Kerala High Court
A.K.P. Haridas vs V.A. Madhavi Amma And Ors. on 30 July, 1987
Equivalent citations: AIR1988KER304, AIR 1988 KERALA 304, (1987) 2 KER LT 701
ORDER S. Padmanabhan, J.
1. The short but interesting and informative question for consideration in this civil revision petition filed by the plaintiff is whether an appeal alone will lie or an application under Order 9, Rule 13 is also maintainable for getting a decree passed under Order 8, Rule 10, Code of Civil Procedure set aside and the suit restored to file.
2. The suit was filed by the revision petitioner for injunction against the respondents. There was an application for temporary injunction in which an order of interim injunction was issued and notice ordered. Defendants entered appearance and filed objection. They also filed an application . for injunction against the plaintiff and produced several documents. Both the applications were disposed of on the merits after elaborate arguments by a detailed order on 7-6-1986. The agreements produced by the plaintiff were challenged as forged documents. Thereafter the case was adjourned for written statement to 30-10-1986. On that day written statement was not filed. Therefore the suit was decreed under Order 8, Rule 10, without declaring the defendants ex parte, on the sole ground that written statement was not filed. Plaintiff was not examined and no affidavit was also filed by him to prove his contentions. No document was marked. Neither the contentions nor evidence were referred to in the judgment. Suit was simply decreed for the reason that no written statement was filed without even stating what the plaint claim is. Defendants filed an application under Order 9, Rule 13 the next day itself along with written statement. They said that the written statement signed by the defendants and their Advocate was entrusted to a brother Advocate for being filed in court but somehow he omitted to file it. The Munsiff allowed the application and the revision is against that order.
3. I feel that the plaintiff ought not have come in revision against the order. His attempt seems to be to cling on to the ex parte decree, probably being apprehensive of the fact that after contest on the merits he may not be able 10 succeed. Otherwise in fairness he ought to have submitted to the order and faced a contest, thereby affording the defendants, who keenly fought the in junction application against him, an opportunity to have the case decided on the merits. This is evidently a case in which the court itself should not have resorted to Order 8. Rule 10.
4. The first contention was that the decree is an appealable one and hence an application under Order 9, Rule 13 will not lie. That is not a sound proposition of law. These are not remedies which are inconsistent or mutually exclusive. The mere fact that there is right of appeal against the ex parte decree is no reason to hold that an application under Order 9, Rule 13 is not maintainable. Order 8, Rule 10 as it stood before the amendment of 1976 did not contain a provision that on pronouncement of the judgment a decree shall be drawn up. The adjudication was therefore taken out of the definition of decree in Section 2(2) of the Code and it was made appealable as an order under Order 43 Rule (b). After the amendment of 1976 when the provision for drawing up a decree was inserted in Order 8, Rule 10, Order 43 Rule (b) was deleted and the decree under Order 8 Rule 10 became no longer appealable as an order under Order 43 Rule (b). It became an appealable decree as held in C.D. hoop v. Trichur Municipality 1984 Ker LJ 280. The contention is that for this reason it ceased to be one against which an application under Order 9 Rule 13 is maintainable. That contention is on the basis of a misapprehension that remedy under Order 9 Rule 13 and that by way of appeal are mutually exclusive. In fact they are not. There is no bar in resorting to both the remedies simultaneously or any of them alone. Only thing is that when both remedies are attempted and one succeeds the other becomes infructuous since the object and effect of both is the same. Availability of the remedy by way of appeal is no bar to an application under Order 9 Rule 13 if such a remedy is also available to the party. For example when the defendant is set ex parte under Order 9 Rule 6 and an ex parte decree passed, though that decree is appealable, an application under Order 9 Rule 13 also will lie. The real question for consideration is only whether an application under Order 9 Rule 13 will lie.
5. The opening words of Order 9 Rule 3 are "in any case in which a decree is passed ex parte against a defendant." Therefore the real question for the applicability of the rule is whether the decree is ex parte or one on the merits whatever be the provision under which it was resorted to. If it is ex pane the remedy under Order 9 Rule 13 is there irrespective of the simultaneous or alternate remedy by way of appeal. Whether the decree is ex parte or one on the merits is a question of fact depending upon the facts of each case. A decree which is for all external appearance one in the merits may in fact only be an ex parte one. As held in Chari Vijajan v. Achuthan Vasu 1973 Ker LT 849 the courts owe at duty to weigh the merits of the case and consider whether there is a case for granting a decree even when there is no contest by non appearance of the defendants. Attention to pleadings and evidence even in cases where the defendants do not appear is not only a healthy trend but also a duly cast on the court to decide whether the plaintiff has a good case to be decreed. Even in cases where the defendant remains ex parte. decreeing the suit merely on that ground without looking into the pleadings and evidence may not be conducive to justice. Whether the claim is contested or not is not the real question. The question is whether the plaintiff presented a case entitling him to get a decree. For that purpose even in cases where the defendants remain ex pane the court should insist at least on formal proof from the plaintiff as held in Kochuvetue v. Varkoy 1968 Ker LT 462 and the judge is bound to look into pleadings and evidence.
6. Even in contested cases there could be ex parte decrees as provided in Order 17 Rule 2 and 3 (b) on account of absence of parties and there could also be a decree on the merits as provided in Order 17 Rule 3(a). The decision on the Merits in such cases is a matter of discretion of the court as laid down in Pokker Haji v. Muhammad Barami 1971 Ker LT 438. Whether in decreeing the suit the judge was conscious of that discretion to proceed either under Rule 2 or Rule 3 and decided to proceed under Rule 3 to decree the case on the merits is a matter to be seen from the judgment and other circumstances. In such cases also if the disposal is under Rule 2 a petition filed under Order 9 Rule 13 is well-nigh maintainable in spite of the fact that an appeal also will He, In such cases even though the disposal in form purports to be one on merits, if it is found to be in substance one for default a petition under Order 9 Rule 13 is maintainable as held in Varghese v. Kesavan 1960 Ker LT 548, granting of such an application is proper and legal in such circumstances and for that purpose what the court has to look into is not the form of the judgment but its substance. In such cases bar for an application under Section 9 Rule 13 is only if the decree is one on the merits under Order 17 Rule 3 in which case the remedy is only by way of appeal. As held in Moideenkutty v. Gopalan 1980 Ker LT 468 an application under Order 9 Rule 13 is not barred in such cases simply because disposal purports to be on the merits but actually is one for default. A disposal under Order 17 Rule 3(b) is disposal under Order 17 Rule 2. If the court did not consider the contentions on the pleadings or the issues raised or the evidence adduced the disposal is not on the merits and Peelikunju v. Sreedharan (1985 Ker LT (SN) No. 87 Page 55(1)) is also authority for the position that in such cases a petition under Order 9 Rule 13 will lie. In all these cases the remedy by way of appeal is also there. The learned counsel for the revision petitioner misunderstood the legal position and thought that availability of the right of appeal will operate as a bar to an application under Order 9 Rule 13. That is a fundamental mistake.
7. As Order 8 Rule 10 stood before the amendment of 1976 it was considered to apply only in cases where written statement is not filed under Rule 9 as ordered by court. But the amendment provided that it is applicable both to Rules 1 and 9. There cannot be any dispute that the discretion is with the court to pronounce the judgment against the defendant who did not file the written statement even though it can pass such other orders also as it thinks fit. In this case the discretion was exercised to pronounce the judgment against the defendants. In such a situation the only question relevant for the applicability of Order 9 Rule 13 is whether the decree is ex parte or one on the merits.
8. Over and above Order 8 Rule 10 and Order 17 Rule 2, there can be instances under Order 9 where there are ex parte decrees and dismissal of the suit for defaults. As 1 have earlier stated the opening words of Order 9 Rule 13 are "in any case in which a decree is passed ex parte". These wordings are wide enough to cover all cases of ex parte decrees no matter for what reason such ex parte decree had been passed. What is required is only that the decree should be an ex parte one in contradistinction to one on the merits. For that purpose it is not a condition precedent that the decree should be after declaring the defendant ex parte under Rule 6 of Order 9. For the applicability of Order 8 Rule 10 the defendant need not be set ex paite. The rule does not provide so, In this case though the defendants were not declared ex parte the decree was evidently one for default in not filing written statement without considering the claim on the merits. The plaim allegations or the evidence were not even looked into and not even an affidavit was filed by the plaintiff. The court did not apply its mind at all and mechanically passed a decree under Order 8 Rule 10. The judgment does not even conform to the requirements of Section 2(9) of the Code which defined judgment as the statement given by the Judge of the grounds of a decree or order. No grounds for allowing the claim are stated in the judgment. Therefore the decree in this case is even inferior than an ex parte decree.
9. The adjudication is one sided and the decision was rendered only for default. It is the substance of the courts action and not the label appended to it that counts. Even though Order 8 Rule 10 authorises the court to pronounce a judgment against the defaulting defendant who fails to submit the written statement, there is nothing to indicate, that the need to write a speaking and reasoned judgment is dispensed with. There cannot be any dispute that decree is one passed ex parte and not on the merits. Except that the decree should be ex parte there is no other restriction in Order 9 Rule 13 for its applicability. The wordings of Order 8 Rule 10 or the changes brought about in it by the amendment of 1976 do not give any indication that a decree passed there-under cannot be ex parte. If it is ex parte, as it actually is in this case, the remedy by way of Order 9 Rule 13 is undoubtedly available. For the applicability of Rule 13 the decision need not necessarily be under Order 9 itself. It can be under Order 8 Rule 10 or Order 17 Rule 2 also. (See N. Jayacaman v. Glaxo Laboratories India Ltd. (AIR 1981 Madras 258).
The revision petition fails and it is hereby dismissed with costs.