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PETITIONER: OM PRAKASH

       Vs.

RESPONDENT: AMARJIT SINGH & ANR.

DATE OF JUDGMENT10/08/1988

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATACHALLIAH, M.N. (J)

CITATION:  1988 SCR  Supl. (2) 362  1988 SCC  Supl.  780  JT 1988 (3)   555        1988 SCALE  (2)567

ACT:     Civil Procedure Code, 1908: Section 105(2)-Order 9, Rule 7- Application for setting aside order placing defendant  ex parte  dismissed  by trial court as unsigned-High  Court  in revision  remitting application for disposal after  allowing defendant  to  affix signature re_Application  dismissed  by trial  court  as time barred-Suit for  specific  performance decreed on basis of witnesses examined in ex  parte-District Court  affirming  that  application  war  time  barred,  but remanding suit for fresh disposal-Remand order-Not  appealed against-Assuming  finality-  Whether defendant  entitled  to adduce  fresh  evidence  and recall  witnesses  examined  ex parte, on remand. %     Specific  Relief Act, 1963: Sections 20 and 34-Suit  for specific performance-Grant of relief-Discretionary-Equitable and   discretionary  jurisdiction  of  Court-When   can   be exercised.

HEADNOTE:     In  a suit for specific enforcement of an  agreement  to sell  the  suit  property filed by  respondent  No.  1,  the appellant was placed ex parte for default of non-appearance, after he entered appearance and filed his written statement. Thereafter, the appellant’s application under Order IX, r. 7 of  C.P.C. for setting aside the above order  was  dismissed for  default.  After respondent No. ˜ examined  two  of  his witnesses,  appellant  filed  an  unsigned  application  for setting aside the aforesaid orders. This was also  dismissed by  the trial court because it was unsigned. The High  Court in  revision, allowed the appellant’s prayer,  and  remitted the  application  for  fresh disposal,  after  affording  an opportunity  to  the  appellant  to  sign  the  application. Thereafter the appellant signed the application, but it  was again  rejected  by  the trial court,  as  barred  by  time, reckoning the date of affixture of signature as the date  of its  filing,  and  the  suit was decreed  on  the  basis  of evidence of two witness examined for the plaintiff when  the appellant was ex parte.     On  appeal,  District  Judge concurred  with  the  trial court’s  view  that the application for  setting  aside  the dismissal  order and the ex parte order was barred by  time,

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but set aside the decree holding that the decree was not  in accordance  with  law  and not executable for  a  number  of                                                   PG NO 362                                                   PG NO 363 reasons and remanded the suit to the trial court for a fresh disposal,  after  giving an opportunity of hearing  to  both parties.     On  remand, the trial court dismissed the suit. It  held that  the remand order having been upheld, the dismissal  of the  appellant’s  application for setting  aside  the  order placing  the appellant ex parte, must be understood to  have excluded  from the scope of the proceedings on  remand,  any entitlement  of appellant to recall the  witnesses  examined when  the  appellant was ex parte. The  District  Judge,  in appeal,  confirmed  this decision. The High  Court  rejected appellant’s second appeal in limine.     In the appeal filed before this court, on behalf of  the appellant, it was contended that the trial court should have tried  the suit de-novo by affording an opportunity to  both the parties to adduce evidence afresh, and that the scope of the  remand  also  entitled the appellant to  have  the  two witnesses  examined earlier for the plaintiff  recalled  for cross-examination.     Allowing the appeal,     HELD: 1.1 An order, which is appealable under Order  43, Civil Procedure Code, if not appealed against, becomes final and  its correctness is no more open to examination in  view of s. 105(2) of the Code. [368C] :     Nainsingh v. Koonwarjee, [1971] 1 SCR 207 relied on.     In  the  instant case, the order of remand,  not  having been appealed against by either side, had assumed  finality. Hence the jurisdiction of the trial court was  circumscribed and fettered by the order of remand. [368E]     1.2  It  is true that it would not be  necessary  for  a party  to  get rid of an order placing him ex parte  if  the party  wishes  to  participate in  the  proceedings  at  any particular stage onwards, provided that he does not seek  to be  relegated to the position he would have occupied  if  he had appeared at the earlier hearing or hearings and does not seek  to set back: the hands of the clock. lt means that  he must  accept  all  that has gone before and  be  content  to proceed from the stage at which he has come in. [368F]     Sangram  Singh v. Election Tribunal, Kotah,  Bhurey  Lal Baya,  [1955] 2 SCR 1 and Arjun Singh v Mohindra  Kumar  and Ors.,[1964]5 SCR 946 referred to.                                                   PG NO 364     In the present case, however, the appellant did seek  to set  the hands of the clock backwards and wanted  to  recall the  witnesses for cross-examination. This was not  possible having  regard  to  the finality the  order  of  remand  had assumed. [368H]     2. In a suit for specific performance of an agreement to sell,  grant  of relief is discretionary.  The  Court  after consideration   of  all  relevant  circumstances   must   be persuaded  to  exercise  its  equitable  and   discretionary jurisdiction   in  favour  of  specific   enforcement.   The jurisdiction  is subject to all the conditions to which  all discretionary jurisdictions are subject. [369A]     In the instant case, there are certain personal bars  to relief. Respondent No. 1, who was the plaintiff in the suit, did  not  enter  the box and tender  evidence.  The  subject matter  of the suit is a small piece of property of  68  sq. yds.  and  is  said  to be the only  worldly  goods  of  the appellant. Therefore having regard to all the  circumstances

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of the case and in order that complete justice is done,  the decrees  of  the  courts below are set aside  and  the  suit remitted for a fresh disposal after affording an opportunity to both parties to adduce fresh evidence on their respective sides. Appellant will also be entitled to have the witnesses examined  in  his absence recalled  for  cross  examination. [369B-D]

JUDGMENT:    CIVlL APPELLATE_ATE JURlSDICTlON: Civil Appeal No.2582 of 1988.     From the Judgment and Order dated August 6.  1987 of the Punjab  and Haryana High Court in Regular Second Appeal  No. 2569 of 1987.     A. K. Nag and Ms. Madhu Tewatia for the Appellant.     K.K. Mohan and Ms. Amita Gupta for the Respondents.     The following Order of the Court was delivered:                           ORDER     Special Leave granted. Arguments heard.     This  appeal  by  the  unsuccessful  defendant  who  has suffered  decree of specific performance of an agreement  to sell relating to a piece of immovable property, is  directed against  the  order  dated 6.8. 1987 of the  High  Court  of                                                   PG NO 365 Punjab  and Haryana in RSA No. 2569 of 1987  dismissings  in limine, appellant’s second appeal.     2.  Amarjit Singh, Respondent 1, brought the Civil  Suit No.  3397/82/259.80  in the Court of Sub Judge,  Ist  Class, Patiala  for  specific enforcement of an agreement  to  sell dated 14.4.1979 said to have been executed in his favour  by the appellant respecting the suit property. After service of summons, appellant entered appearance and filed his  written statement.  But  on  7.12.1981 he was  placed  ex-parte  for "default   of   non-appearance".  On   4.2.1982,   plaintiff (respondent 1) examined two witnesses on his side. But later the same day appellant appears to have filed an  application presumably  under  Order IX, r. 7 CPC to  have  the  earlier order dated 7. 12. 1981 placing him ex parte set aside. This application was dismissed for default on 25.9.1982. On 30.9. 1982  appellant  filed an unsigned application  for  setting aside that order of dismissal dated 25.9. 1982 and also  for setting  aside  the order dated 7. 12. 1981 placing  him  ex parte. This application was dismissed by the trial court  on 25.2. 1983 on the ground that it had not been signed by  the appellant.  However,  the  High Court  in  revision  allowed appellant’s prayer and remitted that application for a fresh disposal,  after affording to the appellant the  opportunity to sign that application. Pursuant thereto, that application was  signed by the appellant on 12. 5. 1983 ; but  on  16.9. 1983 the application was again dismissed by the trial  court on  the ground that it was barred by time. The  trial  court took  the view that the date if affixture of  the  signature was  to  be  reckoned  as  the  date  of  its  filing   and, accordingly found it cut of time.     On  the  same day, the trial court on the basis  of  the evidence   the  two  witnesses  examined  earlier  for   the plaintiff, decreed the suit.     3. Against this decree, appellant filed an appeal in the Court  of  Additional District Judge  Patiala.  The  learned District  Judge  appears to have concurred  with  the  trial court’s  view  that  the application dated  30.9.  1982  was barred by time. learned District judge held :     ".....  For  all these reasons I agree  with  the  lower

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court  that  application  dated 30.9.  1982  was  barred  by limitation and deserves dismissal on this ground . . . . . .     The reason for holding that the application was statutu- barred was that:     "Application dated 30.9. 1982 was admittedly not  signed                                                   PG NO 366 when  it  was  presented in court on that day  but  it   was subsequently signed by defendant No.  1 on 12.5. 1983. There was  no application in the eyes of law on 30.9. 1982  as  it was  not duly signed by defendant No. 2. It became a  proper application  only  on  12.5.  1983 when  it  was  signed  by defendant No.  1 and so it must be deemed to have been filed on that date"     The  understanding by both the courts of the  directions of  the  High Court in the revision  proceedings  permitting appellant to sign the application may not be a correct  one. But  that  order was not assailed by the  appellant  in  the appropriate proceedings. However, the learned District Judge set  aside the decree dated  16.9.1985 on some other  ground and  remitted  the  suit  to the trial  court  for  a  fresh disposal.  The  operative part of the judgment  dated  14.2. 1986 of the learned District Judge is in the following terms     ".  ... In the result I accept the appeal set aside  the judgment and decree passed by the lower court and remand the case  to  the lower court i.e. court of  Shri  J.R.  Singla, which is successor court of the court of Shri G.K. Rai  with the direction to re-admit the suit under its original number in the register of civil suits and proceed to determine  the suit  afresh in the light of above observations by giving  a clear  findings according to law as to the suit property  in respect  of  which any relief is granted to  the  plaintiff, nature  of the relief declined or allowed to  the  plaintiff out of the reliefs prayed for and the conditions subject  to which decree of specific performance and possession if  any, is passed and the names of the defendants against whom it is passed.  The  lower court shall give proper  opportunity  of hearing  to both the parties in accordance with  law  before passing afresh decree . . .. .".     Referring to the need for, and the points which  require to be decided on, remand the learned District Judge said:     "I have, however, found that in some other respects  the decree  passed by the lower court is not  sustainable  being not  in conformity with law and not a executable decree  due to the number of reasons . . . . .".                                                   PG NO 367     "..... The learned sub-judge has failed to give a  clear finding  as  to  what was the  sale  consideration  for  the disputed  transaction  of  sale  as  entered  into   between defendant  No. 1 and the plaintiff vide the agreement  dated 14.2.  1979 executed by defendant No. 1 and as to  how  much consideration had already been paid at the time of agreement and  what was the amount which remained for payment  and  in what  manner  and  by what date it was to  be  paid  by  the plaintiff to defendant No. 1. The learned Sub-judge did  not at  all go into the question as to whether the  property  in suit was already mortgaged and what was the mortgage  amount which was payable to the prior mortgagee. He has missed even to  look  into the admission made by the plaintiff  in  this regard  in the plaint. Again the lower court has  failed  to give  any  finding  on  the  prayer  of  the  plaintiff  for possession  of the suit property and as to if it  (sic)  any conditions this relief could be granted to him while passing the  decree  in his favour. No direction was  given  in  the impugned decree about the payment of any sale  consideration under  the agreement in dispute and accordingly no time  was

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fixed for making the said payment as required under rule l2A of  Order  20 CPC. Plan of the suit property in  respect  of which the decree for specific performance has been passed by the lower court has also not been got proved and referred to in the decree. In the absence of same, decree must be termed as vague and in executable .....".     4. On remand, the trial court dismissed the suit by  its judgment  dated  30.5. 1986. The District  Judge  in  appeal confirmed  this decree for dismissal. The High Court by  its order   dated   6.8.  1987,  now  under   appeal,   rejected appellant’s second appeal in limine.     5.  Appellant’s  main grievance in this appeal  is  that pursuant  to  and  in terms of the  order  of  remand  dated l4.2.1986  the trial court.  should have tried the suit  de- novo  by  affording an opportunity to both  the  parties  to adduce evidence afresh and that the scope of the remand also entitled  appellant  to  have  the  two  witnesses  examined earlier  for the plaintiff recalled for  cross  examination. The trial court however understood the order of remand dated 14.2.1986 differently. lt held that the order having  upheld the  dismissal  of the appellant’s application  for  setting aside   the  order,  placing  appellant  ex-parte  must   be understood  to have clearly excluded from the scope  of  the proceedings  on  remand,  any entitlement  of  appellant  to recall  the witnesses examined at a time when appellant  was ex-parte.                                                   PG NO 368     This  view  of the trial court as to the  scope  of  the proceedings  on remand was endorsed by the  first  appellate court  and  must be held to have been approved by  the  High Court. Appellant assails its correctness here.     6. Appellant’s entitlement to adduce fresh evidence  and to have plaintiff’s witnesses recalled for cross-examination turns upon and is circumscribed by the order of remand.  The order  of  remand dated 14.2.1986 not having  been  appealed against by either side had assumed finality. As observed  by this  court in Nain SINGH v. Koonwarjee, [1971] SCR  207  an order,  which  is  appealable under order  43  CPC,  if  not appealed  against, becomes final and its correctness  is  no more  open  to  examination in view  of  the  provisions  of Section  105 [2] of the Code which provides that  where  any party, aggrieved by an order of remand from which an  appeal lies  ,  does not appeal therefrom he  shall  thereafter  be precluded  from disputing its correctness. It is  true  that the  correctness of the view taken by the District-Judge  in the course of the remand order that the date of the  signing of  the application and not the date of its  initial  filing was  the relevant date for purposes of reckoning  limitation is open to doubt in the light cf. the directions of the High Court  permitting application to sign that application.  But that  order of remand, as stated earlier. was  not  appealed against  by the appellant. The trial court was right in  its view  that its jurisdiction on remand was circumscribed  and fettered by the terms of the order of remand.     The appeal to the principle in Sangram Singh v. Election Tribunal  Kotah,  Bhurey  Lal Baya, [1955]  SCR  1,  in  the circumstances is not much of assistance to the appellant. It is  true that it would not be necessary for a party  to  get rid of an order placing him ex parte if the party wishes  to participate  in  the  proceedings at  any  particular  stage onwards,  provided that he does not seek to be relegated  to the  position he would have occupied if he had  appeared  at the  earlier  hearing or hearings and does not seek  to  set back the: hands of the  clock. It means than he must  accept all that has gone before and be content to proceed from  the

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stage  at  which he has come in. [See also: Arjun  Singh  v. Mohindra Kumar and Ors., [1964] 5 SCR 946].  In the  present case appellant did seek to set the hands of the clock  back- wards;  he  wanted the witnesses to be  recalled  for  cross examination. This, unfortunately was not permissible  having regard to the finality the order of remand had assumed.                                                   PG NO 369     7.   But  that  does not appear to be  the  end  of  the matter.  This  is  a  suit for specific  performance  on  an agreement to sell. The grant of relief is discretionary. The after  consideration of all relevant  circumstances must  be persuaded  to  exercise  its  equitable  and   discretionary jurisdiction   in  favour  of  specific   enforcement.   The jurisdiction is subject to all title conditions to which all discretionary  jurisdictions are subject. There are  certain personal bars to relief. Respondent-l, who was the plaintiff in the suit, did not enter the box and tender evidence.  The subject  matter of the suit is a small piece of property  of 68 Sq. yds. and is said to be the only worldly goods of  the appellant.     Having  regard to all the circumstances of the case  and in  order   that complete justice is done,  the  order  that commends itself as  appropriate is to set aside the  decrees of the courts below and remit the suit for a fresh  disposal after  affording an opportunity to both  parties  to  adduce fresh  evidence on their respective sides. Appellant   shall also  be  entitled  to have the witnesses  examined  in  his absence recalled for cross examination     The relief we grant might look a little over-liberal: we think that the appellant should have another opportunity  to have  his case put-forward and examined on the merits.  This is done by compensating the first-respondent as to an  costs which  we  determine at a sum of Rs. 1,000  which  appellant shall  pay to the first respondent in the trial court  after the suit goes back before it.     8.  Accordingly, the appeal is allowed. the  decree;  of the courts  below set aside and the suit is remitted to  the trial court to be  re-registered in its original number  and disposed .of in accordance with law and in the light of  the observations made in the course of this judgment.  Both  the parties  are  directed to appear before the trial  court  of 30th  of September 1988, for further proceeding in the  suit on  remand  without  the requirement  of  service  of  fresh notices  to them from the trial court in this  behalf.   The trial  court  is  directed to call this matter  on  30th  of September 1988, for this purpose. N.P.V.                               Appeal allowed