REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.     7316     OF 2008 (Arising out of SLP (C) No.14217 of 2004)

Mahesh Yadav & Anr. … Appellants

Versus

Rajeshwar Singh & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Plaintiff in a suit for declaration of title and possession is before us

aggrieved by and dissatisfied with the judgment and order dated 4.3.2004

passed the High Court of Judicature at Patna in Civil Revision No.497 of

2003 whereby and whereunder an order dated 20.2.2003 passed by Munsif

Biharshrif, Nalanda in Miscellaneous Case No.19 of 1998 setting aside an

ex parte decree, was reversed.

3. Plaintiff  filed the aforementioned suit  as  Secretary of  Magadh  Raj

Jarsandh Akhara, Rajgir.  In the said suit six defendants were impleaded as

parties.  It was, inter alia, contended that although the plaintiff had been in

uninterrupted possession of Plot No.5180, the defendants attempted to take

forcible possession of land measuring 9 decimals.   

In the said suit, the defendants filed a joint written statement.  During

the pendecy of the said suit,  however, the defendants No.2 and 5 entered

into  compromise  with  the  plaintiff.   A compromise  petition  filed  by the

parties  thereto  was  accepted.   Indisputably,  talks  for  compromise  were

going on by and between the plaintiff and defendant Nos.1 and 6; however,

no  compromise  petition  was  filed  in  that  behalf.   Although  witnesses

examined  on  behalf  of  the  plaintiff  were  cross-examined  on  behalf  of

defendant Nos.1 and 6, they did not adduce any evidence.   

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The learned Munsif, Biharsharif decreed the suit, stating :

“After contest this suit is decreed in favour of the plaintiff  partly  on  the  basis  of  the  compromise petition and partly after contest.  If the defendants have  effected  any  possession  over  the  disputed land  during  pendency  of  the  present  suit,  the plaintiff  will  have full  right  to effect eviction of the defendants with the assistance of the court on payment of proper cost.  No order regarding any cost is being given in the suit.”

4. Appellants herein, having come to know of the said ex parte decree

passed against them, filed an application in terms of Order IX Rule 13 of the

Code of Civil Procedure.  They examined a large number of witnesses in

support of their case.   

5. We may notice  that  plaintiff’s  evidence  was  closed  on  18.5.1995.

The learned Judge thereafter was transferred.  The learned District  Judge

transferred the said case by an administrative order dated 20.2.1997.  There

is nothing on record to show that the counsel appearing on behalf of the

other defendants were the advocate of the appellants herein also.  By reason

of an order dated 20.2.2003, the learned Judge while considering the case of

the appellants that they were kept in dark about the development of the case

due to connivance of the respondents herein as they had been informed that

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the  compromise  had  been  entered  into  by  some  of  the  parties  and  the

Presiding Officer has been transferred, noticed :

“Four witnesses have been examined on behalf of the applicant  and all  of them supported the facts mentioned  in  the  miscellaneous  application. Witness No.2 Chinta Devi is herself opposite party No.2 and has clearly stated in examination in chief that  she  is  prepared  to  contest  the  suit  and therefore, the suit should be revived, on behalf of the opposite  party  one  witness  was  examined in support of the rejoinder.  Witness No.1 is himself opposite party No.1.  In the examination in chief he  has  stated  that  the  applicant  has  filed  the miscellaneous  application  with  the  intention  of causing harassment to him because the applicant had  information  about  the  suit.   Therefore,  the application should be dismissed.”

It was directed :

“After  hearing  both  parties  and  after  perusal  of records,  I  find  that  the  applicant  has  furnished satisfactory  reasons  to  show  that  he  had  no information about developments in Suit No.67/90 and his application for revival is fit to be accepted but will cost.

Therefore  the  miscellaneous  application  is accepted subject to cost of Rs.200/- under Order 9 Rule 13.  And the ex parte decree in original suit No.67/90 is rescinded.”

6. A revision application was filed thereagainst.   

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The High Court passed the impugned judgment only on the premise

that as all the defendants had filed a joint written statement, there was no

occasion for the court to set aside the ex parte decree stating that if a fraud

had been practised upon the court, an appropriate proceeding should have

been initiated therefor.  It was held :

“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  is  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  Miscellaneous  Case  No.19  of  1998:  Mahesh Yadav  &  Ors.  V.  Rajeshwar  Singh  &  Ors. Permitting setting aside an ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure is set aside.”

7. Mr.  Goutam  Prasad,  learned  counsel  appearing  on  behalf  of  the

appellant, would submit that the High Court failed 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.   

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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 on 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.”

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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.

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.   

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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, we 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 a 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

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to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 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 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  a

finding as to whether a case for setting aside an ex parte 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

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order setting aside the ex 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.

..………………………J.   [S.B. Sinha]

..………………………J.   [Cyriac Joseph]

New Delhi;

December 16, 2008

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