Monday, 20 April 2020

When subsequent application for setting aside exparte order shall not be barred by res judicata?

 In State of Maharashtra and others (supra) while considering the provisions of Section 11 of the Code of Civil Procedure it was observed in para 6 as under:

6. The important words are "has been heard and finally decided". The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata."
In State of Uttar Pradesh and another (supra) it was held that dismissal of a suit for non-prosecution was not a decision on merit and hence, would not as par res judicata.

In Govindbhai Patel (supra) proceedings filed under the Tenancy Act were not entertained on the ground that the requisite certificate that was required to be filed along with the application had not been filed. In that context it was observed that dismissal of proceedings by an Authority not on merits but on account of some formal defect would not attract the principles of res judicata.

11. In the present case, as noted above both the earlier applications were not entertained on merits on account of failure to comply with the mandate of Section 17 of the Act of 1887. There was no adjudication on merits on the prayer for setting aside the ex parte decree. Thus, a vital ingredient for the applicability of the bar of constructive res judicata was missing. While deciding both the earlier applications, the Trial Court specifically observed that the applications were not maintainable due to non-compliance with the requirements of Section 17 of the Act of 1887. In the light of law referred to above it is therefore, clear that in absence of any adjudication on merits, the rejection of the earlier two applications would not operate as constructive res judicata and the subsequent application that was filed after complying with the provisions of Section 17 of the Act of 1887 was required to be considered on merits. Both the Courts were not justified in holding that as the earlier orders had attained finality, the proceedings were not tenable.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 385 of 2014

Decided On: 18.06.2015

Paramveersingh Santoshsingh Saini  Vs.  Tarachand

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2015(4)ALLMR 862,2015(5) MHLJ 747


1. Rule. Heard finally by consent of the learned counsel for the parties.

2. This writ petition takes exception to the order dated 21.12.2013 passed on the Revision Application filed under Section 34 of the Maharashtra Rent Control Act, 1999 dismissing said application and confirming the order passed by the Trial Court thereby refusing to condone the delay and consider the application for setting aside the ex parte decree on merits.

3. The respondent is the original plaintiff who had filed suit for eviction of the petitioner under the provisions of said Act. The Trial Court on 04.03.2011 decreed said suit. The present petitioners was proceeded ex parte in said suit. Hence, an application under the provisions of Order 9 Rule XIII of the Code of Civil Procedure came to be filed by vide M.J.C. No. 62/2011. The same was accompanied by an application for condonation of delay. On 03.11.2011 the Trial Court rejected the application for condonation of delay on the ground that the provisions of Section 17 of the Provincial Small Cause Courts Act, 1887 (for short the Act of 1887) had not been complied with. The said order was not further assailed and instead a fresh application making similar prayers was filed vide M.J.C. No. 97/2011. The Trial Court vide its order dated 28.08.2012 noted that the mandate of Section 17 of the Act, 1887 had not been complied and hence said application was dismissed as not being maintainable.

4. Thereafter, the petitioner filed an application for permission to deposit costs of Rs. 3000/-which permission came to be granted by the Trial Court. Thereafter, another application praying for setting aside ex parte decree along with prayer for condonation of delay came to be filed. The Trial Court vide its order dated 30.08.2013 held that as the earlier applications seeking identical relief had been rejected, said adjudication amounted to constructive res judicata and hence, did not consider the application on merit. This rejection was challenged by the petitioner by filing revision application under Section 34 of the said Act. The Revisional Court by the impugned order confirmed the order passed by the Trial Court and rejected the revision application.

5. Shri Masood Shareef, the learned counsel appearing for the petitioner submitted that both the courts erred in not considering the prayer for condoning delay and setting aside ex parte decree on merits. He submitted that the earlier two applications had not been entertained on merits and they had been dismissed on account of failure to comply with the mandatory requirements of Section 17 of the Act of 1887. Thus, according to him, the rejection of the earlier applications did not amount to constructive res judicata and the subsequent application was required to be considered on merit. In support of the aforesaid submissions the learned counsel placed reliance (i) MANU/SC/0597/1996 : AIR 1996 SC 2367 State of Maharashtra and another v. M/s. National Construction Company, Bombay and another; (ii) MANU/SC/8306/2008 : (2009) 1 SCC 689 State of Uttar Pradesh and another v. Jagdish Sharan Agrawal and others; and (iii) MANU/SC/0353/1976 : AIR 1977 SC 1019 Govindbhai Gordhanbhai Patel and others v. Gulam Abbas Mulla Allibhai and others.

6. Per contra, Shri H.R. Gadhia, the learned counsel for the respondent supported the impugned order and submitted that as the rejection of the earlier applications had not been challenged, the said adjudication attained finality and hence, the petitioner was precluded from re-agitating similar prayers. He submitted that the petitioner was interested only in delaying the proceedings and had deliberately not complied with the mandatory requirements. He, therefore, submitted that both the Courts were justified in rejecting aforesaid application. In that regard, the learned counsel placed reliance (i) MANU/MH/0004/1964 : 1963 Mh.L.J 414 Shamsunder Rajkumar, a Firm dealing in Oil, Cakes, etc., Calcutta v. Messrs. Bharat Oil Mills, Nagpur; (ii) MANU/UP/1648/2006 : AIR 2007 Allahabad 1 Lalji Gupta and Anr. v. Addl. Dist. Judge/Spl. Judge, Allahabad and Ors.; (iii) MANU/MH/0035/1990 : 1990 Mh.L.J. 249 Dilip Murlidhar Lohiya v. Mohd. Azizul Haq Mohd. Abdul Haq; and (iv) MANU/SC/0017/2002 : AIR 2002 SC 582 Kedarnath v. Mohan Lal Kesarwari and others.

7. I have carefully considered the respective submissions and I have gone through the documents filed on record. The factual aspects of the matter are not in dispute. It is not disputed that the two earlier applications filed by the petitioner for setting aside the ex parte decree came to be dismissed on the ground that the provisions of Section 17 of the Act of 1887 had not been complied with. The question therefore, is whether dismissal of the earlier applications precluded the petitioner from filing the subsequent application and whether he was barred from doing so on principles of constructive res judicata.

8. The Trial Court while considering the third application for setting aside the ex parte decree along with prayer for condonation of delay held that both the earlier applications had been filed without depositing necessary costs in terms of proviso to Section 17 of the Act of 1887. It also held that before filing the third application such compliance had been duly made. It however, held that on principles of constructive res judicata, the petitioner was precluded from seeking identical relief again. The Revisional Court while confirming said order observed that failure to challenge the earlier orders resulted in depriving the petitioner of the right to file the subsequent application.

9. The provisions of Section 17 of the Act of 1887 and compliance with the proviso therein has been held to be mandatory by the Supreme Court in Kedarnath (supra). It has been held that depositing in Court the amount due was necessary along with the application seeking setting aside of the ex parte decree. The petitioner while moving the third application had complied with said provision by depositing an amount of Rs. 3000/-.

10. In State of Maharashtra and others (supra) while considering the provisions of Section 11 of the Code of Civil Procedure it was observed in para 6 as under:

6. The important words are "has been heard and finally decided". The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata."
In State of Uttar Pradesh and another (supra) it was held that dismissal of a suit for non-prosecution was not a decision on merit and hence, would not as par res judicata.

In Govindbhai Patel (supra) proceedings filed under the Tenancy Act were not entertained on the ground that the requisite certificate that was required to be filed along with the application had not been filed. In that context it was observed that dismissal of proceedings by an Authority not on merits but on account of some formal defect would not attract the principles of res judicata.

11. In the present case, as noted above both the earlier applications were not entertained on merits on account of failure to comply with the mandate of Section 17 of the Act of 1887. There was no adjudication on merits on the prayer for setting aside the ex parte decree. Thus, a vital ingredient for the applicability of the bar of constructive res judicata was missing. While deciding both the earlier applications, the Trial Court specifically observed that the applications were not maintainable due to non-compliance with the requirements of Section 17 of the Act of 1887. In the light of law referred to above it is therefore, clear that in absence of any adjudication on merits, the rejection of the earlier two applications would not operate as constructive res judicata and the subsequent application that was filed after complying with the provisions of Section 17 of the Act of 1887 was required to be considered on merits. Both the Courts were not justified in holding that as the earlier orders had attained finality, the proceedings were not tenable.

12. The decisions in the case of Shamsunder Rajkumar, Lalji Gupta and Dilip Murlidhar Lohiya (supra) do not assist the submissions made on behalf of the respondent and do not apply to the present case. In view of aforesaid discussion, it is clear that rejection of the subsequent application cannot be sustained.

13. Hence, the following order is passed:

[i] The order dated 30.08.2013 passed by the Trial Court in M.J.C. No. 38/2013 as well as the order dated 21.12.2013 in Misc. Civil Appeal No. 222/2013 are set aside.

[ii] The proceedings in M.J.C. No. 38/2013 are remanded to the Trial Court for fresh consideration on merit. It is clarified that this Court has not examined the reasons assigned by the petitioner for seeking condonation of delay and setting aside the ex parte order nor has it considered the reply filed to said applications. Said applications shall be decided on their own merits and in accordance with law. The Trial Court shall not be influenced by any observations made in this order.

[iii] As the decree has been passed in the year 2011, the Trial Court is directed to expeditiously decide aforesaid proceedings and in any event by the end of October, 2015.

[iv] The interim order dated 24.11.2013 shall continue to operate till M.J.C. No. 38/2013 is decided.

[v] Rule is made absolute in aforesaid terms. The petitioner however, to pay costs of Rs. 5000/-to the respondent before the Trial Court as condition precedent in the facts of the present case.


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