Andhra HC (Pre-Telangana)
Badimeni Pochaiah And Others vs Gatla Akkapalli And Others on 29 March, 1990
Equivalent citations: AIR1992AP42, AIR 1992 ANDHRA PRADESH 42, (1990) 2 CIVLJ 426, (1990) 2 CURCC 620, (1990) 1 APLJ 472, (1990) 2 ANDH LT 113
JUDGMENT
1. The interesting questions this second appeal gives rise to are:
(1) Whether an order made setting the defendants ex parte is a bar against the defendants to appear and participate in the later proceedings of the suit? And (2) Whether the circumstances that the defendants have not preferred any remedy against the order dismissing his application to set aside the ex parte order precludes him from preferring an appeal against the decree in the suit by operation of the principle of res judicata?
2. In a suit filed by the respondents in this second appeal the defendant-appellants were set ex parte on 5-3-1983 since neither the written statement for the filing of which it was adjourned to that date was filed nor the defendants or their counsel was present on that date when it was called. On 22-3-1983, the defendants having come to know of this order filed I. A. 72 of 1983 under Order 9, Rule 7, C.P.C., to set aside the said order. The application was pending for over a year and ultimately it was dismissed on 31-l-'84. On 31-l-84 the suit was adjourned to 14-2-84 for the evidence of the plaintiff-respondents. On 14-2-84 the 2nd plaintiff was examined as P.W. 1, Exs. A-l to A-4 were marked and a preliminary for redemption of the suit mortgage was passed by the trial Court.
3. The defendant-appellants did not file any appeal or revision against the order D/-31-l-'84 dismissing their application, I.A. 72/83, filed under Order 9, Rule 7, C.P.C. However, they filed an appeal against the ex parte decree passed on 14-2-'84. The lower appellate Court dismissed the appeal mainly on two grounds, viz., (i) the defendants did not file any appeal against the order D/ - 31 -1 -'84 dismissing their application filed to set aside the ex parte order and (ii)the defendants did not participate in the later proceedings of the suit by filing their written statement, cross-examining P.W. 1, etc., though the suit was pending for about one year later to the date on which they were set ex parte.
4. I shall first advert to the order of the trial Court whereby the defendants were set - ex parte under Order 9, Rule 6, C.P.C., and the consequences that flow out of that order. In spite of due service of summons if the defendants do not appear before the Court, the Court exercising powers under Order 9, Rule 6, C.P.C. would make an order for the suit being heard ex parte. What the provision says is that if the defendant despite due service of summons does not appear the Court may proceed in his absence. The provision, however, does not contemplate making of an order setting the defendant ex parte. The wording normally in use by the trial Courts 'defendant set ex parte' cannot be understood to be an order, as it is simply a statement of fact recorded during the course of the proceedings. Further, it is important to notice that no appeal is provided by the Civil P. C. against an order made under Order 9, Rule 7, C.P.C. The scope of a proceeding under Order 9, Rule 7, C.P.C. and its place in the scheme of the provisions of the Code relating to the trial of suits was the subject of consideration in Sangram Singh v. Election Tribunal, . Bose, J., pointing out that the manner in which the Court would proceed after passing through Order 9, Rule 6, C.P.C. would depend upon the purpose for which the suit stood adjourned, proceeded (at p. 431 of AIR):
"If it is for final hearing an ex parte decree can be passed, and if it is passed, then Order 9, Rule 13 comes into play and before the decree is set aside the Court is required to make 'an order to set it aside'. Contrast this with R. 7 which does not require the setting aside of what is commonly, though erroneously, known as "the ex parte order". No order is contemplated by the Code and therefore no order to set aside the order is contemplated by either."
Referring to the rejection of application made under Order 9, Rule 7, the learned Judge added :
"If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order 9, Rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in."
In Arjun Singh v. Mohindra Kumar, the Supreme Court held that an application under Order 9, Rule 7, C.P.C. is an illustration for purposes of reflection of an interlocutory order, which does not decide any issue arising in the suit nor would put an end to the litigation but is simply designed to ensure the just, smooth, orderly and expeditious disposal of the suit. In that context, the Supreme Court held that if the application under Order 9, Rule 7 is rejected that would only have the effect of refusing relegation of the party to an earlier stage. In other words, the refusal of the Court to permit the defendant to "set the clock back" does not forbid him to take part in the further proceedings of the suit. The only thing he is expected to do is making a request to the Court to permit him to participate in the further proceedings. From these two decisions of the Supreme Court, it follows that the order setting the defendant ex parte would only have the effect of denying him relegation to the position that he occupied at the commencement of the trial and that it does; not debar him from participating in the later proceedings of the suit. The answer to the first question, accordingly, is in the negative.
5. The second question framed supra takes in itself the application or otherwise of the principle of res judicata. The order passed in an application under Order 9, Rule 7, C.P.C., refusing the request to set the clock back so as to enable the defendant to be relegated to the position that he occupied at the commencement of trial would become final, if not appealed against. Whether such a finality would have any effect, more in the nature of res judicata, while deciding the later application under Order 9, Rule 13 to set aside the ex parte decree, is the question in essence. In Sankaralinga v. Ratnasabhapathi, (1898) ILR 21 Mad 324 the argument was that the later application under Sec. 108 (equivalent to Order 9, Rule 13) was incompetent since the earlier application under Sec. 101 (equivalent to Order 9, Rule 7) was rejected. Dealing with this contention, a Division Bench of the Madras High Court held:
"the contention at the first sight may appear to be reasonable, but having regard to the very wide words "in any case" used in S. 108 we are unable to hold that the defendant was not entitled to make an application under Section 108."
Similar argument was projected on the plea of res judicata in Arjun Singh v. Mohindra Kumar, . The Supreme Court held that a decision in an interlocutory proceeding of the type provided for by Order 9, Rule 7 is not of the kind which can operate as res judicata so as to bar the hearing on the merits of an application under Order 9, Rule 13, C.P.C. As a matter of fact, When contrasted with Order 9, Rule 9 or Order 9, R. 13, C.P.C., no appeal is provided against an action of the Court under Order 9, Rule 7 refusing to set back the clock . I herefore, the fact that the defendants have not preferred jany remedy against the order dismissing their application under Order 9, Rule 7, C.P.C. does not have the effect of precluding them from preferring an appeal againih the decree passed ex pa'fte in the suit by operation of the principle of res judicata. In view of this principle one of the grounds assigned by the lower appellate Court in dismissing the appeal, viz., that the defendant did not prefer any appeal against the order dated 31-1-H4 dismissing their application filed under Order 9, Rule 7, C.P.C., is not sustainable. The other ground that he did not participate in the later proceedings of the suit by filing their written statement, cross-examining P.W. 1, etc., being purely one of fact, does not call for interference in this second appeal. Even otherwise also it is not disputed that no written statement was filed and that P.W. 1 was .not cross-examined. It is a fact that the suit was pending for about one year subsequent to the defendants being set ex parte and in spite of that the defendants did not participate in the later suit proceedings. No doubt, the learned counsel submitted that the Court below did not permit the defendants to participate in the later proceedings of the suit. But, there is no iota of evidence to show that the appellant-defendants made any request before the trial Court to permit them to appear and participate in the later proceedings.
6. The learned counsel for the respondents on the question of admissibility of evidence recorded prior to the setting aside of the ex parte decree drew my attention to a Full Bench decision of this Court in Aziz Ahmed v. I. A. Patel, . This question has no relevance to the matter on hand and accordingly the decision is of no help to the respondents.
7. It is next contended by the learned counsel for the appellants that the suit document, viz. mortgage deed having been unregistered and unstamped, the suit is not maintainable. It needs to be borne in mind that the suit is filed for redemption of mortgage - alternatively for possession of the suit property on the basis of title. The 2nd plaintiff was examined as P.W. 1 and Exs. A-1 to A-4 were marked. Ex. A-3 is the certified copy of the Pahani patrik of 1952 and Ex. A-4-is the Pahani Patrik of 1958. These Pahanis show that the father of the plaintiff was the owner and possessor of the suit schedule land and the trial Court after considering these documents along with the evidence of P.W. 1 decreed the suit. Therefore, even accepting the contention of the learned counsel, the suit could be decreed for possession on the basis of title. That apart, the suit as per the grounds of appeal and the reply notice is resisted on the plea that the suit property is their ancestral property and they have their own title. In this view of the matter, the trial Court has right^ decreed the suit.
8. In the result, I see no merit in this second appeal and it is accordingly dismissed. No order as to costs.
9. Appeal dismissed.