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Bhanu Kumar Jain v. Archana Kumar, 2005
« »08-Feb-2024
Introduction
- This is an important case on the concept of setting aside of ex-parte decree.
Facts
- A person named Shri N N Mukherjee was the owner of the premises in the suit.
- He died leaving behind his wife Smt. Suchorita Mukherjee, (original defendant No. 1), son Shri P P Mukherjee, (original plaintiff) and daughter Smt. Archana Kumar, (original defendant No. 2).
- The family was said to be governed by Dayabhag School of Hindu Law.
- The original plaintiff filed a suit for partition in the year 1976.
- As a result, to which the original defendants filed their written statements.
- Respondent No. 2, Surender Nath Kumar who is husband of Smt. Archana Kumar, Respondent No. 1 herein also filed a written statement and counterclaim by setting up a plea of mortgage by deposit of title deeds in respect of property in suit said to have been created by his mother-in-law (original defendant No. 1).
- The defendants failed to appear in the trial court on the date whenever the case was fixed for hearing.
- On 30th October 1985, an application was filed by the Respondents herein purported to be in terms of Order XI, Rule 7 of Code of Civil Procedure, 1908 (CPC) for setting aside the order dated 7th October 1985 whereby the suit was posted for ex-parte hearing.
- The said application was rejected by an order dated 31st November 1985. A preliminary decree for partition, thereafter, was passed on 1st November 1985 in favour of the plaintiff.
- An appeal filed to the HC was also dismissed.
- In the meantime, the plaintiff transferred his rights, title and interest of his share of the property that was allotted to him by the partition decree to Bhanu Kumar, the appellant herein.
- In the first appeal to the HC under Section 96 of CPC, the defendants challenged the ex-parte decree.
- They also questioned the validity of the order of trial court granting ex-parte hearing.
- The HC allowed the appeal and overturned the ex-parte decree of the trial court on the grounds that the trial court should not have ordered an ex-parte hearing.
- Hence, an appeal was filed before the Supreme Court.
Issues Involved
- Whether the dismissal of an application under Order 9 Rule 13 of the CPC bars the statutory right of first appeal under Section 96 of the CPC?
Observations
- The SC said the Order XI, Rule 7 of the CPC allows a defendant to be heard in response to a suit if the ex-parte hearing order was made without the suit being heard fully.
- However, if the suit was heard entirely and adjourned for judgment, Rule 7 does not apply.
- Section 96(2) permits appeals against ex-parte decrees on grounds such as insufficient evidence or improper ex-parte hearing.
- Order XI, Rule 13 enables defendants to challenge ex-parte orders by citing valid reasons for non-appearance.
- Simultaneously pursuing appeal and Rule 13 relief is allowed, but if the appeal fails, Rule 13 cannot be used.
- However, a defendant's right to appeal cannot be infringed upon by public policy.
- Raising contentions in both appeals and Rule 13 applications risks conflicting judgments.
- Defendants may argue against the merit of the suit in appeals, citing inadequate evidence or lack of jurisdiction.
- Although a HC judgment may lack merit, it must assess the respondent's claims based on existing case records.
- Despite flawed reasoning, the HC must evaluate the respondent's arguments.
Conclusion
- The SC allowed the appeal and set aside the impugned judgement of the HC and remitted the case to the HC for consideration of the case of the parties on merit of the matter.
Note
- Section 96 of CPC- Appeal from original decree. –
- Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
- An appeal may lie from an original decree passed ex parte
- No appeal shall lie from a decree passed by the Court with the consent of parties.
- No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.
- Order XI Rule 7 of CPC: Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance
- Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance.
- Order XI Rule13 of CPC: Setting aside decree ex parte against defendant
- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
- Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
- Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim
- Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.