. Mere physical presence of the counsel by itself will not be sufficient in the present case when he had reported no instructions and had thus ceased to represent the defendant. But the question whether defendant could have resorted to the remedy under Rule 13 of Order IX CPC does not arise in this case since he has not chosen to move the court under that provision. The only aspect that survives for consideration is whether the decree can be sustained on the materials available on record. Plaintiff has produced documents to prove title and possession over the property in respect of which injunction was claimed. He also got himself examined to prove possession. The commissioner appointed by the court had submitted a plan and report. No serious objection was raised by either of the parties about the correctness of the demarcation done by the commissioner. As against the evidence on the side of the plaintiff there is no evidence on the side of the defendant either oral or documentary. Even if defendant did not get an opportunity to examine himself as a witness he could have produced documentary evidence if he had any. That should have been produced much earlier since the evidence on the side of the plaintiff has been completed and the suit posted for defendant''s evidence. The property has been properly identified by the commissioner and the fact of possession proved by documents and the oral testimony of PW-1. The grant of injunction by the trial court is proper. The decision was rightly concurred by the lower appellate court. Though a question of law is raised in the appeal memorandum that the trial court is not justified in granting injunction without declaration of title learned counsel for the appellant was not able to substantiate this plea. The suit being for an injunction on the basis of plaintiff''s possession the question of declaration of title does not arise. None of the questions formulated in the appeal memorandum therefore arises for consideration.

For the aforesaid reasons the second appeal is dismissed but in the circumstances of the case without costs.