MAHESH YADAV & ANR. v. RAJESHWAR SINGH & ORS

Citation: [2008] 17 S.C.R. 726

Court: Supreme Court of India

Bench: S.B. SINHA, CYRIAC JOSEPH

Case summary

MAHESH YADAV & ANR. v. RAJESHWAR SINGH & ORS.pdf

Judgment text

[2008] 17 S. C. R. 726 """' MAHESH YADAV & ANR. v. 'f RAJESHWAR SINGH & ORS. (Civil Appeal No. 7316 of 2008) DECEMBER 16, 2008 '• [S. B. SINHA AND CYRIAC JOSEPH, JJ. ] CODE OF CIVIL PROCEDURE, 1908: I ~ Or. 9, r. 13, proviso - Setting aside of decree ex-parte against some of the defendants - Trial court setting aside ex parte decree- High Court reversing order of trial court - Held: Proviso to r. 13 postulates that when an ex-parte decree has been passed a. gainst some of the defendants and it is necessary to set aside the :entire decree, they may file an application to set aside ex-parte decree and court is not powerless in this regard - High Court was not correct in holding that because a joint written statement was filed, an -~.

application for ex-parte decree was not maintainable - Order ofHigh Court set aside - However, since the order oftrial court is an unreasoned one and evidence led by defendantapplicants was not analysed for arriving at a finding as to whether a case for setting aside ex-parte decree has been made out or not, in exercise ofjurisdiction under Article 142 of the Constitution, order of trial court is also set aside - Matter remitted to trial court for consideration afresh on merits - Constitution of India, 1950 - Article 142. Or. 9 r. 13 - Setting aside of ex parte decree - Reasons )-to be recorded - Held: An order setting aside an ex parte decree, being a judicial order should be supported by reasons - Evidence addu -- "If the contention of the defendants 1 and 6 is to the effect that the decree was obtained by fraud and collusion, then this matter need be pleaded by facts and circumstances so as to take a declaration under Section 44 of the Evidence Act, 1872. This step was not taken.

Suffice it to ... •' ) . · say that if there be a fraud it is a criminal act and there i_s no limitation if such action is to be taken by a party to the , suit. Thus, at present the order dated 20 February, 2003 in [S. 8. SINHA, J. ] Miscellaneous Case No. 19 of 1998: Mahesh Yadav & Ors. V. Rajeshwar Singh &Ors. Permitting setting aside """. I an ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure is set aside. " ' 7. Mr. Gautam Prasad, learned counsel appearing on. ... , behalf of the appellant, would submit that the High Court failed 8 to take into consideration that only because a joint written statement was filed, the same was binding upon the appellants although some of them had been won over by the plaintiff. \. ; 8. Mr. H. L. Agrawal, learned senior counsel appearing on behalf of the respondents, however, supported· the judgment. 9. Order IX Rule 13 of the Code of Civil Procedure reads as under: "13. Setting aside decree ex parte against defendants.

- 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 a 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 ori any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree. " 10. Indisputably, two of the defendants had entered into compromise with the plaintiff. They have accepted the title of the plaintiff. The contents of the written statement filed by the appellants had not been noticed by the High Court.. The High Court furthermore failed to consider that according to the appellants herein, talks of compromise started by and between the defendant Nos. 1 and 6 and the plaintiff.

They cross-examined the witnesses of the plaintiff but did not adduce any evidence. It was on the aforementioned premise alone, the plaintiff was found to be in possession of the suit land and a decree was passed. 0 11. There is nothing on record to show that the appellants herein were being represented by the same learned advocate. If they were represented by different advocates, it is not known as to whether the order of transfer of the case was brought to the notice of the learned advocate for the appellants. The High Court, in our opinion, therefore may not be correct in holding that only because a joint written statement was filed, an application for ex parte decree was not maintainable. In fact, the same was held to be. maintainable by the learned Civil Judge by an order dated 26. 7. 2000. 12.

The proviso appended to Order IX Rule 13 of the Code of Civil Procedure postulates that when an ex parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the Court is not powerless to do so. If. an application for setting aside the ex parte decree was maintainable at the instance of the appellants, w. e fail to understand as to why a separate suit was required to be filed. When an ex parte decree is passed, the defendant may have more than one remedies. He may file a suit contending that the decree was obtained fraudulently. He may file an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. He may prefer an appeal from the ex parte judgment and decree. In given case, he may also file a review application. 13. In Bhanu Kumar Jain v. Archana Kumar & Anr. [(2005) 1 SCC 787) , this Court held : "26.

When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 0 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true. " It was, however, observed : "28.

It is true that although there may not be a statutory bar I; to avail two remedies simultaneously and an appeal as also an application for setting aside the ex parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions. " 14. The judgment of the High Court, therefore, in our opinion is not sustainable. While, however, saying so, we must express our dissatisfaction in the manner in which the learned Civil' Judge has passed the order impugned before the High Court. The said order is an unreasoned one. The evidence adduced on behalf of the appellants were not analysed for arriving at finding as to whether a case for setting aside an ex parte 734 SUPRE~AE COURT REPORTS [2008] 17 S. C. R. decree has been made out by the appellants or not.

The matter had not been considered as is required in terms of Order IX Rule 13 of the Code of Civil Procedure. An order setting aside the e~ parte decree being a judicial order should have been supported by reasons. The learned Judge could not have allowed the said application without following the legal principles on the basis whereof such an order could be passed. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India, while setting aside the order passed by the High Court also set aside the order passed by the learned Civil Judge. The Civil Judge should consider the matter afresh on merit and pass a reasoned order. . ' 15. Appeal is allowed with the aforementioned directions. However, in the facts of and circumstances of this case, parties shall bear their own costs. R. P. Appeal allowed.