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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