Madras High Court
S.Arul Dhas vs F.Hubert on 7 April, 2015
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.04.2015 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(NPD)(MD)Nos.2497 of 2012 and 262 of 2013 and M.P.(MD)Nos.1 of 2012 and 1 of 2013 S.Arul Dhas : Petitioner in both C.R.Ps. Vs. 1.F.Hubert 2.Lilly Stella Bai : Respondents in both C.R.Ps. Prayer in C.R.P.(NPD)(MD)No.2497 of 2012: Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, praying to set aside the fair and final order dated 02.08.2012 passed in E.A.No.50 of 2011 in E.P.No.150 of 2006 in O.S.No.349 of 2004, on the file of the Principal District Munsif Court, Nagercoil. Prayer in C.R.P.(NPD)(MD)No.262 of 2013: Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, praying to set aside the fair and final order dated 21.12.2012 passed in I.A.No.172 of 2011 in O.S.No.349 of 2004, on the file of the Principal District Munsif Court, Nagercoil. !For Petitioner : Mr.M.Thilagar ^For Respondent No.1 : Mr.R.Murugan :COMMON ORDER
The order dated 02 August, 2012 in E.A.No.50 of 2011 in E.P.No.150 of 2006 in O.S.No.349 of 2004, dismissing the application filed under Section 5 of the Limitation Act, to condone the delay in filing the application to set aside the exparte order is challenged in C.R.P.(NPD)(MD)No.2497 of 2012.
2. The order dated 21 December, 2012 in I.A.No.172 of 2011 in O.S.No.349 of 2004, dismissing the application filed under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the exparte decree is challenged in C.R.P.(NPD)(MD)No.262 of 2013.
3. The first respondent filed a suit in O.S.No.349 of 2004 against the petitioner and the second respondent, praying for a decree of specific performance on the strength of the agreement dated 03 April, 1998. The petitioner failed to appear before the Trial Court and the same resulted in passing an exparte decree. The first respondent filed Execution Petition in E.P.No.150 of 2006, to execute the decree dated 06 February, 2003 in O.S.No.22 of 2000, which was re-numbered as O.S.No.349 of 2004. The Trial Court executed the decree. The petitioner, thereafter, filed application in E.A.No.50 of 2011 to condone the delay in filing the application to set aside the exparte order. The petitioner filed another application in I.A.No.172 of 2011 to condone the delay in filing the application to set aside the exparte decree passed in O.S.No.349 of 2004. The Trial Court dismissed both the applications on the ground that the decree has already been executed and in case it is set aside, at this point of time, the first respondent would be put to great loss. Feeling aggrieved, the petitioner has come up with the Civil Revision Petitions.
4. Heard the learned counsel for the petitioner and the learned counsel for the first respondent.
5. The first respondent preferred the suit in O.S.No.349 of 2004 for specific performance, contending that the petitioner herein executed a sale agreement dated 03 April, 1998, but failed to execute the sale deed, after receiving the balance sale consideration. The petitioner remained exparte. The Trial Court, therefore, passed an exparte decree. It is true that the decree was subsequently executed.
6. The core question is as to whether the decree passed by the Trial Court would satisfy Section 2(9) of the Code of Civil Procedure, 1908.
7. The relief of specific performance is a discretionary remedy. Merely because the plaintiff in a suit for specific performance proved the execution of sale agreement, he would not get a right automatically for a decree. The relief of specific performance, being a discretionary remedy, the Court should see the background facts. The Court should be satisfied that the conduct of the plaintiff has been fair and as such, he is entitled for a decree. In the subject case, the Court simply passed a decree, consequent to the non-appearance of the petitioner. There was no discussion at all. It was a default decree, consequent to the non-appearance of the petitioner. The Trial Court failed to analyze the matter.
8. It is true that the petitioner filed the applications only after a long period. The Trial Court dismissed the applications solely on the ground that the decree has already been executed. When it is made out that the decree itself was not made in accordance with the provisions of the Civil Procedure Code, no reliance could be placed on such decree.
9. The fact that the defendants were set exparte, 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 exparte judgment and decree solely on account of the non-appearance of defendants.
10. 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.349 of 2004 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:-
11. A Division Bench of this Court in Meenakshisundaram Textiles vs. Valliammal Textiles, 2011(3) CTC 168, 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.
16. 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.
20. 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.
21. 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."
12. Most recently, in Shantilal Gulabchand Mutha vs. Tata Engineering and Locomotive Company Ltd. And another, 2013 (4) SCC 396, the Supreme Court considered the legality of an exparte Judgment and Decree passed by the Trial Court without indicating the points for determination and considering the matter on merits.
"5. This Court in Balraj Taneja & Anr. V. Sunil Madan & Anr., AIR 1999 SC 3381 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.
6. 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.
9. 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."
13. The learned Trial Judge was more concerned about the money spent by the first respondent. The learned Trial Judge omitted to take note of the fact that the decree was, in fact, a default decree and it was not on merits. Such being the factual position, I am of the view that the petitioner must succeed.
14. In the result, the order dated 02.08.2012 in E.A.No.50 of 2011 in E.P.No.150 of 2006 in O.S.No.349 of 2004 and the order dated 21.12.2012 in I.A.No.172 of 2011 in O.S.No.349 of 2004, respectively, on the file of learned Principal District Munsif, Nagercoil, are set aside. The Civil Revision Petitions are allowed accordingly. The learned Trial Judge is directed to dispose of the suit in O.S.No.349 of 2004 on merits and in accordance with law, as expeditiously as possible, and in any case, within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petitions are closed.
07.04.2015 Index:Yes/No Internet:Yes/No Note to office:
Issue order copy by 17.04.2015.
SML To The Principal District Munsif Court, Nagercoil.
K.K.SASIDHARAN, J SML Common Order made in C.R.P.(NPD)(MD)Nos.2497 of 2012 and 262 of 2013 Dated:-
07.04.2015