Supreme Court: Not Necessary To File Separate Application For Delay Condonation Along With Application To Set Aside Ex-Parte Decree

The application under Order 9 Rule 13 CPC

itself had all the ingredients of the application

for condonation of delay in making that

application. Procedure is after all handmaid of

justice.” {Para 13}

12. From the above cases, it is clear that there was no need

to file a separate application for condonation of delay in

the present case as well. The High Court has erred in

taking a hyper technical view and concluding that there

was violation of mandatory provision of law. Endorsing

such a view would effectively mean ignoring the purpose

of judicial procedure. The procedure cannot stand in

the way of achieving just and fair outcome. In the

present case, the Appellant acted bona fide and

diligently. His conduct does not violate any rule of law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SLP (C.) NO.11259 OF 2022 

DWARIKA PRASAD (D) THR. LRs. Vs  PRITHVI RAJ SINGH.

Author: VIKRAM NATH, J.

Citation:  2024 INSC 1030.

Dated: DECEMBER 20, 2024.

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What is difference in scope of enquiry in criminal revision and application for setting aside exparte order passed U/S 125 of CRPC application?

Before disposing of this revision, I am bound, to answer the contention raised by respondents counsel that the petitioner ought to have chosen the remedy available to him under proviso to Section 126(2) of the Code of Criminal Procedure, without approaching this Court for exercise of revisional powers. This Court had occasion to consider this very question in Muthusamy v. Kalaarasi, 1989 Mad LW (Crl) 168. The observations made therein read as hereunder :-

"It is true that the petitioner could have as well filed a petition in the trial Court itself to have the ex parte order set aside. It is quite so. Such an application could have been filed. The law permits three month's time for the petitioner to have the ex parte order set aside by the trial Magistrate. However, the revision has been filed in this Court within such period of limitation of three months and obviously this revision has not been filed to evade the limitation bar contained in Section 126(2), Crl.P.C. It has not been brought to my notice that a revision is barred against an ex parte order." {Para 7}

8. A similar view is taken by another learned single judge of this Court in A. Simon v. Venkattamal, 1991 Mad LW (Crl) 113. Learned Judge stated as follows :-

"This revision was filed against an ex parte order of maintenance in favour of the petitioner's aged mother, viz. respondent herein. It was contended for the petitioner that though proviso (2) of Section 126 of the Criminal Procedure Code enables the petitioner to file an application before the Magistrate and have the ex parte order set aside, it was open to the petitioner to forego that remedy and file a revision under section 397, Cr.P.C., wherein also, he could challenge the correctness of the order, in so far as it related to setting him ex parte.

Held :- The existence of a remedy under proviso (2) Section 126 Criminal Procedure Code to have the ex parte order set aside by showing good cause, does not preclude the respondent from challenging in a revision under section 397 of the Code, the legality of the order setting him ex parte. The scope of scrutiny in the two proceedings however, would be different. While in an application under Section 126(2) proviso the Court is to find out, on the oral and documentary evidence adduced for the purpose, whether the respondent has shown good cause for his inability to receive service or his failure to attend Court, in a revision under section 397, the Court's scrutiny is limited to the regularity of the proceeding and the correctness, legality and propriety of the order and the respondent cannot offer to show good cause, which he could do only under section 126."

 IN THE HIGH COURT OF MADRAS

Crl. R.C. No. 269 of 1992

Decided On: 27.11.1995

Loganathan Vs. Dhanalakshmi and Ors.

Hon'ble Judges/Coram:

T.S. Arunachalam, J.

Citation: 1996 Cri L J 1896 (Mad),MANU/TN/0149/1995.

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Whether court should set aside exparte decree if summons was received by alleged wife of party summoned?

 It is seen that the learned Appellate Court has not considered the fact that the suit summons was never served on the Petitioner but was accepted by Respondent No. 3 falsely claiming to be his wife. Due to this the Petitioner had no knowledge about the suit proceedings as well as the ex parte decree. This was the cause for the delay. Another important aspect of the service of the summons is that the same was accepted by Respondent No. 3 on behalf of the Petitioner. Hence there was want of knowledge on the part of the Petitioner about the suit proceedings as well as the ex parte decree resulting in the delay. The Petitioner has also relied upon judgment dated 06.07.2019 passed by the court of 7th Joint Civil Judge, Senior Division, Sangli in Regular Civil Suit No. 71 of 2018 in the suit for declaration and mandatory injunction against Respondent No. 2 declaring that the Petitioner and the Respondent No. 3 are not husband and wife and the Respondent No. 3 being permanently restrained from posing as the Petitioner's wife and also not to involve into any illegal transactions concerning the properties of the Petitioner. {Para 8}

9. For all the above reasons and in view of the above discussion and findings, the Writ Petition stands allowed in terms of prayer clauses (A) and (B).

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4010 of 2022

Decided On: 30.05.2022

Shamrao Piraji Kadam  Vs. Prakash Shivaji Chavan and Ors.

Hon'ble Judges/Coram:

Milind Narendra Jadhav, J.

Citation: MANU/MH/1735/2022

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Is it necessary to obtain permission to file a written statement after setting aside an exparte order?

 The order passed by the learned Trial Court condoning the delay and setting aside the exparte decree has been confirmed by the High Court by passing the impugned judgment and order. However, the High Court has observed that on setting aside the exparte

decree and restoring the suit to file, defendant Nos. 2 and

3 cannot be permitted to file the written statement.

Reliance is placed upon the decisions of this Court in the

case of Sangram Singh (supra) and Arjun Singh (supra).

However, it is true that as per the law laid down by this

Court in the case of Sangram Singh (supra) and Arjun

Singh (supra) when an exparte decree is set aside and the

suit is restored to file, the defendants cannot be relegated

to the position prior to the date of hearing of the suit when

he was placed exparte. He would be debarred from filing

any written statement in the suit, but then he can participate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff and address arguments. However, in our view, in the facts and circumstances of the case, the decisions of this Court in

the case of Sangram Singh (supra) and Arjun Singh (supra) shall not be fully applicable. In the present case by filing the CMA under Order IX Rule 13, appellants herein – original defendant Nos. 2 and 3 not only prayed to set aside the exparte decree but also prayed to allow them to file written statement. As observed above, there was no order and/or decision by the learned Trial Court on the second prayer, namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the expartedecree is set aside and the suit is restored to file and even

as per the decisions of this Court in the case of Sangram

Singh (supra) and Arjun Singh (supra) the defendants

cannot be relegated back to the position prior to the date

of hearing of the suit in that case also, it should have been

left to the learned Trial Court to consider the prayer of

defendant Nos. 2 and 3 whether to allow them to file

written statement or not, which was also prayed in CMA

No. 31/2018.

As observed hereinabove, there was no order passed by

the learned Trial Court on the specific prayer made by

defendant Nos. 2 and 3 to allow them to file written

statement. The learned Trial Court while passing order

dated 05.12.2019 condoned the delay and set aside the exparte

decree and the said order of condonation of delay and setting aside the exparte decree was the subject matter before the High Court. Therefore, the further observations made by the High Court that defendant Nos. 2 and 3 cannot be permitted to file their written statement can be said to be beyond the scope and ambit of the CMP filed before the High Court. Under the circumstances, the impugned judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement is

unsustainable and the issue/question whether defendant

Nos. 2 and 3 may be allowed to file their written statement

or not, shall have to be remanded to the learned Trial

Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3641 OF 2022

Sudhir Ranjan Patra (Dead) thr. LRs. & Anr. Vs Himansu Sekhar Srichandan & Ors.

Author: M. R. Shah, J.

Dated: 17th May, 2022

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Whether court can set aside exparte order passed in civil revision?

However, the Learned Counsel for the Respondents urged that, although there is a rule about restoration to file of a revision petition dismissed in default, there is no similar rule for setting aside an ex-parte order passed in a civil revision. Therefore, the contention is that this Court has no jurisdiction to set aside an ex parte order. In my opinion, a resort to exercise of inherent powers would be necessary to meet such a situation; otherwise we are led to the anomalous situation created by the view as expressed by Byers J. in A. Rirnxmwrti Iyer and Ors. v. T.A. Meenakshisundarammil and Anr. (Supra), as this Court would have the power to do damage to a party, but would be supposed not to undo it. 

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Misc. Civil Case No. 94 of 1963

Decided On: 12.12.1963

 Dhullchand Bhuraji  Vs.   Chainsingh Bachusingh and Ors.

Hon'ble Judges/Coram:

P.K. Tare, J.

Citation: 1965 JLJ 997,= ILR (1966) MP 169=1966 MP LJ 65, MANU/MP/0146/1963

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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

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