Allowed

Ajit Singh@Arit v. Anil Ku.Mishra

Orissa HC12 Aug 2015WP(C)/5637/2005

Case brief

AI extract

What is this about?

The Orissa High Court held that the lower appellate court erred in holding an appeal under Section 96 CPC not maintainable against an ex parte decree when Order IX Rule 13 CPC was the correct provision cited. The writ petition was allowed to quash the impugned judgment and remit the matter for hearing on merit.

What did the court decide?

The judgment dated 29.1.2005 was quashed and the matter remanded to the lower appellate court for hearing the appeal on merit within six months.

Ajit Singh@Arit Vs Anil Ku.Mishra — Civil Procedure and Limitation | Orissa HC (2015)

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HIGH COURT OF ORISSA: CUTTACK

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WP(C) No.5637 of 2005

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In the matter of an application under Article 227 of the Constitution of India.

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Ajit Singh @ Arit Singh Chhabra …. Petitioner v ersus Anil Kumar Mishra …. Opp. Party For Petitioner … Mr. Manoranjan Dash, Advocate For Opposite Party … Mr. Saroj Kumar Dash, Advocate

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH

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Date of hearing: 06.08.2015 : Date of judgment:12.08.2015

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Dr. A.K.Rath, J Aggrieved by and dissatisfied with the judgment dated 29.1.2005 passed by the learned Addl. District Judge, Jharsuguda in RFA No.7 of 2003, vide Annexure-2, the petitioner has filed the present petition. By the said order, the learned Addl. District Judge dismissed the appeal and confirmed the ex parte judgment dated 4.3.2003 passed by the learned Civil Judge (Junior Division), Jharsuguda in Money Suit No.2 of 2002 holding, inter alia, that the same is not maintainable.

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2. Opposite party as plaintiff filed a suit for realisation of arrear dues along with pendente lite and future interest at the rate of 12% per annum from the defendant in the court of learned Civil Judge (Junior Division), Jharsuguda, which was registered as Money Suit No.2 of 2002. The suit was decreed ex parte on 4.3.2003. Against the said judgment and decree, the

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petitioner-defendant filed an appeal before the learned Addl. District Judge, Jharsuguda, which was registered as RFA No.7 of 2003. By judgment dated 29.1.2005, the learned Addl. District Judge dismissed the appeal holding, inter alia, that the appellant-petitioner should have first approached the learned lower court under Order IX Rule 13 Civil Procedure Code (hereinafter referred to as “the CPC”) and, therefore, the appeal is not maintainable.

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3. Heard Mr. Manoranjan Dash, learned counsel for the petitioner and Mr. Saroj Kumar Dash, learned counsel for the opposite party.

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4. The sole question that hinges for consideration in this petition is: what is the remedy available to the defendant when the suit is decreed ex parte?

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5. The subject-matter of dispute is no more res integra. In Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993, the apex Court held that when a suit is decree ex parte, Order IX Rule 13 CPC would come in. The defendant can, besides filing an appeal or an application for review, have recourse to an application under Order IX Rule 13 to set aside the ex parte decree. Elucidating further, the apex Court in the case of Bhanu Kumar Jain v. Archana Kumar and another, AIR 2005 SC 626, in paragraphs-26, 36, 37 and 38 of the report, held as follows:

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“ 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 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true.

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xxx xxx xxx

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36. ……..A right to question the correctness of the decree in a First Appeal is a statutory right. Such a right shall not be curtailed nor

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any embargo thereupon shall be fixed unless the statute expressly or by necessary implication say so. [See Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. and Others Vs. C.K. Saji and Others, (2004) 3 SCC 734].

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37. We have, however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.

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38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the Trial Court and/or existence of a sufficient case for non- appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Choudhari that the 'Explanation' appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury (supra), P. Kiran Kumar (supra) and Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others [2004 (9) SCALE 270].”

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6. The logical sequitur of the analysis made in the preceding paragraphs is that defendant, against whom an ex parte decree is passed, has the following remedies available to him;

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I. file an application under Order IX Rule 13 CPC to set aside the ex parte decree; or

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II. prefer an appeal against such decree under Section 96(2) CPC ; or

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III. file an application for review under Order 47 Rule 1 of the CPC; or

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IV. institute a suit on the ground of fraud.

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7. An application under Order IX Rule 13 CPC is a statutory remedy. Equally, right to file an appeal under Section 96(2) CPC is a statutory in nature. Such a right shall not be curtailed, nor any embargo thereupon shall be fixed unless the statute expressly or by necessary implication say so.

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8. Thus the learned lower appellate court has committed a patent error in law in holding that the appeal is not maintainable. True it is, instead of quoting Section 96 CPC, the petitioner has wrongly quoted Order 43 Rule 1 CPC in the cause title of the appeal memo, but the appeal in essence is an appeal under Section 96 CPC. Law is well settled that if a court has power, only by use of a wrong nomenclature in the petition, such power cannot be taken away (Bhabatosh Sinha v. Prara Sinha & others, AIR 2006 Orissa 7). The duty of the Court is to impart justice. The substance of the petition matters, not nomenclature. The Court cannot pull down its shutters on trivial grounds.

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9. On taking a holistic view of the matter, this Court has no hesitation to quash the judgment dated 29.1.2005 passed by the learned Addl. District Judge, Jharsuguda in RFA No.7 of 2003, vide Annexure-2, and remit the matter back to the learned lower appellate court for hearing the appeal on merit. Learned lower appellate court is directed to conclude the hearing of the appeal within a period of six months from today.

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The petition is allowed. No costs.

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DR. A.K.RATH, J

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Orissa High Court, Cuttack. The 12^th August, 2015/Pradeep

Ajit Singh@Arit v. Anil Ku.Mishra

Case brief

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Ajit Singh@Arit v. Anil Ku.Mishra

Case brief

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