Monday, 5 November 2018

Whether appeal and application for setting aside exparte decree can be filed simultaneously?

 In the case of Bhanu Kumar Jain Bhanu Kumar Jain v. Archana Kumar, MANU/SC/1079/2004 : (2005) 1 SCC 787, the three Judge Bench of Apex Court considered the decision of Rani Choudhary (supra). In paragraphs 26 and 28, it was observed thus :

"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.

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."

[emphasis supplied]

11. Thus, there is no statutory bar to avail two remedies simultaneously, namely, appeal under Section 96/29(1)(a) of the Act as also application under Order IX Rule 13 of C.P.C.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 1223 of 2014

Decided On: 12.04.2018

Abdul Sameer Hanif  Vs.  Saifuddin Sharafally and Ors.

Hon'ble Judges/Coram:
R.G. Ketkar, J.




1. Heard Mr. B.B. Nangare, learned counsel for the applicant and Mr. A.N. Nasikwala, learned counsel for the respondents, at length.

2. By this application under Section 115 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.'), the applicant, hereinafter referred to as the 'defendant', has challenged the judgment and order dated 19.9.2014 passed by the Appellate Bench of the Small Causes Court below Exhibit-31 in (A-1) Appeal No. 461/2005. By that order, the Appellate Court allowed the application made by the respondents, hereinafter referred to as the 'plaintiffs', and held that the appeal preferred by the defendant is not maintainable. By order dated 31.8.2017, after hearing both the sides, this Court admitted the C.R.A. by issuing Rule.

3. In support of this application, Mr. Nangare submitted that by order dated 1.3.2004, the learned trial Judge decreed the suit ex parte. In view thereof, the defendant filed application on 5.5.2004 under Order IX Rule 13 of C.P.C. On 14.6.2004, the learned trial Judge dismissed the application as neither the Advocate nor the defendant was present. The learned trial Judge instead of dismissing the application for default, dismissed the application on merits.

4. Aggrieved by this decision, the defendant preferred Appeal No. 495/2004 under Order XLIII Rule 1(c) of C.P.C. which was dismissed by the Appellate Court on 1.8.2012. Aggrieved by that decision, the defendant has instituted C.R.A. No. 1021/2014 in this Court. As there was delay in filing C.R.A., the defendant took out application for condonation of delay. Said Civil Application was allowed and C.R.A. is pending.

5. The defendant also challenged the order dated 1.3.2004 passed by the learned trial Judge decreeing the suit ex parte by filing substantive appeal being Appeal No. 461/2005 under Section 29(1)(a) of the Act. In that appeal, the plaintiffs filed application Exhibit-31 for dismissal of the appeal on the ground of maintainability. By the impugned order, the Appellate Court allowed the application Exhibit-31 and dismissed Appeal No. 461/2005.

6. Mr. Nangare submitted that the Appellate Court committed serious error in holding that Appeal No. 495/2004 preferred by the defendant challenging the order dated 14.6.2004 dismissing the application under Order IX Rule 13 of C.P.C., is not maintainable. He submitted that the Appellate Court has committed several errors of law apparent on the face of record in holding that the appeal is not maintainable. Mr. Nangare submitted that Appeal No. 461/2005 is preferred by the defendant under Section 29(1)(a) of the Act. He submitted that against the ex parte decree, the defendant has three remedies, namely,

(i) filing of an application under Order IX Rule 13 of C.P.C.

(ii) filing of substantive appeal under Section 96/29(1)(a) in the present case; and

(iii) filing of Review Petition before the same Court.

7. These remedies are simultaneous remedies. In the present case, Appeal No. 461/2005 was filed under Section 29(1)(a) of the Act and same cannot be held not maintainable only because application under Order IX Rule 13 of C.P.C. is rejected by the trial Court as also by the Appellate Court and C.R.A. is pending in this Court. In support of this proposition, he relied upon the decision of Apex Court in the case of Rani Choudhary v. Lt. Col. Suraj Jit Choudhury, MANU/SC/0010/1982 : (1982) 2 SCC 596.

8. On the other hand, Mr. Nasikwala relied upon the decision of this Court in Khurshed Banoo w/o Murtaza Hasan (deceased by LRs) v. Vasant Mallikarjun Manthalkar (deceased by LRs), MANU/MH/0707/2002 : AIR 2003 BOM 52 and in particular paragraph-12 thereof. In paragraph-12, the learned Single Judge of this Court (Coram: A.M. Khanwilkar, J. as His Lordship then was) referred to the decision of Division Bench of Madhya Pradesh High Court in Sumera v. Madanlal, MANU/MP/0046/1989 : AIR 1989 Madh Pra 224. In that case, the Division Bench of Madhya Pradesh High Court relied upon the observations of the Apex Court in Rani Choudhary (supra) and held that the remedy of appeal cannot be permitted once the remedy under Order IX Rule 13 of C.P.C. has been exhausted. He, therefore, submitted that no case is made out for interfering with the impugned order.

9. I have considered the rival submissions advanced by the learned Counsel appearing for the parties. I have also perused the material on record. As noted earlier, ex parte decree was passed against the defendants on 1.3.2004. The defendant filed application under Order IX Rule 13 of C.P.C. on 5.5.2004. On 14.6.2004, the learned trial Judge dismissed the application under Order IX Rule 13 of C.P.C. On 7.7.2004, the defendant filed Appeal No. 495/2004 under Order XLIII Rule 1(c) of C.P.C., which was dismissed on 1.8.2012. Aggrieved by that decision, the defendant has instituted C.R.A. No. 1021/2014 in this Court on 14.1.2013. Aggrieved by the decision dated 1.3.2004, the defendant filed substantive appeal being Appeal No. 461/2005 under section 29(1)(a) of the Act. It is in that appeal, the plaintiff filed application Exhibit-31 on 18.6.2013 for dismissal of the appeal on the ground of maintainability.

10. In the case of Bhanu Kumar Jain Bhanu Kumar Jain v. Archana Kumar, MANU/SC/1079/2004 : (2005) 1 SCC 787, the three Judge Bench of Apex Court considered the decision of Rani Choudhary (supra). In paragraphs 26 and 28, it was observed thus :

"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.

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."

[emphasis supplied]

11. Thus, there is no statutory bar to avail two remedies simultaneously, namely, appeal under Section 96/29(1)(a) of the Act as also application under Order IX Rule 13 of C.P.C. In view thereof as also in view of the decision of the learned Single Judge of this Court in Khurshed Banoo (supra), it cannot be said that substantive appeal preferred by the defendant against the ex parte decree under Section 29(1)(a) can be said to be not maintainable. As noted earlier, even C.R.A. preferred by the defendant is pending for admission in this Court. In view thereof, the impugned order cannot be sustained and as such is liable to be set aside thereby restoring appeal No. 461 of 2005 before the Appellate Court for deciding it on its own merits and in accordance with law. Rule is made absolute accordingly with no order as to costs. Liberty is reserved to the plaintiffs to file application, if not already filed, for applying for monthly compensation. If such an application is made, the Appellate Court will decide the same on its own merits and in accordance with law. Order accordingly.


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