Gopala Krishnan @ G.K.Nair vs Sarath Lal

A. Badharudeen, J

Defendant in O.S.No.161 of 2011 on the files of the Sub Court, Nedumangad, has filed R.F.A.No.257/2015, challenging the decree and judgment in the above suit dated 03.12.2011, arraying plaintiff in the suit as the respondent.

Heard the learned counsel for the appellant/defendant and the learned counsel for the respondent/plaintiff.

Parties in this appeal will be referred to as to their status before the trial court as `plaintiff’ and `defendant’, hereafter.

In this case exparte decree dated 03.12.2011 is put under challenge. Exparte decree has been passed due to failure on the part of the defendant to appear before the trial court. Thus the legal question arise are:

i) Whether an exparte decree is appealable?

ii) Whether an appeal under Section 96(2) r/w Order 41 of the Code of Civil Procedure (`CPC’ for short) is maintainable even after dismissal of an application filed under Order 9 Rule 13 of CPC?

iii) What are the matters of consideration in a petition filed under Order 9 Rule 13 of CPC? Vis-a-vis in an appeal filed under Section 96(2) r/w Order 41 of CPC challenging an exparte decree?

Coming to the question as to whether a regular appeal under Section 96(2) r/w Order 41 of CPC is maintainable, if maintainable, even after dismissal of petition filed under Order 9 Rule 13 of CPC etc; in the decision reported in [AIR 2005 SC 626], Bhanu Kumar Jain v. Archana Kumar and another, a three Judge Bench of the Apex Court had occasion to consider the remedies available to a defendant when decree was passed exparte with reference to Order 9 Rule 13 of CPC as well as under Section 96(2) of CPC. Where in paragraph Nos.37 and 38 the Apex Court held as under:

“37. 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 a such an appeal. We, however, agree with Mr. Choudhari that the Explanation 39; 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 v. Pannalal Jaiswal and Others [2004 (9) SCALE 270].”

It is true that in a two Bench decision of the Apex Court reported in [2003(2) KLT 384(SC)], Janakiramaiah Chetty v. Parthasarathi, to consider the scope and object of Order 17 Rule 2 Explanantion and Rule 3 along with Order 9 Rule 13 of CPC and in paragraph 8 the Apex Court held that the Explanation permits the court in its discretion to proceed with a case where substantial portion of 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. As the provision itself shows, discretionary power given to the court to be exercised in a given circumstances. For application of the provision, the court has to satisfy itself that (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day and (c) the day is one to which the hearing of the suit is adjourned. R.2 permits the court to adopt any of the modes provided in O.IX or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the Rule.

Order 41 and Section 96 of CPC provide appeal from original decree and as per sub section 2 of Section 96, an appeal may lie from an original decree passed `exparte’. Going by the statutory wordings and the precedents, there is no iota of doubt that a regular appeal filed under Section 96(2) read with Order 41 of CPC is maintainable, challenging an exparte decree. That apart, the legal position is emphatically clear that merely because of dismissal of a petition filed under Order 9 Rule 13, the right of the defendant to file a regular first appeal under Section 96(2) and Order 41 of CPC is not barred. But the points of consideration in an application under Order 9 Rule 13 and an appeal thereof under Order 43 Rule 1(d) are totally different from a regular appeal filed under Section 96(2) r/w Order 41. When an appeal under Section 96(2) r/w Order 41 has been filed, the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for exparte 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 plaintiff 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 a such an appeal. At the same time, when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail the remedy by way of 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. That is to say, when an application under Order 9 Rule 13 the consideration of the court is as to whether the defendant satisfied the court that summons was not duly served, or that he has been prevented from any sufficient cause from appearing when the suit was called for hearing and no other considerations. But when regular first appeal is filed under Section 96(3) and Order 41, the court is only empowered to look into the finding entered into by the trial court while passing the exparte decree on its merits in accordance with law as in the case of a decree on contest so as to decide upon whether interference is called for inasmuch as the exparte decree is concerned.

Holding so, this appeal is maintainable, but since the application to condone the long delay has been dismissed, the appeal is barred by limitation and accordingly, the appeal also is liable to fail.

Accordingly, the appeal stands dismissed.