ARJUN SINGH v. MOHINDRA KUMAR & ORS.
Citation: [1964] 5 S.C.R. 946; 1963 INSC 256
Court: Supreme Court of India
Bench: BHUVNESHWAR PRASAD SINHA , A.K. SARKAR, N. RAJAGOPALA AYYANGAR
Judgment date:
Case summary
1963 INSC 256. Supreme Court of India judgment dated 1963-12-13. ARJUN SINGH v. MOHINDRA KUMAR & ORS. Read the judgment and case details on LawSphereX.
Judgment text
946 SUPREME COURT REPORTS [1964] :1963 It is · clear therefore that the discretion to be - exercised by the military officer specified in s. 125 Ram Sarup of the Act as to the trial of accused by Court Martial v. or by an ordinary court, cannot be said to be unguided The Union of by any policy laid down by the Act or uncontrolled India and another by any other authority. Section 125 of the Act . ,, --. therefore cannot, even on merits, be said to infringe 'Raghub the learned Judge added: "It follows that, even though the ex parte order had been passed, the applicant could appear and take part in the case from the stage at (1) [1955] 2 S. C. R. p. J; - 5 S. C. R. SUPREME COURT REPORTS 953 which the ex parte order had been passed. The 1963 only thing he could not claim was to be relega- ted back to the old position as if he bad not Arju1J Singh absented himself on the date fixed. In these v. circumstances I think no interference is called Mohindra Kumar , , .
for with the order of the learned Civil Judge & Ors. refusing to set aside the ex parte order. It will be open to the applicant to present himself on Ayyangar 1 · the date to which the case now stands adjourned and request the learned Civil Judge to allow him to participate in the proceedings from that state. There is therefore no force in this applica- tion. It is rejected. " We are making this extract from the order for em- phasising the fact that it appears to have been the common case before the High Court that the applica- tion of the appellant in Suit 134 of 1956 was under 0. IX, r. 7 of the Civil Procedure Code and it was on that basis that the High Court approached the question and decided the revision petition.
Within 4 days of this order of the High Court and obviously acting in pursuance of the direction of the learned Judge the appellant made an applica- ~ tion to the Civil Judge drawing his attention to the observations we have quoted and prayed: "That your Honour be pleased to hear the ap- plication and take the evidence of the applicant. " Applications of the same type were filed in the other suit-1023 of 1951-also. He dismissed the applica- tions for the reason that since the appellant's prayer for being relegated to the original position had been rejected by him and also by the High Court in re- vision, it must be taken to have been finally settled that the appellant could not lead evidence because the final hearing of the two suits was over. The only proceeding in which the appellant could partici- pate was in hearing the judgment and therefore, he added, "the applicant is now entitled only to hear the judgment". On the same day-September 25, 1963 Arjun Singh v.
Mahindra Kumar & Ors. AyyangarJ. 954 SUPREME COURT REPORTS [1964] 1958-the judgment which had already been prepared was delivered. The judgment read: "Both the suits are decreed with costs ex parte with interest at 6 % etc. " To set aside this ex parte decree thus passed against him on September 25, 1958 the. defendant filed an application under 0. IX, r. 13. Obviously, the factual ground upon which the relief was sought, viz. , that there was reasonable or sufficient cause for the appellant's absence from Court on May 29, 1958 was the same as had been set out by him in the application which he had filed on May 31, 1958. This was opposed by the plaintiff who, besides repeat- ing the challenge regarding the truth of the illness, raised three legal objections of a preliminary nature. Some of these- have been upheld by the Civil Judge and the High Court but each one of them was sought to be supported before us by Mr. Pathak for the respondents.
They were: (1) that the finding recorded in the earlier application filed on May 31, 1958 in suit 134 of 1956 that there was not sufficient cause for non-appearance on May 29, 1958 operated as res judicata in the petition filed under 0. IX, r. 13 and was a bar to the re-inquiry of the same question on the merits; (2) the finding in the application to set aside the dismissal for default of suit 20 of 1953 which had become final operated was a bar to the trial of the same question in the application under 0. IX, r. 13 in suit 134 of 1956; and (3) that the decree in suit 134 of 1956 was not in reality an ex parte decree but was a decree on the merits within 0. XVII, r. 3, Civil Procedure Code and hence the remedy of the appellant was only by way of an appeal against the decree and he could not come in by way of an application under 0. IX, r. 13. The learned Civil Judge upheld the first preliminary ground of objection and dismissed the application.
The appellant there- upon filed an appeal to the High Court and the learned Judges likewise held that any inquiry into the question whether the appellant had sufficient cause for non- appearance on May 29, 1958 was barred by res judicata , . - - '· - •. 5 S. C. R. SUPREME COURT REPORTS 955 by reason of the decision of the same matter in the 1963 earlier proceeding under 0. IX, r. 7. It is from this judgment of the High Court that the present appeal Arjun Singh has been brought by special leave under Art. 136 of v. the Constitution. Mahindra Kumar Before proceeding to deal with the arguments & Ors. addressed to us by Mr. Setalvad-learned counsel for the appellant, it would be convenient to mention Ayyangar J. a point, not seriously pressed before us, but which at earlier stages was thought to have considerable significance for the decision of this question viz. , the difference between the words "good cause" for non-appearance in 0. IX, r.
7 and "sufficient cause" for the same purpose in 0. IX, r. 13 as pointing to different criteria of "goodness" or "sufficiency" for succeeding in the two proceedings, and as therefore furnishing a ground for the inapplicability of the rule of res judicata. As this ground was not seriously mentioned before us, we need not examine it in any detail, but we might observe that we do not see any material difference between the facts to be established for satisfying the two tests of "good cause" and "sufficient cause". We are unable to conceive of a "good cause" which is not "sufficient" as affording an explanation for non-appearance, nor conversely of a "sufficient cause" which is not a good one and we would add that either of these is not different from "good and sufficient cause" which is used in this context in other statutes.
If, on the other hand, there is any difference between the two it can only be that the requirement of a "good cause" is com- plied with on a lesser degree of proof than that of "sufficient cause" and if so, this cannot help the appellant, since assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the court finds in the first proceeding, the lighter burden not discharged, it must afortiori bar the consideration of the same matter in the later, where the standard of proof of that matter is, if any- thing, higher. As it is the first of the preliminary objections which we have set out earlier that has formed the 956 SUPREME COURT REPORTS [1964] 1963 · basis of the decision against the appellant, both by the learned Civil Judge as well as by the High Court, Arjun Singh we shall first take that up for consideration. The v. courts below have approached this question in this MohindraKumarform. Order IX, r. 7 reads : & Ors. "7.
Where the Court has adjourned the hear- Ayyangar J. ing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs, or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. " If an application is made ·under this provision and the Court considers that there is not any good cause for the previous non-appearance and proceeds further with the suit and ultimately it results in an ex parte decree, can the Court in dealing with the application to set aside the ex parte decree under 0. IX, r. 13 reconsider the question as to whether the defendant had a sufficient cause for non-appearance on the day in regard to which the application under 0. IX, r. 7 had been filed? That the question of fact which arose in the two proceedings was identical would not be in doubt.
Of course, they were not in successive suits so as to make the provisions of s. 11 of the Civil Procedure Code applicable in terms. That the scope of the principle of res judicata is not confined to what is contained in s. 11 but is of more general application is also not in dispute. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. In this connection we were referred to what this Court said in Satyadhyan Ghosal v. Sm. Deorajin Debi - 5 S. C. R. SUPREME COURT REPORTS 973 that issue depended was similar and possibly identical. 1963 This is a further reason why we are unable to accept the submission of learned counsel. Arjun Singh v. The last of the points that was urged by Mr. Mohindra Kumar Pathak was that the decree that was actually passed & Ors. in suit 134 of 1956 was not in reality an ex parte decree but one on the merits. It was urged that the Ayyangar J.
proceeding on May 29, 19 58 satisfied the conditions of 0. XVII, r. 3 and not 0. XVII, r. 2. There are several reasons why this submission is entirely without substance. In the first place, during the entire pro- ceeding right up to the hearing of the present applica- tion which was made under 0. IX, r. 13 the Court as well as both the parties proceeded on the basis that the decree was passed ex parte. The order sheet on May 29, 1958 we have extracted earlier contained a direction by the Court that the case will proceed ex parte for the reason that counsel for the defendant reported no instructions. And it must be noticed that by that date the entire hearing was over. The application that was made to set aside this order to proceed ex parte was filed on the basis that the previous hearing was ex parte and was contested by the respon- dent on the same basis. The order of the High Court in revision on September 4, 1958 proceeds on the same basis.
When finally judgment was pronounced by the Civil Judge in suit 134 of 1956 it expressly stated that it was a decree ex parte. In the face of these circumstances there should be overwhelming evidence of the proceedings not being ex parte if the respondent is to succeed in his present plea. In order that the decree passed was one under 0. XVII, r. ·3 which is the submission of Mr. Pathak the opening words of that rule must be satisfied. That rule reads: "Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. " 974 SUPREME COURT REPORTS [1964] 1963 In regard to this the Civil Judge stated: Arjun Singh v. Mahindra Kumar & Ors. Ayyangar J. "The ground on which this objection is based is that 29. 5.
58 was the date adjourned at the instance of the defendant-applicant. I do not think, that this ground has any force. It appears from the record that on 28. 5. 58 the cases were adjourned to 29. 5. 58 on a joint application of · the parties to the effect that a compromise would be filed. It was not, therefore, an adjourn- ment sought by the defendant alone; moreover, that application was made by him in his own suit No. 20 of 1953 and the other two suits had also naturally to be adjourned as all the three of them were consolidated. The adjournment of those two suits, therefore, cannot be said to be at the instance of the defendant. " Learned counsel was unable to point any flaw in the facts here stated. It would, therefore, follow that the terms of 0. XVII, r. 3 were not attracted at all and that suit 134 of 1956 was decreed not on merits but really ex parte as had been expressly stated by the learned Civil Judge when he passed that decree.
In the result, the appeal is allowed and the applica- tion filed by the appellant under 0. IX, r. 13 for setting aside the ex parte decree passed in suit 134 of 1956 is remanded to the trial Judge for disposal on the merits in accordance with law. The appellant will be entitled to his costs throughout. The cost incurred after this remand will be provided for by the Courts below. Appeal allowed.
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