Ramakrishnan and Others vs Senthilkumar and Others

K.K. Sasidharan, J—Defendants 1 and 3 to 7 in O.S. No. 61 of 2009 are the petitioners herein.

The first respondent filed a suit against the petitioners and second respondent before the Court below praying for a decree of specific performance. The petitioners received the summons and appeared through counsel. However, they have not filed written statement. The petitioners, thereafter, remained ex-parte. The learned Trial Judge was pleased to pass an ex-parte judgment and decree on 28 April, 2010.

The first respondent filed an Execution Petition before the Executing Court. The petitioners entered appearance in the execution proceedings and thereafter, filed an application in I.A. No. 372 of 2013 to set aside the ex-parte decree after condoning the delay of 1165 days.

The application was opposed by the first respondent.

The learned Trial Judge opined that the petitioners were watching the proceedings and filed the application with a false affidavit. The application was, ultimately, dismissed. The said order is under challenge in this Civil Revision Petition.

Heard the learned counsel for the respective parties.

The first respondent filed a suit for specific performance. The Trial Court, consequent to the non-appearance of the petitioners herein, passed an ex-parte judgment and decree. The judgment does not contain any indication that the learned Trial Judge discussed the nature of the relief claimed by the first respondent and thereafter, granted the decree. The decree was passed solely on account of the non-appearance of the petitioners herein. The decree would not satisfy Section 2(9) of the Code of Civil Procedure, 1908.

The petitioners filed an application to condone the delay of 1165 days in filing the application to set aside the ex-parte decree. It is true that proper reasons were not given by the petitioners to condone the delay. However, I am of the view that reasons should be taken, in the light of the ex-parte judgment and decree in O.S. No. 61 of 2009.

The fact that the defendants were set ex-parte, would not give power to the Court to pass a decree as prayed for. The Court should consider the plaint and evidence as a whole even in the absence of defendants. The Superior Courts have, time and again, deprecated the practice of passing ex-parte judgment and decree solely on account of the non-appearance of defendants.

Section 2(9) of Code of Civil Procedure, 1908 defines "judgment" as the statement given by the Judge of the grounds of a decree or order. The judgment in O.S. No. 61 of 2009 would not qualify to be a judgment in terms of Section 2(9) of the Code of Civil Procedure, 1908, as it does not contain any reason much less justifiable reasons.

The legal position regarding basic ingredients of a judgment:--

A Division Bench of this Court in Meenakshisundaram Textiles Vs. Valliammal Textiles Ltd., (2011) 3 CTC 168 : (2011) 3 LW 80 : (2011) 7 MLJ 652 , considered the salient features of a judgment and observed that judgment which does not contain the details like points for determination, decision thereon and reasons for such decision would not qualify to be called as a judgment. The relevant observation reads thus:--

"6. In terms of the above provisions, every judgment should contain a concise statement of the case, the points for determination, decision thereon and the reasons for such decision. A judgment which does not contain the bare minimum facts, the point for determination, the evidence adduced and the application of those facts and evidence for deciding the issue would not qualify it to be called as "judgment". The judgment should contain the brief summary of the facts, the evidence produced by the plaintiff in support of his claim and the reasoning of the learned Judge either for decreeing the suit or its dismissal. The Civil Procedure Code does not say that the Court is bound to grant a decree in case the defendant is absent. Judgment means cognitive process of reading a decision or drawing conclusion. Judgment is the basic requirement for a court and it means a decision or conclusion reached after consideration and deliberation. To put it differently, the basics of a judgment are to support by most cogent reasons that suggest themselves the final conclusion at which the Judge has conscientiously arrived.

Code of Civil Procedure does not define either an ex-parte judgment or an ex-parte decree. It refers only to a judgment and a decree. In the event a judgment is rendered when the defendant fails to defend the suit by his absence, that judgment is known to be an ex-parte judgment and the decree drawn on the basis of that judgment is known as an ex-parte decree. Hence, even for an ex-parte judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the Court has applied its mind to the pleading, relief claimed thereunder, the evidence and the conclusion arrived at by the Court on the above.

It is also relevant to point out that under Section 96(2) of the Code of Civil Procedure, an appeal may lie from an original decree passed ex-parte. Two remedies are available to an aggrieved person to question the ex-parte decree. One is that he may file an application to set aside the ex-parte decree as provided under Order IX Rule 13 of Code of Civil Procedure. In such event, the Court which passed the judgment and decree will have to consider the reasons for setting aside such judgment and decree, which may be more or less the explanation as to the failure of non-appearance. The other remedy is that he may prefer an appeal under Section 96(2) and in such event, the appellate Court should necessarily go into the merits and find out whether the decree could be set aside or not. In case an appeal is laid, in the absence of reasons in the judgment, the appellate Court has to necessarily remand the case to the trial Court for fresh consideration. For that reason, the judgment should contain the reasons and should be in conformity with the provisions of Section 2(9) read with Order XX Rule 4 of the Code of Civil Procedure.

From the above discussions, it is manifestly clear that even a judgment rendered ex-parte and a decree is drawn on the basis of that judgment, it is appealable. In case that judgment and decree become final without there being any appeal, the decree is executable. In that sense, there is no difference between a judgment and decree and an ex-parte judgment and decree. In view of the above, in the event the defendant is set ex-parte, the Court should be extra careful in such case and it should consider the pleadings and evidence and arrive at a finding as to whether the plaintiff has made out a case for a decree. In this context, it may also be mentioned that though a detailed judgment is required in a contested matter, an ex-parte judgment should show the application of the minimum requirement of consideration of the pleadings, issues, evidence and the relief sought for rendering such judgment."

Most recently, in Shantilal Gulabchand Mutha Vs. Tata Engineering and Locomotive Company Ltd. and Another, (2013) 9 AD 284 : (2013) 116 CLT 568 : (2013) 171 PLR 706 : (2013) 3 RCR(Civil) 320 : (2013) 4 SCALE 565 : (2013) 4 SCC 396 , the Supreme Court considered the legality of ex-parte Judgment and Decree passed by the Trial Courts without indicating the points for determination and considering the matter on merits.

"5. This Court in Balraj Taneja and Another Vs. Sunil Madan and Another, AIR 1999 SC 3381 : (1999) 6 JT 473 : (1999) 5 SCALE 400 : (1999) 8 SCC 396 : (1999) 2 SCR 258 Supp : (1999) AIRSCW 3345 : (1999) 8 Supreme 27 dealt with the issue and held that even in such fact- situation, the court should not act blindly on the averments made in the plaint merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein. Where a written statement has not been filed by the defendant, the court should be little cautious in proceeding under Order VIII, Rule 10, CPC. Before passing the judgment against the defendant it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly by passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court''s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who failed to file the written statement. However, if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. The power of the court to proceed under Order VIII, Rule 10 CPC is discretionary.

The court in Balraj Taneja case, further held that "judgment" as defined in Section 2(9) CPC means the statement given by the Judge of the grounds for a decree or order. Therefore, the judgment should be self- contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.

In view of the above, it appears to be a settled legal proposition that the relief under Order VIII Rule 10 CPC is discretionary, and court has to be more cautious while exercising such power where defendant fails to file the written statement. Even in such circumstances, the court must be satisfied that there is no fact which need to be proved in spite of deemed admission by the defendant, and the court must give reasons for passing such judgment, however, short it be, but by reading the judgment, a party must understood what were the facts and circumstances on the basis of which the court must proceed, and under what reasoning the suit has been decreed."

In view of the background facts and taking into account the fact that the learned Trial Judge has not given any reason on merits before granting a discretionary relief in favour of the first respondent, I am of the view that the petitioners must succeed.

In the result, the order dated 07 July, 2014 is set aside. The application in I.A. No. 372 of 2013 is allowed, subject to payment of a sum of Rs. 1,000/- (Rupees One Thousand only) as cost payable to the first respondent. The cost amount shall be paid, on or before 08 June, 2015.

The petitioners are directed to file written statement on or before 08 June, 2015 with an advance copy to the first respondent. The learned Trial Judge is directed to dispose of the suit in O.S. No. 61 of 2009, on merits and as per law, as expeditiously as possible.

The Civil Revision Petition is allowed as indicated above. No costs. Consequently, the connected miscellaneous petition is closed.