Gulam Mohmad Nurminya Kazi vs Prakash Devendra Shantilal

J.N. Bhatt, J.—A short but interesting question which has come up for adjudication in this revision u/s 115 of the Code of Civil Procedure, 1908 (''Code'' for short) is "Whether an appeal is competent from an order granting an application for an order to set aside the decree passed ''ex parte'' under Order 9, Rule 13 of the Code undrer Order 43, Rule 1 of the Code?"

The petitioner is the original defendant against whom the respondent-original plaintiff filed Regular Civil Suit No. 90 of 1983 in the Court of Civil Judge (J.D.) at Valsad, for possession of the rented room. The parties are, hereinafter, referred to, as arraigned in the plaint, for the sake of convenience and brevity.

In the suit, summons could not be served by the plaintiff on the defendant despite several attempts. Therefore, the plaintiff had requested the court to serve the defendant with summons by substituted service. The trial court had granted such request of the plaintiff and the defendant was served by substituted service. Therefore, the case proceeded and the suit was decreed ''ex parte''.

The original defendant came to know about passing of the ''ex parte'' decree. Therefore, he filed an application for setting aside the ''ex parte'' decree under Order 9, Rule 13 of the Code on the ground that there was no service of summons as required by law and, therefore, the ''ex parte'' decree is illegal. He also inter alia contended that the suit filed by the plaintiff for possession of the demised premises is also false, frivolos, illegal and taking advantage of the absence of the defendant from Valsad for religious purpose as he being a priest, he had to go out, the summons was falsely said to have been served by substituted service.

After hearing the learned advocates for the parties and considering the facts and circumstances and the application for restoration for setting aside ''ex parte'' decree, being Misc. Civil Application No. 37 of 1983, under Order 9, Rule 13 of the Code, the trial Court quashed the ''ex parte'' decree passed in Regular Civil Suit No. 90 of 1983. Thus, Misc. Civil Application No. 37 of 1983 to set aside the ''ex parte'' decree came to be granted by the trial court on 5-3-1987 by allowing the said application. Being aggrieved by the said order granting application for setting aside the decree passed ex parte, the original plaintiff preferred Misc. Civil Appeal No. 7 of 1987 in the District Court of Valsad at Navsari.

Upon hearing the parties and considering the facts and circumstances, the learned Extra Assistant Judge allowed the appeal and the order passed by the learned Civil Judge (J.D.). Valsad below restoration application No. 37 of 1983 by which he had set aside the ''ex parte'' decree passed in Regular Civil Suit No. 90 of 1983 was quashed and set aside. In short, the application for restoration and for setting aside the ex parte decree made by the original defendant under Order 9, Rule 13 of the Code came to be rejected in an appeal.

Being aggrieved by the said judgment and decree passed in Misc. Civil Appeal No. 7 of 1987 by the learned Extra Assistant Judge, Valsad at Navsari, the original defendant has preferred this revision u/s 115 of the Code.

After having examined the facts and the circumstances and the relevant provisions, this Court has no hesitation in finding that the appeal was not competent before the District Court. It is very clear from Order 43, Rule l(d) of the Code that against an order under Order9, Rule 13 rejecting an application for an order to set aside a decree passed ''ex parte'', an appeal is provided. It means that if such an application for setting aside ex parte decree under Order 9, Rule 13 is allowed, as it was done by the trial Court, by allowing Restoration i Application No. 37 of 1983, filed by the defendant, appeal does not lie. A specific statutory remedy is provided by the Code for setting aside an ex parte decree. It is not without significance that under Order 43, Rule 1 (d), an appeal lies not against orders setting aside a decree passed ex parte but against orders rejecting such an application unmistakably pointing to the policy of the Code being that subject to securing due diligence on the part of the parties to the suit, the Code as far as possible; makes provision for decisions in suits on merits after a hearing afforded to the parties. It becomes explicit from the aforesaid provisions of Order 43, Rule 1(d) that in case the court grants an application for an order to set aside a decree passed ex parte under Order 9, Rule 13 of the Code, an appeal is not provided for against such an order. However, Misc. Civil Appeal No. 7 of 1987 was filed against an order under Order 9, Rule 13 granting an application and allowing Misc. Application No. 37 of 1983 for setting aside the ex parte decree preferred by the original defendant by the trial court, on 5-3-1987. The appeal was not competent against such an order of the trial Court. Therefore, the impugned order passed by the appellate court on 7-7-1989 in Misc. Civil Appeal No. 7 of 1987, is without jurisdiction and, therefore, illegal. With the result, this revision u/s 115 of the Code is required to be allowed as it falls within the ambit of Section 115 of the Code, though wherein, the jurisdictional sweep is very much circumscribed. It is, however, clarified that it will be open for the parties to raise any and all legal ground or grounds before the trial Court during the course of the further proceedings of the suit for trial on merits. In the circumstances, the trial court is also directed to expedite the proceedings and to dispose of the suit on merits in accordance with law early preferably within three months from the date of the receipt of the writ from this Court.

In the result, this revision is allowed and the impugned order passed by the learned Extra Assistant Judge, Valsad at Navsari, in Misc. Civil Appeal No. 7 of 1987, is quashed and set aside, restoring the order of the trial court passed in restoration application being Misc. Application No. 37 of 1987, under Order 9, Rule 13 of the Code, on 5-3-1987. Rule is made absolute, with no order as to costs.