Orissa High Court
Gadadhar Swain & Others vs Namita Jena & Others on 7 August, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A.O. No. 13 of 2022
Gadadhar Swain & Others .... Appellants
Mr. S. Kar, Advocate
-Versus-
Namita Jena & Others .... Respondents
Mr. S.K. Mishra, Advocate CORAM:
JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:07.08.2023
1. Instant appeal in terms of Order XLIII Rule 1(u) read with Section 104 of the Code of Civil Procedure, 1908 is at the behest of the appellants assailing the impugned judgment dated 2nd November, 2022 promulgated in RFA No.55 of 2014 by the learned Additional District Judge, Jajpur, whereby, the decision in TS No.211 of 2004 was set aside and the suit was remanded back for a fresh disposal by the learned Civil Judge (Senior Division), Jajpur on the ground that the same is not tenable in law and hence, liable to be set aside.
2. The appellants as plaintiffs instituted the suit in TS No.211 of 2004 against the original defendant No.1 and respondents for a declaration that one Maguni, the father of said defendant and respondent Nos.3 to 5 and husband of defendant No.2 not to be the son of late Chakradhar Swain, who was the husband of the original plaintiff which was disposed of ex-parte vide judgment dated 31st October, 2013. Being aggrieved of, the defendants filed the appeal in RFA No.55 of 2014 which resulted S.A No.13 of 2022 Page 1 of 7 Gadadhar Swain & Others Vrs. Namita Jena & Others in passing of the impugned judgment and decree dated 2nd November, 2022 but the matter was remitted back for fresh adjudication. Since dissatisfied by the order of remand, the appellants have knocked the doors of this Court primarily on the ground, such as, the learned Lower Appellate Court could not have admitted additional evidence as per Order XLI Rule 27 C.P.C. when the respondents had no defence and rather defaulted in appearance leaving the disposal of the suit ex-parte.
3. Heard Mr. Kar, learned counsel for the appellants and Mr. Mishra, learned counsel for the respondents.
4. Mr. Kar, learned counsel for the appellants submits that the order of remand by the learned Lower Appellate Court cannot be sustained in law since it admitted additional evidence under Order XLI Rule 27 C.P.C. despite objection received from the appellants. It is contended that additional evidence at the appellate stage cannot be looked into without pleadings before the Trial Court. According to Mr. Kar, the respondents did not seek for the ex-parte judgment and decree in the suit to be set aside in terms of Order IX Rule 13 C.P.C., rather, challenged the same in appeal under Section 104 C.P.C and when the suit was disposed of ex-parte, the learned Lower Appellate Court could not have accepted additional evidence under Order XLI Rule 27 C.P.C. to introduce evidence without any such pleadings of defendant and while contending so, Mr. Kar, learned counsel for the appellants cited a decision of the Madras High Court in the case of A. Meiazhagan Vrs. Mangayarkkarasi & Others reported in AIR 2017 (NOC) 882 (Madras). Furthermore, the following decisions, such as, Amir Mohammad and Another Vrs. Saliman Bibi and Others AIR 2008 Orissa 46 and of the Apex Court in Bhanu Kumar Jain Vrs. Archana Kumar & Another (2005) 1 SCC, 787 have also been placed reliance on to contend that two S.A No.13 of 2022 Page 2 of 7 Gadadhar Swain & Others Vrs. Namita Jena & Others options are available, either to challenge the ex-parte order under Order IX Rule 13 C.P.C. or to file an appeal against the judgment and decree for a decision on merit since the respondents availed the latter, the learned Lower Appellate Court ought to have examined the legality of the impugned decision without accepting any additional evidence in absence of any defence pleading on record.
5. On the contrary, Mr. Mishra, learned counsel for the respondents justified the impugned judgment and decree in RFA No.55 of 2014 and submitted that the learned Lower Appellate Court did not commit any error or illegality in restoring the suit for its disposal by the Trial Court assigning specific reasons therefor. In course of hearing, Mr. Mishra referred to the decision in Amir Mohammad (supra) and Lal Devi and Another Vrs. Vaneeta Jain and Others of the Apex Court reported in 2007 (II) OLR (SC) 41. It is contended that the learned Lower Appellate Court on just ground set aside the ex-parte decree and rightly remanded the matter back for a fresh decision so as to enable the respondents to participate.
6. The following questions emerge for adjudication, such as, (i) whether, the learned Lower Appellate Court did possess the power to remand with a direction for the respondents to file Written Statement while disposing of an appeal under Section 96(2) C.P.C? (ii) If the defendants having been permitted to file Written Statement in the suit while remanding the matter back exercising jurisdiction under Section 96(2) C.P.C., the ex-parte decree becomes redundant thereby defeating the purpose of Order IX Rule 13 C.P.C? (iii) Whether, the learned Lower Appellate Court was correct in considering the additional evidence under Order XLI Rule 27 C.P.C. in an appeal under Section 96(2) when there was no evidence adduced by the S.A No.13 of 2022 Page 3 of 7 Gadadhar Swain & Others Vrs. Namita Jena & Others respondent as the suit was decreed ex-parte without any Written Statement filed?
7. The Trial Court since the respondents did not turn up proceeded with the suit ex-parte and on the basis of the pleading and evidence received from the side of the appellants decreed the suit and declared said Maguni not being the son of Malati and Chakradhar, the predecessor-in-interest of the appellants. In fact, the legal heir certificate marked as Ext.1 was the basis for the Trial Court to declare so and decree the suit. Instead of applying the ex-parte decree to be set aside under Order IX Rule 13 C.P.C., the respondents challenged it in appeal under Section 96(2) C.P.C. wherein the impugned judgment was interfered with subject to remand for a fresh adjudication. As early mentioned, additional evidence was received and considered at the time of deciding the appeal which has been challenged on the ground that there was no scope for the learned Lower Appellate Court to accept it in absence of any such pleading and evidence by the respondents in the suit.
8. In Meiazhagan (supra), the Madras High Court held that when there is absence of pleadings before the Trial Court and defendant was proceeded ex-parte, inasmuch as, no steps were taken to contest the suit on merit, additional evidence under Order XLI Rule 27 C.P.C. at the appellate stage cannot be looked into. It has been further held therein that affidavits do not substitute pleadings and the defendant challenging the ex-parte decree cannot take shelter of any such affidavit and he is required to confine the challenge against merits of the ex-parte decree. In Amir Mohammad (supra), this Court held that in an appeal under Section 96 C.P.C., a defendant cannot be allowed to show and satisfy the court that he was prevented by sufficient cause from appearing in the suit and for that purpose, it is open S.A No.13 of 2022 Page 4 of 7 Gadadhar Swain & Others Vrs. Namita Jena & Others for him to take recourse to Order IX Rule 13 C.P.C. In Bhanu Kumar Jain (supra), the Apex Court held and observed that when there is an ex-parte decree passed in a suit, the course which is open for a party is to file an application under Order IX Rule 13 C.P.C. and/or an appeal under Section 96(2) apart from seeking review or institution of a suit for setting aside the decree on the ground of fraud and when any such appeal under Section 96(2) C.P.C. is dismissed, application under Order IX Rule 13 would not be maintainable and moreover, if any such request under Order IX Rule 13 C.P.C. failed, the defendant can file an appeal thereagainst under Order XLIII Rule(1)(d) C.P.C. In fact, the Apex Court had a detailed discussion as to the options available for a defendant vis-a-vis an ex-parte decree in a suit.
The above remedies are available in case of an ex-parte decree sought to be challenged by a defendant. In the instant case, the respondents challenged the ex-parte decree for a decision on merit, but at no stage before the learned Lower Appellate Court ever raised the ground of default. In other words, the respondents questioned the legality of the judgment of the Trial Court in the appeal under Section 96(2) C.P.C. for a final decision and on merit.
9. The question is, whether, the learned Lower Appellate Court was right in dealing with the additional evidence under Order XLI Rule 27 C.P.C. considering the materials produced? The suit by the appellants is declaratory in nature. The learned Lower Appellate Court did not set aside the ex-parte decree on any such ground of the respondents which led to the latter's default before the Trial Court. Admittedly, the evidence so submitted by the respondents was considered by the learned Lower Appellate Court while dealing with an application under Order XLI Rule 27 C.P.C. It is not in dispute that the respondents not only failed to S.A No.13 of 2022 Page 5 of 7 Gadadhar Swain & Others Vrs. Namita Jena & Others respond in the suit but also had not filed their defence. It was therefore, challenged on the ground that in absence of any such pleading by the respondents in the suit, there was no occasion for the learned Lower Appellate Court to receive additional evidence under Order XLI Rule 27 C.P.C. and in that regard, the decision in A. Meiazhagan (supra) was referred to. However, the Court finds that the learned Lower Appellate Court not only took cognizance of the additional evidence but also was not satisfied with ex-parte decree while considering it on merit as to the nature of evidence received by the Trial Court. As a matter of fact, the appellants relied on a legal heir certificate marked as Ext.1 on the strength of which the Trial Court decreed the suit. It was realized that Ext.1 was issued on 16th August, 2004 which was during the pendency of the suit and it was obtained for a specific purpose, such as, withdrawal of money and therefore, it was concluded that declaration of a status on the basis of such a document was unjustified. That apart, the appellants had sought for declaration simplicitor without any consequential relief when in the pleading it was admitted that certain documents were in place and allegedly created by late Maguni while claiming himself as the son of the original plaintiff. Referring to the decision in Amir Mohammad (supra), learned counsel for the respondents submits that even though the correctness of an ex- parte judgment may be examined on the basis of the materials available on record and also if there was any error, defect or irregularity which affected the decision of the suit. There is no quarrel over the above settled position of law. At the cost of repetition, it is stated that ex-parte judgment may be challenged with all the options available for the defendant but while dealing with an appeal under Section 96(2) C.P.C., the same shall have to be considered on merit and not to examine whether there was sufficient cause for non-appearance before the Trial Court.
S.A No.13 of 2022 Page 6 of 7Gadadhar Swain & Others Vrs. Namita Jena & Others In the case at hand, the respondents did not question the ex- parte decree on any such ground of default but on merit which was duly examined by the learned Lower Appellate Court which though received or dealt with the additional evidence but being not satisfied with the nature of evidence already on record and relief sought for which was merely for declaration of status. In the considered view of the Court, the matter was remanded for a fresh adjudication which is not entirely based on additional evidence. As a consequence, the Court is of the view that the respondents should only be allowed to participate in the trial as it is just and expedient in the interest of justice since there is pleading to the effect that late Maguni proclaimed himself as the successor of the original plaintiff and for having noticed existence or creation of certain records in support thereof.
10. Accordingly, it is ordered.
11. In the result, the appeal stands dismissed, however, with the observation as aforesaid but without costs. Since the suit on remand is a year-old one, the learned Civil Judge (Senior Division), Jajpur is hereby requested to ensure its disposal at the earliest.
(R.K. Pattanaik) Judge Signature Not Verified Kabita/Roji Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 14-Aug-2023 10:54:20 S.A No.13 of 2022 Page 7 of 7