Sankaranarayanan vs Ponnusamy

K.K. Sasidharan, J—The respondent filed a suit for partition against the petitioner and others. The suit was decreed ex-parte. Thereafter, the respondent filed a final decree application. The petitioner, on receipt of notice in the final decree application, filed an application in I.A. No. 1056 of 2006 to set aside the ex-parte final decree. Thereafter, the petitioner filed I.A. No. 778 of 2010 to set aside the ex-parte preliminary decree. The application was filed with a delay of 1811 days. The application was dismissed by the Trial Court. The petitioner is, therefore, before this Court.

Heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the respondent.

The petitioner has taken up a specific contention that he engaged a counsel to defend him in the civil suit. Because of the negligence on the part of the counsel, the Trial Court passed an ex-parte preliminary decree on 24 October, 2005. Subsequently, final decree was also passed on 11 July, 2006. The petitioner engaged another counsel. The counsel engaged subsequently filed application to set aside the ex-parte final decree instead of filing application to set aside the ex-parte preliminary decree.

The learned Trial Judge considered the reasons given for the delay and opined that the petitioner has not made out a case for condoning the delay.

The preliminary decree in the subject case was passed ex-parte. The learned Trial Judge failed to consider the merits of the matter, in view of the fact that there was no written statement filed on behalf of the defendants. It is true that the suit is one for partition. Even then, the Court has to see as to whether the suit property is liable for partition and the plaintiff is entitled to a share.

The ex-parte judgment and decree does not contain any indication that the learned Trial Judge has considered the merits of the matter.

In Meenakshisundaram Textiles Vs. Valliammal Textiles Ltd., (2011) 3 CTC 168 : (2011) 3 LW 80 : (2011) 7 MLJ 652 , a Division Bench of this Court held that even an ex-parte judgment should contain reasons. The relevant portion of the judgment 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."

While considering the application filed by the petitioner, the learned Trial Judge should have considered the fact that the ex-parte judgment was not on merits. The judgment passed by the learned Trial Judge would not come within the meaning of Section 2(9) of the Code of Civil Procedure, 1908. I am, therefore, of the view that the matter requires fresh consideration by the learned Trial Judge.

In the result, the order dated 16 March, 2012 is set aside. The learned Trial Judge is directed to consider the application filed by the petitioner in I.A. No. 778 of 2010, on merits and as per law and in the light of the judgment in Meenakshisundaram Textiles''s case cited supra.

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