Mahesh Yadav &
ANR Vs. Rajeshwar Singh & Ors  INSC 2180 (16 December 2008)
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
S.B. Sinha, J.
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.
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
3 The learned
Munsif, Biharsharif decreed the suit, stating :
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."
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.
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 4 the compromise had been
entered into by some of the parties and the Presiding Officer has been
transferred, noticed :
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 :
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.
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."
revision application was filed there against.
5 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 there for. It was
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.
aside an ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure
is set aside."
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.
H.L. Agrawal, learned senior counsel appearing on behalf of the respondents,
however, supported the judgment.
IX Rule 13 of the Code of Civil Procedure reads as under :
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
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.
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."
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.
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.
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.
Bhanu Kumar Jain v. Archana Kumar & Anr. [(2005) 1 SCC 787] , this Court
"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 9 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,
"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
judgment of the High Court, therefore, in our opinion is not sustainable.
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 10 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.
is allowed with the aforementioned directions. However, in the facts of and
circumstances of this case, parties shall bear their own costs.