Friday, 9 September 2016

When exparte decree can be set aside as per O 9 R 13 of CPC?

From the aforesaid it is, therefore, clear that if the plaintiff was
called upon to lead evidence and he thereafter filed various documents on
record which came to be exhibited and after considering the same a decree
came to be passed in absence of defendant, the same was an exparte decree.
In the present case, the record indicates that the Court did not pass any
judgment on account of failure of the defendants to file written statement.
The case was kept for no written statement evidence after which plaintiff
initially amended the plaint, led his evidence and an opportunity was given

to the defendants to cross examine the plaintiff.   Hence, judgment passed
thereafter cannot be termed as a judgment delivered either under Order 8
Rule 5 or Order 8 Rule 10 of the Code.   Merely because the Small Causes
Court  had   observed  that  the  judgment   had  been  passed   without   written
statement, that would not mean that said observation can prevail even when
it is evident from the record that the judgment as passed was not under
Order VIII Rule 5 or Rule 10 of the Code.  Though the judgment has been
passed without the written statement on record, it is after calling upon the
plaintiff to lead evidence and prove his case.  Hence, ratio of the decision in
Jugalkishore   Kothari  (supra)   cannot   apply   in   the   aforesaid   facts.     The
application therefore moved by the defendants under Order IX Rule 13 of the
Code was perfectly tenable.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT   PETITION  NO.    3802    OF     2013
Ashok Kundalrai Mohekar,

VERSUS
The National Textile Corporation
Ltd. 
CORAM:   A. S. CHANDURKAR  J.
                         

DATED: MARCH  12, 2015.
Citation:2016(4) ALLMR104


The petitioner ­original plaintiff has filed the present writ petition

being aggrieved by the order dated 02.04.2013 passed by the first appellate
Court allowing the appeal filed by the respondent nos. 1 and 2 and setting
aside the judgment and decree passed in Regular Civil Suit No. 35 of 2005.
2] The facts in so far as the same are relevant are that, the petitioner
is the owner of the suit premises which is occupied by the respondent nos. 1
and 2 as tenant paying monthly rent of Rs. 3085/­.   The petitioner issued
notice dated 02.12.2004 and terminated the tenancy of the respondents.
Thereafter, suit for possession of the property in question came to be filed on
14.01.2005.  
3] On being served with the suit summons the respondent nos.   1
and   2   appeared   before   the   trial   Court   and   sought   time   to   file   written
statement.  Time came to be granted vide orders passed below Ex. 11,12,13.
However, the application seeking time to file written statement  vide Ex. 14
came to be rejected on 07.07.2005 and the case was thereafter fixed for no
written statement evidence.   The petitioner thereafter filed his affidavit in
lieu of evidence.   Subsequently, he also filed certain documents on record.
Thereafter the plaint also came to be amended.  After grant of sufficient time
thereafter, the plaintiff was examined but he was not cross examined by the
defendants and ultimately by  judgment dated 24.10.2007 the suit came to
be decreed.     
4] The respondent  Nos. 1  and 2 thereafter filed proceedings for
setting aside the ex­parte decree along with application for condonation of
delay.  The delay came to be condoned by imposing costs of Rs. 3000/­ on

the respondent nos. 1 and 2.  The Small Causes Court however rejected the
application filed under provisions of Order 9 Rule 13 of the Code of Civil
Procedure   (for   short   the   Code)   on   the   ground   that   despite   sufficient
opportunity the written statement had not been filed.  It was further held that
application under provisions of Order 9 Rule 13 was not maintainable.  
5] The respondent Nos. 1 and 2 being aggrieved by said order filed
Miscellaneous Civil Appeal challenging the same.  The first appellate Court
recorded a finding that the plaintiff had filed his affidavit evidence and the
suit was thereafter decided.  It was not the case of the decree being passed
under provisions of Order 8 Rule 5 and Rule 10 of the Code.  It, therefore, set
aside the ex­parte decree by allowing the Miscellaneous Civil Appeal.  Being
aggrieved by aforesaid adjudication, the petitioner­original plaintiff has filed
the present writ petition.  
6] Shri   Anjan   De,   learned   counsel   appearing   for   the   petitioner
submitted that the first appellate Court erred in setting aside the judgment of
the trial Court.  According to him as no written statement came to be filed by
the respondent nos. 1 and 2, the trial Court was justified in proceeding
further and  thereafter deciding the suit.  It was submitted that provisions of
Order 8 Rule 5 of the Code permit filing of an   affidavit in support of the
claim and such affidavit had been filed by the petitioner.  It was, therefore,
urged that the provisions of Order 9 Rule 13 were not at all applicable and
hence the impugned judgment could not be sustained.   In support of said
submission the learned counsel for the petitioner relied upon the judgment of

the Division Bench in Dhanwantrai R. Joshi & others  Vs.   Satish J. Dave &
others 1998(3) Maharashtra Law Journal 924.   According to him therefore
the proceedings filed by respondent nos. 1 and 2 for setting aside the ex­parte
decree were not tenable and the only remedy available was filing an appeal.
It was then submitted that as the Court had observed that it was proceeding
without written statement of the respondent nos. 1 and 2, it was not open for
the first appellate Court to have treated the decree as passed as an ex­parte
decree.  Relying upon the judgment of  learned Single Judge, in  Jugalkishore
Navalkishore Kothari   Vs.  Kamalkishore Onkarmal Rungta 2005 BCI 140,  it
was submitted that the superior Court could not hold that trial Court had
proceeded   in   a   particular   manner   especially   when   the   trial   Court   had
indicated the provisions under which it had passed the order.   It was also
submitted   that   the   first   appellate   Court   was   not   justified   in   permitting
respondent nos. 1 and 2 to file their written statement especially when the
order passed below Ex. 14 had become final.  The learned counsel, therefore,
submitted that the impugned judgment deserves to be set aside. 
7] Shri S. P. Kshirsagar, learned counsel appearing for respondent
nos.   1   and   2   on   the   other   hand   supported   the   impugned   judgment.
According to him as the plaintiff had filed his affidavit evidence and had also
produced documents on record it was clear that the judgment of the trial
Court was not one passed under provisions of Order 8 Rule 5 of the Code.
He submitted that as the trial Court had considered the evidence on record
along with documents as filed, the decree as passed was ex­parte in nature

and hence application for setting aside the same was legally tenable.   In
support of his submission the learned counsel relied upon Balraj Taneja and
another  Vs.  Sunil Madan and another  (1999) 8 Supreme Court Cases 396, C.
N. Ramappa Gowda     Vs.   C.C. Chandregowda (Dead) by LRs. And another
(2012) 5 Supreme Court Cases 265  and  Gaurang V. Merchant & Ors.   Vs.
Madhliso & Co. Pvt. Ltd. & Ors. 2004(2) ALL MR 737.  He also submitted that
as the first appellate Court had exercised discretion by setting aside the exparte
decree, there was no reason to interfere with the impugned judgment
in the facts of the present case.
8] I have carefully considered aforesaid submissions.   I have also
gone  through  the  roznama  of  the  case   that   was  relied   upon  by  learned
counsel for the parties.   Perusal of said roznama indicates that on three
occasions the  respondent nos. 1 and 2 had been granted time to file written
statement.  On the 4th occasion application vide Ex. 14 came to be rejected on
07.07.2005.  The case was thereafter fixed for no written statement evidence.
On   12.02.2006   the   plaintiff   submitted   his   affidavit   in   lieu   of   evidence.
Thereafter, vide Ex. 16 an application for amending the plaint was moved.
Similarly,     vide   Ex.   17   the   plaintiff   sought   permission   to   file   certain
documents on record.  The defendants vide Ex. 19 sought time to file reply to
the applications at Exs. 16 and  17.  Similarly, such requests were made for
grant of time vide Exs. 20 and 21 and ultimately on 24.11.2006 reply came to
be filed vide Ex. 22 to the application seeking amendment of the plaint.  On
the same day the application vide Ex. 16 was allowed and amendment was

permitted to be carried   out.   The case was thereafter again fixed for no
written statement evidence.   Thereafter on 20.03.2007 the plaintiff sought
permission to file additional affidavit vide Ex. 23.  Said permission was also
granted.  Vide Ex. 26 filed on 24.09.2007 the plaintiff sought permission to
file   additional   affidavit   after   which   he   came   to   be   examined.     Certain
documents came to be exhibited vide Exs. 28 to 32.  The plaintiff thereafter
filed pursis vide Ex. 33 and closed his side.  The suit was thereafter adjourned
for evidence of the defendants but on account of absence of the defendants
the suit proceeded further.    Ultimately on 24.10.2007 in absence of the
defendants the suit came to be decreed.  
9] The aforesaid facts indicate that though application vide Ex. 14
came to be rejected on 07.07.2005 various further steps were taken by the
plaintiff to amend the plaint, file documents on record, and to file  additional
affidavit on record.  The plaintiff thereafter examined himself wherein four
documents came to be exhibited after which the case was fixed for evidence
of the defendants.  In these facts therefore the question is whether decree as
passed by the trial Court could be said to be an ex­parte decree.  
10] In  Principal Collector of Customs and another   Vs.   M/s Capital
Colour Lax Pct. Ltd. And another 2007(6) Maharashtra Law Journal 225, the
Division Bench has held that where the plaintiffs were permitted to place
documents on record and after perusing such documents   if the suit was
decreed then such exercise could not be said to be either under provisions of
Rule 5 or Rule 10 of Order 8 of the Code.  In Lachhiram Chudiwala (H.U.F.)

Vs.  Bank of Rajasthan Limited 2007(1) Maharashtra law Journal 315, it was
observed that if the Court passes an order that the suit be heard ex­parte and
there   proceeds   to   hear   the   suit   ex­parte,   records   evidence   and   then
pronounces the judgment, then the same cannot be treated as one made
under provisions of Order 8 Rule 5 or Rule 10 of the Code.   In Badrinarayan
s/o Raghunath Sharma  Vs.  Suresh Nathamal Gothawal 2002(4) Maharashtra
Law Journal 522, it was held that if the judgment was to be delivered on the
principle of non­traverse, then there is no necessity to adjourn the matter for
hearing and invite the plaintiff to lead evidence.  In said case it was held that
as the plaintiff was so invited and thereafter judgment was delivered when
the defendant was absent, it was a judgment under provisions of Order 9
Rule 6 read with Order 17 Rule 2 of the Code and therefore remedy under
Order 9 Rule 13 was available.   Similarly in Steamship Mutual Underwriting
Association (Bermuda) Ltd. And others Vs. Thakur Shipping Company Ltd. And
others 2001(2) Maharashtra Law Journal 392, it was held that the suit can be
decreed ex­parte only on recording evidence.  
10] The   question   that   was   considered   by   the   Division   Bench   in
Dhanvantarai  R. Joshi (supra) was whether a decree passed under Order 8
Rule 5 or Rule 10 of the Code could be set aside by filing an application
under Order 9 Rule 13 of the Code.  It was held that provisions of Order 8
Rule 5 or Rule 10 and provisions of Order 9 operate in different fields and
hence where a decree is passed under Order 8 Rule 5 or Rule 10 of the Code,
then application under Order 9 Rule 13 was not maintainable.   It has also

been observed in paragraph 13 as under: 
“13. If the defendant fails to appear on the
date of hearing, the Court is required to pass an order
that the suit be heard exparte and to proceed further
with the hearing of the suit.  This requires recording
of evidence and to proceed with the matter.   After
recording evidence ex parte, the Court can pronounce
judgment   on   the   basis   of   the   evidence   which   is
brought by the plaintiff.  In such cases, the suit is not
disposed of as provided under Order VIII, Rule 5 or
Rule 10 on the basis of the averments made in the
plaint.”
The aforesaid indicates that if the Court proceeds with the hearing of the suit
and records evidence ex­parte, then the suit is not disposed of as provided
under Order 8 Rule 5 or Rule 10 of the Code.  The Supreme Court in Balraj
Taneja (supra) has observed that there is discretion with the Court to proceed
under provisions of Order 8 Rule 5 of the Code if it finds fit.  It is however
observed that the Court has to   cautiously consider the averments in the
plaint if it desires to decide the suit on that basis.   Similar, view has been
taken in C. N. Ramappa Gowda (supra).
11] From the aforesaid it is, therefore, clear that if the plaintiff was
called upon to lead evidence and he thereafter filed various documents on
record which came to be exhibited and after considering the same a decree
came to be passed in absence of defendant, the same was an exparte decree.
In the present case, the record indicates that the Court did not pass any
judgment on account of failure of the defendants to file written statement.
The case was kept for no written statement evidence after which plaintiff
initially amended the plaint, led his evidence and an opportunity was given

to the defendants to cross examine the plaintiff.   Hence, judgment passed
thereafter cannot be termed as a judgment delivered either under Order 8
Rule 5 or Order 8 Rule 10 of the Code.   Merely because the Small Causes
Court  had   observed  that  the  judgment   had  been  passed   without   written
statement, that would not mean that said observation can prevail even when
it is evident from the record that the judgment as passed was not under
Order VIII Rule 5 or Rule 10 of the Code.  Though the judgment has been
passed without the written statement on record, it is after calling upon the
plaintiff to lead evidence and prove his case.  Hence, ratio of the decision in
Jugalkishore   Kothari  (supra)   cannot   apply   in   the   aforesaid   facts.     The
application therefore moved by the defendants under Order IX Rule 13 of the
Code was perfectly tenable.  
12] The first appellate Court while allowing the application moved by
the respondent nos. 1 and 2 was satisfied that a case had been made out for
setting aside the ex­parte decree.  While condoning the delay in moving said
application before the trial Court, evidence of the parties had been recorded.
The first appellate Court after considering the entire matter was satisfied that
a  case had been made out for setting aside the exparte decree.  It, therefore,
proceeded to impose costs of Rs. 5000/­ on the respondent nos. 1 and 2
while   setting   aside   the   ex­parte   decree.     While   doing   so   it   placed   the
respondent nos. 1 and 2 in the same position as required prior to setting
aside the exparte decree.  Such course was permissible in view of the law laid
down by the Supreme Court in Arjun Singh  Vs.  Mohindra Kumar and others

AIR 1964 Supreme Court 993.  The submission in that regard made on behalf
of the petitioner therefore cannot be accepted.  
13] In view of aforesaid discussion it is clear that   first appellate
Court   was   justified   in   allowing   the   Miscellaneous   Civil   Appeal   filed   by
respondent nos. 1 and 2.   Said adjudication is in accordance with law and
does not suffer from any jurisdictional error.  It is, however, to be noted that
the suit as filed is of the year 2005 and hence the trial Court is directed to
decide   the   same   by   the   end   of   December   2015.     Subject   to   aforesaid
direction, there is no case made out to interfere in the writ petition.   The
same is therefore dismissed with no order as to costs.   

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