Andhra HC (Pre-Telangana)
Polsani Jagannath Reddy And Anr. vs Gurram Vijaya on 6 March, 1998
Equivalent citations: 1998(4)ALD262, 1998(4)ALT257
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER B. Sudershan Reddy, J.
1. Heard. By the impugned decree, the lower appellate Court dismissed the appeal as not maintainable on the ground that two applications filed by the appellants herein under Order IX, Rule 13 CPC for setting aside the ex parte decree and another application for condonation of delay were rejected by the trial Court. Against the order of such rejection, the matter was taken to this Court. In this view ofthe matter, when the appellants have already exhausted the remedy under Order IX, Rule 13 CPC, they could not maintain the appeal.
2. The learned Counsel for the appellants strenuously contended that the remedy to file an application under Order IX, Rule 13 CPC and the remedy by way of an appeal under Section 96(2) CPC are concurrent remedies and an appeal against the original ex parte decree can be preferred notwithstanding that the application under Order IX, Rule 13 CPC read with Section 5 of the Limitation Act has been rejected. The learned Counsel for the appellants further submitted that the Court below is in error in relying upon a Division Bench judgment of this Court in Munassar Bin v. Fatima Begum, . He further submitted that according to the latest judgment of this Court reported in Ch. Prabhakar v. Ch. Sadanandam, , notwithstanding dismissal of petition under Order IX, Rule 13 CPC, the appellant can file an appeal under Section 96(2) CPC. On the other hand, the learned Counsel appearing for the respondent contended that having exhausted one remedy under Order IX, Rule 13 CPC, the appellants could not have fallen back on the appeal provisions under Section 96(2) CPC. He relied upon the judgment referred to cited supra and also on a judgment of the learned single Judge of this Court in Mohd. Iqbal v. K. Jagadeshwar Rao, 1989 (1) APLJ 345. He submitted that these remedies arc concurrent but the appellants have to select one of those remedies and having selected the remedy under Order IX, Rule 13 CPC, the appellants could not have preferred an appeal under Section 96(2) CPC. He also relied upon a judgment of the Supreme Court in Rani Choudhury v. Suraj Jit Choudhry, in support of his contention.
3. A similar question did come up before this Court on an earlier occasion in Mohd. Iqbal v. K. Jagadeshwar Rao (supra). In that judgment, the learned single Judge of this Court held that a person aggrieved by an ex parte decree has the following four remedies :
"Firstly, it is open to the defendant to make an application under Order 9, Rule 13 or to file an appeal under Section 96(2) or to file a review under Order 47, Rule 1, or an independent suit alleging fraud on the defendant and on the Court."
Regarding the question whether one can opt these remedies simultaneously, it was observed as under :
"As regards the right of these remedies are concerned, it is always open to the suitor to elect any one of the remedies. It is now well settled by catena of decisions of several High Courts including the Madras High Court and this Court, that simultaneously the procedure under Order 9, Rule 13 and Section 96(2} of the Code can be pursued. But no order could be passed "after orders are passed under either of the provisions.''
4. From the above judgment it follows that it is always open to the person aggrieved to select any one of these remedies and he cannot resort to these remedies simultaneously. In another judgment of this Court reported in Munassar Bin v. Fatima Begum (supra), the Division Bench ruled in paragraph 5 of the judgment as under :-
"It is settled law that when an ex parte decree is passed the defendant has two concurrent remedies. He can either apply under Order 9, Rule 13, Civil Procedure Code to set aside the ex parte decree or prefer a regular appeal against the ex parte decree. But the further question remains as to whether in an appeal against the ex parte decree it is open to the appellate Court to go into the question whether the lower Court was right in setting the defendant ex parte or not or whether its power is confined only to going into the merits of the plaintiffs' claim against the defendants."
From this judgment of the Division Bench also it appears that a person affected by ex parte decree can either apply under Order 9, Rule 13, C.P.C. to set aside the ex parte decree or prefer an appeal against the ex parte decree. In the same paragraph, the Division Bench after noticing certain judgments of Madras High Court, noticed the principle of law as under :
"It was held that where an application to set aside the ex parte decree has been rejected under Order 9, Rule 13 it is not open to the defendant to have the question reagitated in the appeal from the decree itself and such a right is not given by Section 105 of the Civil Procedure Code."
From the above law laid down by the Division Bench also it is clear that once a person exhausted the remedy of Order 9, Rule 13, C.P.C., such a person has no right of appeal under Section 96(2) of C.P.C. But the later judgment of the Division Bench has taken a contra view in Chandrapalaka Prabhakar v, Chandrapalka Sadanandam (supra). In the later judgment the Division Bench of this Court at paragraph 3 held as under :
"The learned Counsel for the appellant herein first argued that as the defendant had successfully pursued the matter by filing an application under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree he could not challenge the decree by filing an appeal. According to him, a regular appeal under Section 96 and the remedy by way of filing an application under Order 9, Rule 13 C.P.C. are parallel remedies and as one of the remedies was availed, the other remedy was not open. We find no substance in the contention. In an application under Order 9, Rule 13 CPC, what the Court has to see is existence or other of sufficient cause for non-appearance on the date when he was proceeded ex parte by the Court; whereas in an appeal what is required to be seen by the Court is whether the decree impugned is or is not in accordance with law or supportable on the basis of material brought on record. Accordingly, we are of the view that both the remedies are open to the defendant in the suit who suffered an ex parte decree" (empliasis supplied) From the above discussion, it is clear that there is prima facie conflict between the Division Bench Judgment of this Court reported in Munassar Bin v. Fatima Begum (supra) and the later Division Bench judgment of this Court reported in Chandrapalaka Prabhakar v. Chandrapalka Sadanandam (supra). In this view of the matter I think it appropriate to admit this appeal.
5. Having regard to these circumstances and also having regard to the fact that it is better to lay down a correct law on the proposition, I think it appropriate to refer this case to the Division Bench. Hence, I pass the order as under :
Admit. The appeal is referred to the Division Bench. Office is directed to post this matter and also C.M.P.No. 15165 of 1995 before a Division Bench on 24-12-1997, after obtaining necessary orders from the Hon'ble the Acting Chief Justice.
6. This Appeal coming on for final hearing finally before the Hon'ble Mr. Justice P. Ramakrishnam Raju and the Hon'ble Mr. Justice B. Sudershan Reddy on 6-3-98 pursuant to the order of reference of the Hon'ble Mr. Justice B.S. Raikote dated 22-12-97 and upon persuing the said order and upon hearing the above Counsel, the Court on 6-3-98 delivered the following judgment.
Second Appeal No.755 of 1997P. Ramakrishnam Raju, J.
7. This Second Appeal is posted before us pursuant to an order of our learned brother Justice B. S. Raikote, who passed the following order :
"Admit. The appeal is referred to the Division Bench. Office is directed to post this matter and also C.M.P.No. 15165 of 1995 before a Division Bench on 24-12-I997, after obtaining necessary orders from the Hon'ble the Acting Chief Justice."
8. The order of reference was made by the learned Judge as he apparently noticed prima facie conflict between the two Division Bench judgments reported in Munassar Bin v. Fatima Begum and Ch. Prabhakar v. Ch. Sadanandam .
9. It is necessary to state a few relevant facts leading to the filing of this Second Appeal.
10. The respondent herein filed O.S.No.1453 of 1987 on the file of the District MunsiFs Court, Huzurabad against the appellants for perpetual injunction restraining them from interfering with her possession of the plaint schedule agricultural lands. Though the appellants have received suit summons and engaged an Advocate who did not file any written statement, and hence, the learned District Munsif passed an exparte decree on 14-2-1990. Appellants filed an application under Order 9, Rule 13 C.P.C. along with a petition under Section 5 of the Limitation Act, to condone the delay in I.A.No.432 of 1992 which was dismissed on 7-6-1993. Appellants unsuccessfully carried the matter in C.R.P.No.3036 of 1993 to the High Court which was dismissed on 1-9-1993. However, appellants again filed A.S.No.3 of 1997 before the Subordinate Judge's Court, Huzurabad questioning the decree dated 14-2-1990. The Subordinate Judge dismissed the appeal as not maintainable on 11-9-1997. Hence the Second Appeal.
11. The learned Subordinate Judge placed reliance on a Division Bench Judgment of this Court reported in Munassar Bin v. Fatima Begum, in coming to this conclusion.
12. As already seen, the learned single Judge before whom the Second Appeal was posted for admission noticed that there is prima facie conflict between the view taken by the Division Bench in Munassar Bin v. Fatima Begum (supra) and a later Division Bench in Ch. Prabhakrav. Ch. Sadanandam, .
13. Before we actually enter into the arena of conflict of view taken by both the Division Benches, it is necessary to look at the relevant provisions of the C.P.C.
Order 9, Rule 13 C.P.C. reads as follows :
"Setting aside decree ex parts against defendant : 13. 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 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.) Section 96 CPC reads thus :
"Appeal from original decree: 96.(1) 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 he from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) 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 three thousand,, rupees.) A conjoint reading of both the provisions clearly indicates that the defendant who suffered an ex parte decree has two remedies, either to apply under Order 9, Rule 13 C.P.C. to set aside the ex parte decree on satisfying the Court that the summons was not duly served., or though served, he was prevented from any sufficient cause from appearing when the suit was called on for hearing, or to file a regular appeal from original decree to the Court authorised to hear appeals from the decisions of the Court that passed the decree. Subsection (2) of the Section 96 dispels any doubt in this regard as it specifically provides for an appeal from an original decree which is passed ex parte. The remedies are concurrent.
14. But still the question is whether the defendant who avails of remedy under Order 9, Rule 13 unsuccessfully, can he again file an appeal under Section 96 C.P.C.
15. In Rani Choudhury v. Suraj Jit Choudhury, , the Apex Court considering the effect of the explanation to Rule 9 to Order 13 C.P.C. held that when an appeal is filed against ex parte decree, and when the said appeal has been disposed of on any other ground, except on the ground the appellant has withdrawn the appeal, no application under Rule 13 of Order 9 is maintainable. This is a converse case to the one before us. We are not laced with the situation where the appellant has already filed appeal which was disposed of except by withdrawing the same, and has come up with an application under Order 13, Rule 9 C.P.C. to set aside the ex parte decree. Therefore, this judgment cannot provide any solution for determining the issue before us.
16. The scope of the two provisions extracted above is entirely different. In an application under Rule 13 of Order 9, what all the Court has to see is whether summons was not duly served, or whether the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. If the Court is satisfied that either the summons was not served or though served, he was prevented by sufficient cause, it may set aside the exports decree, and restore the suit to its original position before passing the decree. But in an appeal under Section 96, the appellate Court has ample jurisdiction to go into the merits of the decree. In other words, if there is some evidence adduced on behalf of the plaintiff on which the decree is based, the appellate Court can go into the sufficiency or reliability of the said evidence as well as maintainability of the suit, including the jurisdiction of the lower Court, or whether the suit is barred by time, or the legality of the decree etc. These considerations have no place while considering the application filed under Order 9, Rule 13. Therefore, the scope of enquiry under the two provisions is entirely different apart from forums being different viz., trial Court in one case, and the appellate Court in another case. These features distinguishing application of one provision from the other cannot exclude the enquiry in one application from the other unless it is expressly excluded or by necessary implication. There is nothing in the Act which prohibits the defendant from filing an appeal if his application under Order 9, Rule 13 is dismissed.
17. A Division Bench of this Court about which a reference is already made Munassar Bin v. Fatima Begum (supra) observed thus:
"It is settled law that when an ex parts decree is passed the defendant has two concurrent remedies. He can either apply under Order 9, Rule 13, Civil Procedure Code to set aside the ex parte decree or prefer a regular appeal against the ex parte decree. But the farther question remains as to whether in an appeal against the ex parte decree it is open to the appellate Court to go into the question whether the lower Court was right in setting the defendant ex parte or not or whether its power is confined only to going into the merits of the plaintiffs' claim against the defendants."
18. In the said case, an application under Order 9, Rule 13 was filed which was dismissed, and a further appeal preferred against the said order was also dismissed as withdrawn. So, in such a situation, the question with which the Bench was confronted is whether the defendant who filed a regular appeal against the ex parte decree can contend that the lower Court was in error in setting the defendant ex parte. The Bench observed that in such a situation, it is not open to the appellant to question to order setting the defendant ex parte inasmuch as the defendant had filed a petition to set aside the ex parte order which was dismissed and the appeal preferred against that order was also dismissed as withdrawn. It is necessary to notice that the ex parte order was passed on 24-12-1966, and an ex parte decree was passed on 7-3-1966, both before the Civil Procedure Code (Amendment) Act, 1976. Under this amendment, Explanation 2 to Order 2, Rule 13, was brought in. The object of the said explanation seems to be to set at rest divergent judicial opinion as to whether an ex parte decree can be set aside under Order 9, Rule 13 after an appeal against the said ex parte decree had been disposed of. The proviso, in our view restricts filing of an application under Rule 13 if an appeal has been disposed of on any ground except on ground of withdrawal; in all other cases, where the appeal was disposed of either on merits or for non-prosecution, or on the ground of limitation or any other ground, no application under Rule 13 is maintainable. As already stated earlier, the Division Bench in Munassar Bin v. Fatima Begum (supra) had no occasion to consider the effect of the Explanation to Rule 13. That apart, the whole thrust of the argument of the appellant in that case appears to be that although an application under Order 9, Rule 13 was dismissed, but the appeal filed against the said order was withdrawn, and as such, it is open to him to contend in the regular appeal that the lower Court was in error in setting him exparte. As he has filed an application seeking to set aside the exparte decree, and foiled, rightly in our view, the Division Bench took the view that the correctness of the grounds raised by him to set aside the ex'parte decree which was rejected cannot once again be raised and the same question reagitated.
19. As we have already held the grounds as well as the scope of the enquiry under both the provisions is different, the grounds and the scope of enquiry under Rule 13 cannot be imported in the appeal filed under Section 96, as such, we do not find any conflict in the views expressed by the later Division Bench in Ch. Prabhakar v. Ch. Sadcimndam (supra). This Division Bench held the view that mere filing of an application under Order 9, Rule 13 unsuccessfully cannot deprive the defendant from filing a regular appeal under Section 96 as the remedy by way of filing an application under Rule 13, and the appeal under Section 96 are two parallel remedies, we are also of the view that these two remedies are entirely independent and parallel, one cannot exclude the other except where there is a bar. We are in respectful agreement which the view taken by the Division Bench in Ch. Prabhakar v. Ch, Sadanandam (supra). At the same time we may also express that the controversy that arose before the earlier Division Bench in Munassar Bin v. Fatima Begum (supra) is entirely different, that too before the explanation to Rule 13 was added, apart from the fact that the controversy before the learned Judges was only whether the lower Court was in error in setting the defendant ex parts. In view of these distinguishing features, it is not possible for us to hold that there is any real conflict between these two decisions. The controversy in both the cases is clearly different, and therefore, both the Division Benches have taken correct views which are not conflicting with each other,
20. In Mohd. Iqbal v. K.Jagadeshwar Rao, 1989 (1) APLJ 345, this Court observed that simultaneous proceedings under Order 9, Rule 13 and under Section 96(2) of the Code can be pursued, but no order could be passed after orders are passed under either of the provisions. With respect, we are unable to agree with the broad principle of law in the light of the Order 9, Rule 13 as amended.
21. For all the above reasons, we hold that the appeal is maintainable under Section 96. Accordingly, the decree and judgment of the lower appellate Court are set aside and the appeal is remitted back to the same Court for fresh disposal according to law.
22. The Court fee paid shall be refunded to the appellant.