Birjiya Bai vs Kajlash Narayan and others

A.K. Shrivastava, J.

The impugned judgment dated 19-12-2008 passed by the learned First Additional District Judge, Mungawali, District Guna has been made pivot in this appeal by one of the defendant by filing this appeal u/s 100 of the Code of Civil Procedure, 1908.

The facts necessary for the disposal of this second appeal lies in a narrow compass. Suffice it to state that a suit for declaration of title and permanent injunction in respect of certain agriculture land has been filed by plaintiff/respondent against the defendant/appellant and another defendant/ respondent No. 2. In the suit, State of Madhya Pradesh has been arrayed'' as formal defendant in terms of Order 1, Rule 3-B, CPC (M.P, State Amendment).

The defendants including the appellant filed joint written statement and denied the averments made in the plaint.

On the basis of the averments made in the plaint and the denial in the written statement, necessary issues were framed by the learned trial Court. Thereafter the plaintiff Kailash Narayan appeared in the witness box and he was cross-examined by defendant''s counsel. However, thereafter counsel for the defendants did not appear and the learned trial Court proceeded ex parte against them. The learned trial Court however did not find the suit of the plaintiff to be proved, as a result of which dismissed the same.

4A. The plaintiff against the judgment of learned trial Court dismissing his suit, preferred first appeal before the learned First Appellate Court. In the appeal, it was prayed by plaintiff that since defendants were ex parte in the trial Court, therefore, sending of notice to the defendants is not necessary in view of the provisions under Order XLI, Rule 14 (3) of CPC (M. P. State Amendment). The learned First Appellate Court accepted the said prayer and without sending notice of appeal to the defendants decreed the suit of the plaintiff by allowing his appeal.

In this manner, this second appeal has been filed by one of the defendant before this Court.

This Court today while admitting the appeal framed the following substantial question of law ;

Whether the discretion has been rightly exercised by the learned First Appellate Court by not sending notice of appeal to defendant on the ground that they were ex parte in the trial Court as envisaged under Order 41, Rule 14 (M. P. State Amendment) of CPC when the defendants filed written statement and also cross-examine the plaintiff?

The contention of Shri K. B. Chaturvedi, learned senior counsel for appellant is that in the present case the discretion has been wrongly exercised by the learned First Appellate Court by not sending the notice of appeal to the defendants because they were contesting the suit before the trial Court and they not only filed the written statement, but also cross-examined the plaintiff, hence, it has been prayed by setting aside the impugned judgment and decree passed by the learned First Appellate Court, the matter be remanded back to that Court to decide the appeal after hearing the defendants.

On the other hand, Shri Ajeet Sudele, learned counsel for plaintiff/ respondent No.1 by taking the aid of Order XLI, Rule 14 (3) of Civil Procedure Code, as amended by the State of Madhya Pradesh submitted that because the defendants were ex parte in the trial Court, therefore, there was no need to serve notice on them, and therefore, the learned First Appellate Court did not commit any error in not sending the notice to the defendants and has rightly allowed the appeal of the plaintiff by decreeing his suit. According to the learned counsel this appeal has no merit and the same be dismissed.

Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

Regarding substantial question of law:-

Indeed, the learned First Appellate Court did not send the notice of the appeal to the respondents by taking into consideration that they were ex parte in the trial Court, and hence, by taking aid of said State amendment in Order XLI, Rule 14 of CPC notices were not sent to them. For better understanding, it would be condign to quote Order XLI, Rule 14 (3) of CPC as amended by the State of Madhya Pradesh. The said amendment reads as follows :-

Add the following sub-rule (3),

(3) The Appellate Court may in its discretion dispense with notice to any respondent against whom the suit was heard ex parte.

The unamended sub-rule (3) of Rule 14 of Order XLI of CPC reads as under :

(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.

After the State amendment sub-rule (3) of Rule 14 of Order XLI of CPC reads as under :-

(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal. The Appellate Court may in its discretion dispense with notice to any respondent against whom the suit was heard ex parte. " (Emphasis supplied)

On going through the aforesaid provision, this Court finds that it is always not necessary to dispense with the service of the defendants who remained ex parte in the trial Court, but the discretion has been given to the learned First Appellate Court not to send the notice of appeal to any of the respondents against whom the suit was heard in ex parte. According to me, the discretion has not been properly exercised by the learned First Appellate Court. The position would have been different if the defendants would have remained ex parte right from the very beginning and would not have filed the written statement and further would not have cross examined the plaintiff. However, in the present case when the defendants have filed written statement refuting the averments made in the plaint by denying his right, title and interest in the suit property and not only this after the issues were framed also cross-examined the plaintiff, according to me, the notice of the appeal should have been sent to the defendants who were respondents before that Court. Hence, the discretion has not been properly exercised by the learned First Appellate Court.

Indeed, the discretion has been exercised arbitrarily and capriciously by learned First Appellate Court in the facts and circumstances of the case and as a matter of fact the learned First Appellate Court should have sent the notice to the defendants, who were respondents before that Court because they filed written statement and also cross-examined the plaintiff. If a Judge proceeds on a wrong principle in a matter within his discretion, his order may be set aside by an Appellate Court. In this context, I may profitably place reliance on Watson vs. Rodwell, (1876) 3 Ch. D. 388 , in which Mellish L.J. has observed that where the Judge has adopted a wrong principle, the Appellate Court would interfere with that discretion. The Division Bench of this Court in Laxmi Chand Gangaram Vs. Brijbhushandas and Others, reiterated the same principle by placing reliance on the Chancery Division Watson (supra). The substantial question of law is thus answered in favour of appellant by holding that the discretion has not been rightly exercised by the learned First Appellate Court by not sending the notice to the defendants who were respondents before that Court.

Ex consequenti this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by the learned First Appellate Court is hereby set aside and learned First Appellate Court is hereby directed to decide the appeal afresh after hearing the defendants/respondents before that Court. The appellant who is arrayed as respondent No. 1 before that Court as well as plaintiff who is respondent No. 1 in this appeal and the State of M P. through the concerning Collector shall remain present before the learned First Appellate Court on 3rd May, 2010. However, the learned First Appellate Court shall issue notice to Diman Singh, who has been arrayed as respondent No. 2 in that Court. Looking to the facts and circumstances of the case, the parties are directed to bear their own costs.