Under which circumstances the court can decide a suit on merit if any party fails to adduce further evidence?

 The power conferred on Courts Under Rule 3 of Order 17 of the Code of Civil Procedure to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. In any contingency, the discretion is always with the Court to resort to Rule 2 or 3 respectively or to grant an adjournment for deciding the suit in a regular way in spite of default. Rules 2 and 3 respectively are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in Rule 3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases could be on the basis of pleadings, documents and burden of proof. Anyhow, it is appreciable for the Court to indicate by the judgment that the decision is for default or on the merits. The only alternative of the Court in cases covered by Rule 3 or the explanation to Rule 2 is not to decide on the merits alone. If such an interpretation is given, it will amount to an unjustified preference to one who purposely absents than to one who presents but unable to proceed with the case. 'Appearance' and 'presence' have well recognised meanings. They imply presence in person or through pleader properly authorised for the purpose of conducting the case. Rule 3 comes into play only when presence is to proceed with the case, but default is committed in any one of the three ways mentioned in Rule 2 or explanation to Rule 2 is extracted. Those are cases in which some materials are there for the Court to decide the case on the merits and not cases where decision could only be for default. That is clear from a combined reading of Rules 2 and 3 respectively and the explanation. In this case, none of these conditions were present and the decision was evidently for default. Rule 2 alone is attracted. (see: R. Ravindran v. M. Rajamanickam, MANU/TN/8351/2006) {Para 52}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1948 of 2013

Decided On: 29.03.2023

Prem Kishore and Ors. Vs. Brahm Prakash and Ors.

Hon'ble Judges/Coram:

Sudhanshu Dhulia and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0327/2023.

Read full Judgment here: Click here.

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Whether subsequent suit will be barred by res judicata if previous suit was not decided on merit?

The general principle of res judicata Under Section 11 of the Code of Civil Procedure contain Rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the Plaintiff's appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the Plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the Plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit.{Para 34}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1948 of 2013

Decided On: 29.03.2023

Prem Kishore and Ors. Vs. Brahm Prakash and Ors.

Hon'ble Judges/Coram:

Sudhanshu Dhulia and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0327/2023.

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Supreme Court:Order of subordinate court will not merge if superior court has not decided that matter on merit

 In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar v. State of Tamil Nadu [989 (4) SCC 187].

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5574 of 2009

Decided On: 15.03.2019

Kaikhosrou (Chick) Kavasji Framji  Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: AIR 2019 SC 1692

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Whether litigation should be terminated by default either of plaintiff or defendant?

 Counsel for the appellant would submit that the property is the residential property. It is much more valuable than the amount shown in the agreement. The transaction was essentially a loan transaction and opportunity must be given to contest the matter on merits.

6. Per contra, the learned Counsel for the decree holder would submit that ample opportunity was given to the appellant, and in spite of the same, he has not contested the matter. Appellant has another residential building. The building in question was let out on rent.

7. Most importantly, the learned Counsel submits that after levying execution of the decree, the property has been conveyed to the respondent by the orders of the Court. In other words, sale deed has

already been executed in her favour. It is respondent’s case that appellant was served notice by the executing court. There is no scope for interfering with the matter by this Court.

8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4507 OF 2019

ROBIN THAPA Vs  ROHIT DORA

K.M. JOSEPH, J.

Dated:July 08, 2019.

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Whether appeal is maintainable if court while deciding case on merits took note of terms of compromise?

 In the instant case, the impugned judgment is not passed as a consent decree. After the Issues were framed, both the parties have adduced oral and documentary evidence. In so far as Issue Nos. 1 to 5 and Issue No. 8 are concerned, in view of the compromise entered into between plaintiffs-1 and 2 on the one hand and defendants-1 to 5 on the other as per Ex. P-10, the rival contentions taken by them was held to be given up. Therefore it was held that Issue Nos. 1 to 5 and 8 do not survive for consideration. In so far as Issue Nos. 6 and 7 is concerned, on appreciation of the evidence on record, the finding is recorded. In so far as additional Issue Nos. 1 and 2 are concerned, on appreciation of oral and documentary evidence adduced in the case, a finding is given holding both the issues against defendants-9 and 10. Merely because, the Court while deciding the case on merits took note of the terms of the compromise and did not record a finding on merits in respect of the subject matter of compromise, that would not render the judgment and decree, a compromise decree. Admittedly, defendants-9 and 10 are not parties to the compromise. Their claim and contentions are decided on merits. As they are aggrieved by the said finding, they have a right to prefer an appeal under Section 96 of CPC. Therefore the appeal filed is maintainable and we do not see any substance in the contention that the appeal is not maintainable.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.F.A. No. 960/2003

Decided On: 31.01.2015

Syed Basheer Malik and Ors. Vs.  Jameela Begum and Ors.

Hon'ble Judges/Coram:N. Kumar and B. Veerappa, JJ.

Citation:AIR 2016(NOC)395 KAR

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Whether appellate court will interfere with order of trial court if there is no decision on merit?

The unequivocal legal propositions as judicially ordained, to ascertain the emergence and existence of a question of law, the scope of examination thereof by a court of appellate jurisdiction and the balancing of the competing factors in the grant of interlocutory remedy, hallowed by time, indeed are well settled. A question of law, as is comprehended in Section 10Fof the Act, would arise indubitably, if a decision which is the foundation thereof, suffers from perversity, following a patent error on a fundamental principle of law or disregard to relevant materials or cognizance of irrelevant or non- germane determinants. A decision however, on the issues raised, is a sine qua non for a question of law to exist. A decision logically per- supposes an adjudication on the facets of the controversy involved and mere deferment thereof to a future point of time till the completion of the essential legal formalities would not ipso facto fructify into a verdict to generate a question of law to be appealed from. However, an omission to record a finding even on a conscious scrutiny of the materials bearing on the issues involved in a given case, may be termed to be one. Be that as it may, in any view of the matter,appellate forum though exercising a jurisdiction which otherwise may be co- ordinate with that of the lower forum, ought to confine its judicial audit within the layout of the adjudgment undertaken by the forum of lower tier. This is imperative, more particularly in the exercise of the appellate jurisdiction qua a decision on discretion rendered at an introductory stage of any proceeding, otherwise awaiting final adjudication on merits following a full contest. It is settled that no adjudication at the preliminary stage of a proceeding in a court of law ought to have the attributes of a final verdict so as to prejudge the issues at that stage, thereby rendering the principal determination otiose or redundant. This is more so, if the pleadings of the parties are incomplete at the threshold stage and the lower forum concerned seeks only to ensure a working arrangement vis-a-vis the dissension and postpone fuller and consummate appreciation of the rival assertions and the recorded facts and the documents at a later stage.

Bombay High Court

Sharma Realty Pvt. Ltd. And 2 ... vs Vinod Muktinath Sharma on 21 January, 2016

Bench: K.R. Sriram

ORDINARY ORIGINAL CIVIL JURISDICTION 




                                                                                         COMPANY APPEAL (L) NO.74 OF 2015




                                                                                 WITH

COMPANY APPLICATION (L) NO.114 OF 2015

   

                                                                           Citation:2016(2) ALLMR 427

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Whether lok adalat can decide case on merit on the ground that case is not contested?

We   have   carefully   perused   the   provisions   of   the   Legal 
Services   Authorities   Act,   1987   and   in   particular     Section   20   thereof. 
Prima facie, we are of the view that if there is no settlement arrived at 
before the Lok Adalat,  the obligation of the Lok Adalat is to return the 
record of the case to the concerned Court for disposal in accordance 
with law.   Prima facie, it appears to us that the Lok Adalat does not get 
jurisdiction to decide the case referred to it on merits on the ground 
that the case is not contested.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5105 OF 2014
Shri Rajabhau Damodar Raikar.

Vs
The Assistant Charity Commissioner No.2,
Pune Region, Pune, and Others.

CORAM  :  A.S. OKA & A.S.GADKARI, JJ 
DATED    :     18TH NOVEMBER 2014

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Whether Magistrate can acquit accused when complaint U/S 138 of NI Act is held to be not maintainable?

In all the circumstances above, the impugned judgment of the trial Magistrate holding that the complaint is not maintainable, is not sustainable. The impugned judgment and order is liable to be quashed and set aside. Though the trial Magistrate stated in the final order that the accused is acquitted, however, since the complaint has been held to be not maintainable, and since there was no decision on merits, the final order ought to have been that the complaint is dismissed as not maintainable and that the accused is discharged. It is, therefore, necessary that the matter is remanded to the trial Magistrate for being decided now on merits.

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 17 of 2014

Decided On: 02.04.2014

Reshmi Constructions Vs. Vs. Laxman Vithal Chunekar
  Vithal Chunekar

Hon'ble Judges/Coram:U.V. Bakre, J.

 Citation: 2014(2)BomCR(Cri)297,2014(5)MHLJ 537

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Supreme Court: Principle of Res judicata is not applicable between the two stages of the same litigation unless there is an adjudication on merits

From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation. 

Supreme Court of India

Erach Boman Khavar vs Tukaram Sridhar Bhat & Ors. on 12 December, 2013

Citation;AIR 2014 SC 544

Dipak Misra, J.

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