Madhya Pradesh High Court
Smt. Archana Kumar And Anr. vs Purendu Prakash Mukherjee And Anr. on 6 April, 2000
Equivalent citations: AIR2000MP279, 2000(3)MPHT35, AIR 2000 MADHYA PRADESH 279, 2000 A I H C 4134, (2000) 2 JAB LJ 84, (2001) 2 LANDLR 294, (2000) 2 MPLJ 491, (2000) 4 RECCIVR 350, (2000) 4 CIVLJ 482
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. Expressing doubt about the correctness of the decision rendered in the case of Sumera v. Madanlal, AIR 1989 Madh Pra 224 pertaining to the issue that after the dismissal of an application under Order 9, Rule 13 of the Code of Civil Procedure (in short 'the Code') to set aside an ex parte Judgment and decree whether an appeal could lie under Section 96(2) of the Code, assailing the pregnability of the judgment and decree on merits, a Division Bench of this Court thought it apposite that view taken in the case of Sumera (supra) required reconsideration and accordingly sought a reference to a larger Bench. That is how the matter is before us.
2. The facts as have been uncurtained are that the plaintiffs/respendents filed a suit for partition of certain properties situated at Napier Town, Jabalpur. The other prayers in the suit included grant of mesne profit and delivery of physical possession. Various grounds were averred for claiming these reliefs. In the suit one Smt. Suchttra Devi was arrayed as defendant No. 1 and during the pendency of the suit she expired. As her legal representatives were already on record as plaintiff and defendant No. 2, her name was deleted and defendants Nos. 2 and 3 were renumbered as defendants No. 1 and 2. The defendant No. 2 resisted the prayer of the plaintiffs and claimed to be the absolute owner of the property.
3. The learned trial Judge framed as many as six issues. After it recorded the evidence of the plaintiffs it granted opportunity to the defendants to cross-examine the plaintiffs' witnesses but on the date of hearing as the defendants were not available it proceeded ex parte. Eventually the case was fixed for delivery of Judgment. An application was moved on behalf of the defendants under Order 9. Rule 7 of the Code but the said application was dismissed by the trial Court. The suit was decreed and the plaintiff was granted the relief. Feeling aggrieved by the same the defendants preferred First Appeal No. 109/81. The plaintiffs/respondents did not file any cross-objection. But the petitioners preferred an application under Order 41, Rule 33 of the Code for modification of the decree claiming that he is entitled to 3/4th share of the property. One Bhanu Kumar Jain filed an application to join as a party to the appeal on the ground that he had purchased the property from the respondent No. 1. His application was allowed and he was permitted to file a cross-objection under Order 41, Rule 22 of the Code.
4. It is worth noting here that after the ex parte judgment and decree were passed the defendant filed an application under Order 9 Rule 13 of the Code for setting aside the same. The application was rejected by order dated 15-1-1986 by the Court of first instance. Feeling aggrieved Misc. Appeal No. 19/86 was carried to the appellate Court which stood dismissed on 5-4-1994 as the Court found that the cause shown was not sufficient for non-appearance of the defendant on the date fixed for hearing. Against the said order Special Leave Petition No. 1193/ 94 was preferred before the Apex Court which was dismissed as withdrawn. Thus, the matter regarding sufficiency of cause relating to non-appearance was put to rest.
5. In course of hearing of the First Appeal the plaintiff raised a preliminary objection before the learned Single Judge that the appeal preferred under Section 96 of the Code was not maintainable as the proceedings under Order 9 Rule 13 of the Code had attained finality. Reliance was placed on decision rendered in the cases Smt. Rani Choudhary v. Suraj Jit Choudhary. AIR 1982 SC 1397 and Surmera (supra). The learned Single Judge followed the view laid down in the case of Sumera (AIR 1989 Madh. Pra 224) (supra) and came to hold that the First Appeal was not maintainable. The other findings recorded by the learned Single Judge need not be adverted to by us.
6. Before we discuss in detail with regard to relevant provisions and the decisions cited at the Bar, we would like to refer to the case of Sumera (AIR 1989 Madh. Pra. 224) (supra) as that is the decision which has been followed by the learned Single Judge. The relevant portion of the said decision reads as under :
"Counsel has submitted that in the inslant case the petitioner having already availed the relief contemplated under Order 9 Rule 13 he had exhausted the remedy to challenge ex parte decree and therefore, the instant petition is not maintainable as in this petition the petitioner has challenged the order passed in the appeal.
4. Reading their Lordships' holding aforesaid we are tied hands and feet to say anything further in the matter. However, we make it clear if there is any subsequent Judgment of their Lordships clarifying the position or modifying the law in any manner it shall be open for the petitioner to apply for review of this order.
5. For the present we are of the view that the instant petition is not maintainable because the appeal itself was not maintainable on the holding aforesaid."
The Division Bench arrived at the aforesaid conclusion after quoting a passage from the decision of the Apex Court in the case of Smt. Rani Choudhary (AIR 1982 SC 1397) (supra).
7. The moot question that arises for consideration is whether the Division Bench has rightly appreciated the ratio decldendi of the case in Smt. Choudhary (AIR 1982 SC 1397) (supra). Before we advert to the aforesaid, we think it apposite to refer Order 9 Rule 13 of the Code. It reads as under ;
"13. Setting aside decree exparte 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 plaintiffs' claim] [Explanation Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on 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.)"
It is to be noted that the aforesaid explanation was incorporated by way of amendment in the year 1976. The note on the introduction of this explanation was published in the Gazette of India Extraordinary which reads as under :
"There is a divergence of a judicial opinion as to whether an ex parte decree can be set aside under Rule 13 after an appeal against such ex parte decree has been disposed of. An explanation is being added to the rule to clarify that an ex parte decree cannot be set aside under this rule when an appeal against such decree has been disposed of."
8. Thus, the intention of the Legislature was to incorporate the provision by way of an amendment so that, after remedy of an appeal is exhausted, no litigant can take recourse to the provision under Order 9 Rule 13 of the Code to attack the decree on the ground of sufficient cause of non-appearance.
9. Keeping the aforesaid background in view we will deal with the case of Smt. Rani Choudhary (AIR 1982 SC 1397) (supra).
10. It is necessary, nay, imperative to state the factual backdrop which gave rise to the case of Smt. Rani Choudhary (AIR 1982 SC 1397) (supra). In that case the appellant had filed a petition under Section 13 of the Hindu Marriage Act. 1955 for the dissolution of her marriage and to obtain a decree for divorce. Eventually the appellant obtained an ex parte decree on 6-12-1979. Feeling aggrieved by the same the husband preferred an appeal before the High Court. As the appeal was barred by time an application for condonation of delay was filed under Section 5 of the Limitation Act. The high Court dismissed the application for condonation of delay holding that no sufficient cause for the delay had been shown. Thereafter, an application under Order 9 Rule 13 of the Code was filed before the trial Court for setting aside the ex parte decree. The said application being barred by time was accompanied by an application for condonation of delay. The learned trlaljudge dismissed both the applications. An appeal was preferred by the husband contending inter alia, that the Court had erred in law in not setting aside the ex parte decree, though sufficient cause was shown for non-appearance of the appellant-husband on the date fixed for hearing of the petition for divorce. The regular appeal preferred under Section 96(2) of the Code was dismissed by the High Court on the ground of limitation. Though it was urged before the High Court that the application under Order 9 Rule 13 of the Code was not maintainable as the regular appeal had already been dismissed on the ground of limitation, yet the said contention was repelled by the High Court and the appeal was allowed. Against the said decision of the High Court the plaintiff-wife approached the Apex Court. Posing the question whether the dismissal of an appeal against an ex parte decree on the ground that the appeal is barred by limitation attracts the mischief of the provision contained in the Explanation to Order 9 Rule 13 of the Code and creates a bar in regard to the maintainability of an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree, Hon'ble A. N. Sen, J. registered the view as under :
"14. A plain reading of the Explanation clearly indicates that if any appeal against an ex parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex parte decree under Order 9 Rule 13 of the Code will be entertained. The words used in the Explanation are clear and unambiguous. The language used in the Explanation clearly suggests that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under Order 9 Rule 13 of the Code for setting aside the ex parte decree. An appeal may be disposed of on various grounds. It may be disposed of after proper hearing on merits and this is usually the normal way of disposed of an appeal. An appeal may be disposal of also for non-prosecution thereof. Though the dismissal of an appeal on the ground of non-prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non-prosecution results fn the disposal thereof. An appeal may also be dismissed on the ground of limitation, if condonation of delay in filing the appeal is not allowed by the Court. An appeal may also be liable to be dismissed for non compliance with any condition relating to the filing of the appeal and also for other reasons. An appellant is also entitled to withdraw the appeal and the withdrawal of the appeal also results in the disposal of the appeal, though in such a case no merits of the appeal are adjudicated upon. The language used in the Explanation makes it clear that the withdrawal of an appeal is considered to be disposal of the appeal, as contemplated in the Explanation. It is significant to note that though an appeal may be disposed of on very many grounds the legislature has thought it fit to provide in the Explanation that only when an appeal against an ex parte decree is disposed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree will not apply. The Legislature must be presumed to know that there are various ways of disposal of an appeal. The Legislature has, however, thought it fit to provide that when an appeal has been preferred against an ex parte decree, the disposal of the appeal on any ground excepting the solitary ground of disposal of the appeal by withdrawal of the same by the appellant will create a bar to the maintainability of an application under Order 9 Rule 13 of the Civil Procedure Code. By specifically providing in the Explanation that the disposal of any appeal from the ex parte decree on any ground other than the solitary ground of withdrawal of the appeal by the appellant, the legislative intent is made manifestly clear that in all other cases of the disposal of the appeal on any other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under Order 9 Rule 13 and no application will lie under Order 9 Rule 13 for the setting aside of an ex parte decree. Withdrawal of an appeal by an appellant does not result in any adjudication on merits. Even then, the withdrawal of an appeal is still considered to be a disposal of the appeal; and the disposal of an appeal only on this ground of withdrawal of the appeal by the appellant, it is made clear in the Explanation, will not create any bar to the maintainability of the application under Order 9 Rule 13 of the Civil P.C. On a proper interpretation of the Explanation, we are of the opinion that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and has been disposed of on any ground, the application under Order 9 Rule 13 of the Civil P.C.will not lie and cannot be entertained."
His Lordship further proceeded to express as follows :
"18. The words used in the Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal on merits resulting in the merger of the decree of the trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal. The explanation speaks of "the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that the disposal of the appeal may be on any ground and the withdrawal of an appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal ; and, the disposal of the appeal from the ex parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation. If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the trial Court with the decree of the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court. The Legislature could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal". The words used "disposal of the appeal on any ground than the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non-prosecution, though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the trial Court appealed against being merged with any decree of the appellate Court on the disposal of the appeal.
19. The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the trial Court with the decree, if any, of the Appellate Court ; but there cannot be any manner of doubt that when the appeal from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the Explanation is attracted and the application for setting aside the ex parte decree becomes incompetent after the disposal of the appeal and cannot be entertained.
20. As in our view, the application for setting aside the ex parte decree does not lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become necessary for us to go into the merits of the application to consider whether sufficient cause has been shown by the respondent for his non-appearance at the hearing at the date fixed and also for non-preferring the application within the time prescribed."
11. On a perusal of the aforesaid paragraphs it is plain as noon-day that their Lordships of the Apex Court were dealing with the effect and impact of the Explanation which was introduced into the said provision by the C.P.C. (Amendment) Act, 1976 (Act 104 of 1976].
12. It is worth noting that Hon'ble Pathak, J. (as his Lordship then was) while oncurring with the view of the Hon'ble A.N. Sen, J. setting aside the order of the High Court expressed as under : (Para 2 of AIR 1982 SC 1397) "..... .with the Explanation in operation, no application for setting aside an ex parte decree can lie where the defendant has filed an appeal and the appeal has been disposed of on any ground other than the ground that the appeal has been withdrawn by the appellant. No doubt that the provision is described as an "Explanation", but as is well known it is not the rubric which decisively defines the true nature of the statutory provision. Its true nature must be determined from the content of the provision, its import gathered from the language employed, and the language construed in the context in which the provision has been enacted. In the present case, the rule in Heydon's case (1584) 76 ER 637, approved of and applied by this Court in Swantraj v. State of Maharashtra (1974) 3 SCR 287 : AIR 1974 SC 517 and many other cases, is attracted what was the law before the amendment, what was the mischief and defect forwhich the law did not provide, what remedy has Parliament resolved and appointed to cure the mischief, and true reason of the remedy."
After so holding his Lordship proceeded to exposit thus :
"3. It has been observed earlier that a defendant intending to avoid an ex parte decree could apply to the trial Court for setting it aside and could also appeal to a superior Court against it. The Courts were open to a duplication of proceedings, and although the immediate relief claimed in the two proceedings was not identical both ultimately aimed at a re-decision on the merit. Moreover, on the two proceedings initiated by the defendant, the application under Rule 13 of Order 9 would subsequently become infructuous if it resulted in a decree superseding the trial Court decree. It was also possible to envisage the appeal becoming infructuous if the trial Court decree was set aside on the application under Rule 13 of Order 9 before the appeal was disposed of. The plaintiff was in the unfortunate position of being dragged through two Courts in simultaneous proceedings. Public time and private convenience and money was sought to be saved by enacting the Explanation. The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law. By enacting the Explanation, the Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree only if the defendant had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer an adjudication by the appellate Court on the merits of the decree or have the decree set aside by the trial Court under Rule 13 of Order 9. The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground he was denied the right to apply under Rule 1.3 of Order 9. The disposal of the appeal on any ground whatever, apart from its withdrawal constituted sufficient reason for bringing the ban into operation."
13. In this backdrop we are required to consider whether there is any impediment in preferring the appeal on merits. Mr. A. D. Deoras learned counsel for the appellant, has contended that an application under Order 9 Rule 13 of the Code and the appeal arising therefrom cover a different spectrum whereas the challenge to a Judgment and decree under Section 96 of the Code relates to a different sphere. Developing his argument he has proposed that the defendant may not be able to show sufficient cause to get an ex parte judgment and decree set aside but to scuttle his rights to challenge the original verdict on the merits would lead to a situation for the malady would be incurable and Jeopardy would be difficult to countenance. His further submission is that the introduction of the Explanation to Order 9 Rule 13 of the Code covers the area by which the defendant after preferring an appeal on merits and losing for some reason or the other cannot anchor his case under Order 9 Rule 13 of the Code. But, the converse situation is unacceptable for the simple reason, that situation is not envisaged in law and patent illegality can always be questioned in regular appeal.
Resisting the aforesaid submission Mr. Shripal Jain, learned counsel for the respondents, has contended that the Explanation was introduced to curtail and annihilate two-pronged attack on the judgment and decree. The learned counsel has heavily relied on the observations made by Hon'ble R.S. Pathak, J. That apart, he has preferred a written note of submission wherein he has referred to certain decisions which include a Full Bench decision of the Allahabad High Court in the case of Lal Singh v. Kunjan, ILR, (1882)4 All. 387. He has also relied on Aradha Chandra v. Mabangini (1896)ILR. 23 Calcutta 325-327. That apart, he has referred to number of Single Bench decisions of this Court which have followed the case of Sumera (AIR 1989 Madh. Pra 224) (supra).
14. The seminal question that arises for consideration is whether after dismissal of the application under Order 9 Rule 13 of the Code a regular appeal assailing the judgment and decree is maintainable. In the case of Sumera (AIR 1989 Madh. Pra. 224) (supra) their Lordships passed the order in a writ petition which arose out of an appeal and therein it was held that the appeal itself was not maintainable. The Division Bench quoted a passage from Smt. Rani Choudhary (AIR 1982 SC 1397) (supra) and arrived at the conclusion. In the case before the Apex Court, if we may say so, the fact situation was totally reverse. Their Lordships were not required to answer whether dismissal of an application under Order 9 Rule 13 of the Code bars a regular appeal under Section 96 of the Code. But on the contrary, their Lordships were considering the effect and impact of the Explanation which stipulates that if the defendant has preferred an appeal and the same has been disposed of except by way of withdrawal, he is debarred to seek remedy under Order 9 Rule 13 of the Code. We have quoted extensively from the decision of the Apex Court as rendered by A. N. Sen, J. and R.S. Pathak, J. to show that Division Bench did not appreciate the ratio properly. In_fact, R.S. Pathak. J. has observed the Legislative attempt incorporated in the explanation to discourage a two-pronged attack and to confine the defendant to a single course of action and if he did not withdraw the appeal filed by him and allowed the appeal to be disposed of on any other ground, he would be denied the right to apply under Order 9 Rule 13 of the Code.
15. From the aforesaid it cannot be construed that it lays down as a ratio that if an application under Order 9 Rule 13 of the Code has been dismissed on merits a regular appeal cannot be filed under Section 96 of the Code assailing the ex parte decree. At this Juncture, we may venture to say that it is well settled in law that a decision is a precedent for what it decides and not what is inferable from it. In this context, we may refer to a decision rendered in the case of State of Orissa v. Sudhansu Sekhar Mlsra, AIR 1968 SC 647, wherein it has been held as under : (at pp. 651 52) "A decision is only an authority for what it actually decides. What is of the essence is a decision its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl Of Halsbury LC said in Quinn v. Leathem, 1901 AC 495.
'Now before discussing the case of Alien v. Flood, (1898) AC1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every Judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."
In this regard we may profitably refer to the case of Regional Manager v. Pawan Kumar Debey. AIR 1976 SC 1766, wherein it has been held as under :
"7. We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh's case AIR 1974 SC 2192 (supra) it should no longer be possible to urge that Sughar Singh's case AIR 1974 SC 423 (supra) could give rise to some misapprehension of the law. Indeed we do not think that the principles of law declared and applied so often really changed. But, the application of the same law to the differing circumstances and facts of various cases have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases when the same principles are applied in each case to similar facts."
16. At this juncture, we would like to refer to the decision rendered in the case of Ambica Quarry Works v. State of Gujarat, AIR 1987 SC 1073 wherein, Sabyasachi Mukharji, J. (as his Lordship then was) speaking for the Court, expressed thus: (At pp. 1077-78) " The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
quoted from the placitum) In this context, we may profitably refer to a passage from Halsbury's Laws of England which speaks of ratio decidendi :
"573. Ratio decidendi :
The use of precedent is an indispensable foundation upon which to decide what is the law and its application to individual cases ; it provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. The enunciation of the reason or principle upon which a question before a Court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi. namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case gives rise to the decision. What constitutes binding precedent is the ratio decidendi, and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law. either statutory or Judge-made, and a minor premise consisting of the material facts of the case under immediate consideration.
The concrete decision alone is binding between the parties to it, but the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding; but, if it is not clear, it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.
The House of Lords is entitled to question or limit a previous ratio decidendi of the House (1) where it is obscure; (2) where it is out of line with other authorities or established principles; and (3) where it is much wider than was necessary for the decision. Where there is no discernible ratio decidendi common to the majority of the House of Lords the reasoning accepted in a long line of cases before that decision will be adopted by the House. Where too rigid an adherence to precedent may lead to injustice in a particular case and an undue restriction of the proper development of the law, the House of Lords may depart from its previous decisions when it appears right to do so.
When construing a statute the Court must not rely on judicial statements as to the construction, but must construe the words of the Act itself. Particularly in extempore judgments, wide expressions must be read according to the subject matter; an isolated phrase must not be taken as if it were intended to expound the whole law on the subject. The Court's authoritative opinion must be distinguished from proposition assumed by the Court to be correct for the purpose of the disposing of the particular case."
17. We may, at this stage, usefully refer to a Full Bench decision of Delhi High Court rendered in the case of Flying Officer S. Sundarajan v. Union of India AIR 1970 Delhi 29 (FB), wherein it has been laid down as under : (Para 21) "It is true that under Article 141 of the Constitution the law declared by the Supreme Court is binding on all the Courts and therefore, even the principles enunciated by the Supreme Court including its obiter dicta, when they are stated in clear terms, have a binding force. But when a question is neither raised nor discussed in a judgment rendered by the Supreme Court it is difficult to deduce any principle of a binding nature from it by implication."
In this context, we may refer to the decision rendered in the case of Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601, wherein their Lordships expressed the view as follows : (Para 19) "The observation from a judgment of the Supreme Court cannot be read in isolation and divorced from the context in which the same were made and it is improper for any Court to take out a sentence from the Judgment of the Supreme Court, divorced from the context in which it was given, and treat such an isolated sentence as the complete enunciation of law by the Supreme Court."
18. The purpose of referring to the aforesaid decisions is only to show that the Apex Court was not in seisin with regard to the maintainability of the appeal. We may at the cost of repetition state that their Lordships were, in fact, dealing with a converse situation. The learned counsel for the respondents has placed heavy reliance on the decision rendered in the cases of Mukesh v. Smt. Meenakhi, 1996 Jab.LJ 143; and Sumer Chand Jain v, Sharad Chand Nayak, 1995 (1) MPWN 154. The learned counsel has also brought to the notice of this Court the decision rendered in the case of Trilochan Singh v. Kartar Singh (Second Appeal No. 781/97).
19. As far as the decisions of this Court are concerned all of them have placed reliance on the decision rendered in the case of Sumera (AIR 1989 Madh. Pra. 224) (supra). As far as the Full Bench decision of the Allahabad High Court is concerned, the same does not exactly support the proposition and in any case, we are not persuaded to accept the same.
20. We may setforth at this juncture that a regular appeal has been provided under Section 96(2) of the Code. It is well settled in law that, it is not incumbent or obligatory on the part of the Court of first instance to pass an ex parte decree. The Court may refuse to do so depending upon the facts and circumstances. In an appeal under Section 96(2) of the Code the defendant can challenge the validity of the ex parte decree on the grounds of irregularity pointing out the mistake of the Court. The defendant can assail the Judgment and decree on merits also highlighting the Jurisdictional error, the inherent lack of jurisdiction if the same is patent from the averments in the plaint. We are not inclined to subscribe to the view that if the defendant has not entered contest in the suit and the Court of first instance has passed decree without entering into contentious issues, the same cannot be assailed in appeal. Presently we may proceed to give certain examples. In a suit for determination of the status of landlord and tenant which is not cognizable by the Civil Court but the Court passes an ex parte decree, indubitably the same can be assailed before the higher forum only pointing out that the suit as a whole was not maintainable. In a suit for declaration under the special statutes relating to consolidation of holding which have to be adjudicated by the special authorities and the Civil Court has no jurisdiction to entertain the suit in respect of such declaratory relief and the plaint is clear as noon day, on that score, irrefragably the same can be called in question in appeal. There may be cases even if the entire evidence is accepted and the plaint story is accepted in entirety without being controverted a decree cannot be passed. In our considered opinion, this can be gone into in a regular appeal. If a pure question of law flows from the admitted fact situation, definitely, that can be impugned in the regular appeal. It is to be borne in mind a right of appeal is vested in the litigant and it cannot be confined or circumscribed by certain conditions that only the sufficiency of cause or irregularity for proceeding ex parte can alone be questioned. Examples can be numerous. We may add one more by stating that supposing a plaintiff files a suit for relief which is exclusively covered by the M.P. Land Revenue Code and the Civil Court passes a decree ex parte at the instance of the plaintiff, the defendant certainly can question the legal propriety of the said decree in appeal only on the ground that such a suit could not have been instituted. The same also goes for a suit which is, prima facie, barred by limitation. We may also cite an example which readily comes to our mind. Under Section 64 of the M.P. Cooperative Societies Act certain disputes are adjudicatable by the Registrar. If a suit is filed which comes within the ambit and sweep of 'dispute' and is clearly perceptible at a glance on the plaint, it can be stated with certitude that the same can be challenged on merits in appeal. In this context, we may refer to a decision rendered in the case of M/s Mangilal Rungta, Calcutta v. Maganese Ore (India) Ltd., Nagpur. AIR 1987 Bombay 87, wherein a Division Bench of the Bombay High Court held that if the application for setting aside the ex parte decree has been dismissed subsequently in appeal against the decree grievance about the proceeding ex parte cannot be put forward. Their Lordships relied upon the decisions rendered in the cases of Badvel Chinna Asethu v. Vettipalli Kesavayya. AIR 1920 Madras 962 and Munassar Bin v. Fatima Begum, AIR 1975 Andh. Pra. 366. Their Lordships discussed with regard to the adequacy of evidence to sustain the judgment and decree which was passed ex parte. The Bench observed :
"6. Evidence, thus, is wholly insufficient to sustain Judgment and decree which seems to have been passed only because the defendant was ex parte. To dismiss the suit for want of evidence in appeal would be unfair under the circumstances and the only other course left is to remand the matter for fresh trial and fresh decision after application of mind to all relevant."
We are conscious, the Bombay High Court was not dealing with the proposition directly but it is indicative of the fact that if an application under Order 9 Rule 13 has been rejected in a regular appeal the same controversy cannot be re-opened but the sustainability of the Judgment can always be attacked.
21. Thus, we come to the conclusion that the case of Smt. Rani Choudhary (AIR 1982 SC 1397) (supra) does not lay down the law that once an application under Order 9 Rule 13 of the Code is rejected a regular appeal under Section 96(2) of the Code is not maintainable. We with due respect, are constrained to hold that the Division Bench in the case of Sumera (AIR 1989 Madh. Pra. 224) (supra) does not lay down the law correctly and as a logical corollary the decisions which have followed the said decision stand overruled.
22. Accordingly, we hold that even after dismissal of the application under Order 9 Rule 13 of the Code a regular first appeal under Section 96(2) of the Code is maintainable.
23. Having held that a regular appeal under Section 96(2) of the Code is maintainable against an ex parte decree, we further observe that a proceeding under Order 9 Rule 13 of the Code and a regular appeal can simultaneously be prosecuted. It would be open to the affected party to pray for stay of further proceedings in an appeal till the application under Order 9 Rule 13 of the Code is decided. It would be within the discretion of the appellate Court to pass appropriate order in this regard.
24. Let the appeals be placed before the Division Bench for disposal.