Bhanu Kumar Jain v. Archana Kumar AIR 2005 SC 626

Case Summary

1. Appeal before the Supreme Court by way of Special Leave Petition under Article-136 of the Constitution. Leave granted.
2. Facts of the case:
   1. One Sh. N.N. Mukherjee filed a partition suit against his wife, son and daughter (Archana Kumar). The respondents did not file any written statements or appeared on the date of hearing of the suit. The suit was posted for ex parte judgment. On the date of judgment the respondents appeared and filed an application U/O-9, R-7 for setting aside the ex parte hearings. The said application was dismissed and the suit was decreed ex-parte in favour of the plaintiff.
   1. Thereafter an application U/O-9, R-13 was filed for setting aside ex- parte decree. The application was dismissed. A civil revision petition before the District Judge challenging the dismissal of O-9, R-13 application was also dismissed. An appeal to the High Court U/O-43, R-1(d) was also dismissed. An SLP filed before the SC against the HC order was dismissed as withdrawn. It may be noted here that all these proceedings relates to the dismissal of O-9, R-13 application and did not challenge the ex-parte decree per se.
   1. In the meantime  the  plaintiff  transferred  his  rights,  title  and  interest of his share of property that  was  allotted  to  him  by  the  partition decree to Bhanu Kumar, the appellant herein.
   1. In first appeal to the High Court U/S-96(2), 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 grounds that the trial court could not have ordered ex parte hearing.
   1. Hence this SLP before the Supreme Court. Leave granted.
3. Questions of law before the Supreme Court:
   1. Was the HC justified in first appeal U/S-96(2) while hearing appeal against ex-parte decree to take into account the validity of the order granting ex-parte hearing of the trial court, which had already been unsuccessfully challenged first by an  application  U/O-9,  R-13,  then by revision and then by an appeal U/O-43, R-1(d)? What is the scope of O-9, R-7; O-9, R-13; U/O-43, R-1(d) and of first appeal U/S-96(2)?
   2. What are the remedies available to a defendant in the event of  an  ex parte decree being passed against him in terms of O-9, R-13 and the extent and limitation thereof?
4. Decision of the Supreme Court:
   • When an application under O-9, R-13 is dismissed the defendant can only avail the sole remedy available i.e. to prefer an appeal in terms of O-43 R-1(d) of the Code. Once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal U/S- 96(2).
5. Important paragraphs from the Judgment:

Order 9 Rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex parte hearing was passed, only in the event, the suit had not been heard. In a case where hearing of the suit was complete and the court had adjourned the suit for pronouncing the judgment, an application under Order 9 Rule 7 would not be maintainable.

It remains undisputed that both the respondents filed application U/O-9, R-13 for setting aside the ex parte decree before the learned trial Judge; then filed a revision application against the order and also preferred appeal U/O-43 R-1(d) against the judgment of trial court dismissing the O-9, R-13 application. The said applications and appeal had been dismissed. Even a special leave petition filed was dismissed as withdrawn.

In that view of the matter it is not permissible for the respondents now to contend that it was open to them to reagitate the matter before the High Court U/S-96(2).

An appeal against an ex parte decree in terms of Section 96(2) of the Code could be filed on the following grounds:

1. The materials brought on record in the ex parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and
2. The suit could not have been posted for ex parte hearing.

In an application under Order 9 Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.

When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal U/S-96(2) and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial

court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code, the petition under Order 9 Rule 13 would become non maintainable. However, the converse is not true i.e. if the application U/O-9, R-13 gets dismissed, the appeal U/S-96 does not become non maintainable.

In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an appellant to raise a contention as regards correctness or otherwise of an interlocutory order passed in the suit, subject to the conditions laid down therein.

There is a distinction between “issue estoppel” and “res judicata”. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord.

We have 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 there against 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 U/S-96. 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.

We hold that while in a first appeal U/S-96(2), 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 on the merits 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 such an appeal. The “Explanation” appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Choudhury [(1982) 2 SCC 596], P. Kiran Kumar [(2002) 5 SCC 161] and Shyam Sundar Sarma v. Pannalal Jaiswal [(2005) 1 SCC 436].

We, therefore, are of the opinion that although the judgment of the High Court cannot be sustained on the premise on which the same is based, the respondents herein are entitled to raise their contentions as regards merit of the plaintiff’s case in the said appeal confining their contentions to the materials which are on record of the case.

For the reasons aforementioned, we are of the opinion that although the judgment of the High Court is not sustainable as the reasons in support thereof

cannot be accepted, the High Court for the reasons assigned hereinbefore must examine the respondents’ claim on merits of the matter.

The appeal is, therefore allowed, the impugned judgment is set aside and the case remitted to the High Court for consideration of the case of the parties on merit of the matter. No order as to costs.