Important pointWhen application u/O 9 R. 13 CPC is dismissed, defendant can only avail a remedy available thereagainst viz to prefer an appeal in terms of Order 43 Rule 1 CPC and once such an appeal is dismissed, appellant cannot raise same contention in First Appeal.

Headnote:(i) Civil Procedure Code, 1908—Order 9 Rule 13 and Order 43 Rule 1(d) and Section 96(2)—Remedies available to a defendant in event of an ex-parte decree—Whether the First Appeal was maintainable despite the fact that application under Order 9 Rule 13 ref=act:10444>CPC was dismissed? Yes—A right to question the correctness of decree in 1st appeal was a statutory right—Defendant would not be permitted to raise a contention as regards correctness or otherwise of order posting suit for ex-parte hearing and/or existence of a sufficient cause for non-appearance of defendant, it would be open to him to argue in first appeal on merits—High Court erred in holding that Trial Judge erred in law by proceeding ex-parte against defendants, after defendant’s application u/O 9 Rule 13 CPC was dismissed and appeal against that order under Order 43 Rule 1(d) CPC had also been dismissed—Respondents however could be heard as regards merits of plaintiff’s case in said appeal.
       Held : 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. In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein. 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. (Paras 23 to 25)
       We have, however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst, viz., to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex-parte hearing by the Trial Court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Choudhari that the ‘Explanation’ appended to Order 9, Rule 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury (supra), P. Kiran Kumar (supra) and Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others [2004 (9) Scale 270]. We, therefore, are of the opinion that although the judgment of the High Court cannot be sustained on the premise on which the same is based, the Respondents herein are entitled to raise their contentions as regards merit of the plaintiff’s case in the said appeal confining their contentions to the materials which are on records of the case. (Paras 33 to 35)
       (ii) Res Judicata—Principles of res-judicata apply in different stages of same proceedings. (Para 18)
       (iii) Civil Procedure Code, 1908—Order 9 Rule 7—Provision postulates an application till suit is at stage of hearing—When Court has adjourned suit for pronouncing the judgment, application u/O 9 Rule 7 CPC would not be maintainable. (Para 16)
       (iv) Res Judicata—Issue Estoppel—Distinction—Res judicata debars Court from exercising its jurisdiction—Doctrine of estoppel could be invoked against party—Doctrine of res judicata creates Estopper by Accord. (Para 27)

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

When an application under Order 9 Rule 13 is dismissed, the defendant’s only available remedy is to prefer an appeal under Order 43 Rule 1. Once such an appeal is dismissed, the defendant cannot raise the same contention in the subsequent First Appeal. This prevents conflicting decisions and maintains consistency in judicial proceedings (!) .
An appeal against an ex-parte decree can be filed on grounds such as the materials on record not entailing a decree in favor of the plaintiff or the suit being improperly posted for ex-parte hearing. The right to appeal exists even if an application under Order 9 Rule 13 was dismissed, but the scope of the appeal is limited to the correctness of the ex-parte order and the merits of the case (!) (!) .
The doctrine of res judicata applies across different stages of the same proceedings, and principles of issue estoppel can prevent a party from re-litigating issues already decided against them. This promotes finality and prevents unnecessary litigation on the same issues (!) (!) .
The right of a defendant to contest the merits of a case in an appeal is statutory and cannot be curtailed unless explicitly provided by law. A defendant can challenge the sufficiency of evidence or the jurisdiction of the court in a First Appeal, even if they did not raise such grounds earlier (!) .
The procedural rules specify that if a suit has been adjourned for judgment and the hearing is complete, an application under Order 9 Rule 7 would not be maintainable. This emphasizes the importance of timely and proper conduct of proceedings (!) .
The principles of issue estoppel and cause of action estoppel serve to prevent re-litigation of issues and causes of action that have been finally determined, ensuring judicial efficiency and consistency (!) .
The legal framework encourages early disposal of cases, especially when proceedings have been pending for a long duration, to avoid unnecessary delays and to promote justice (!) .
Even if a party did not explicitly raise a specific contention or did not produce certain evidence earlier, the scope of an appeal allows them to raise substantive issues on the merits, provided such issues are within the record and legally permissible (!) .
The court emphasizes the importance of strict interpretation of procedural provisions, especially those related to setting aside ex-parte orders, to uphold the integrity of judicial proceedings (!) .
The case was remitted to the High Court for fresh consideration on the merits, with a direction to dispose of the matter promptly, reflecting the importance of efficient judicial administration (!) .

These points collectively highlight the procedural nuances, statutory rights, and principles of finality and judicial discipline that govern appeals, applications, and the res judicata doctrine in civil litigation.

S.B. Sinha, J.—Leave granted.

2. The remedies available to a defendant in the event of an ex-parte decree being passed against him in terms of Order 9 Rule 13 of the Code of Civil Procedure (Code) and the extent and limitation thereof is in question before us in this appeal which arises out of a judgment and order dated 19.12.2002 passed by the High Court of Madhya Pradesh at Jabalpur in First Appeal No. 109 of 1986.

3. The fact of the matter relevant for the purpose of this appeal is as under:

One Shri N.N. Mukherjee was the owner of the premises in suit. He died leaving behind his wife Smt. Suchorita Mukherjee, (original defendant No.1), son Shri P.P. Mukherjee, (original plaintiff) and daughter Smt. Archana Kumar, (original defendant No.2). The family is said to be governed by Dayabhag School of Hindu Law. The original plaintiff filed a suit for partition in the year 1976. The original defendants filed their written statements. Respondent No.2 herein, Surender Nath Kumar who is husband of Smt. Archana Kumar, Respondent No.1 herein also filed a written statement and counterclaim by setting up a plea of mortgage by deposit of title deeds in respect of property in suit said to have been created by his mother in law (original defendant No.1).

4. Smt. Suchorita Mukherjee died on 15.9.1984 whereupon Respondent No.1 herein was transposed as defendant No.1; whereas Respondent No.2 was transposed as defendant No.2 therein. In the suit, the defendant No.1 did not file any document. Respondent No.2 also did not file any document in support of his purported counter claim.

5. Having regard to the rival contentions raised in the pleadings of the parties, the following issues were framed:

“1(a) Whether partition of property owned by late Shri NN Mukherjee had taken place during his life time?

(b) If so, what property was available for partition?

(d) Whether the Plaintiff had separated from his father during his life time and was in separate possession of his share in the property?

2. Whether the Plaintiff is entitled to 1/2 share and separate possession of his share in the property described in para 3 of the plaint?

3. Whether the plaintiff is entitled to claim mesne profits for the income derived by the defendant No.1 from the share in the property? If so, at what rate and to what sum?

4. Whether the claim in suit is barred by limitation?

5. Whether the decision in Civil Suit No. 63-A of 1972 decided on 22.11.75 by IInd Civil Judge, Class II, Jabalpur will operate as res-judicata in the present case?

(a) Whether the suit is not maintainable as no relief has been sought against defendant No.2?

(b) Whether at the request of Defendant No.1, Defendant No.3 spent Rs. 21000/- till 31.10.74 on construction and alteration of the suit property and the interest as on 31.10.74 came to Rs. 10,000.00?

(c) Whether in order to secure the above amount defendant No.1 deposited the title deeds of the suit property with defendant No.2 and created a mortgage by deposit of title deeds in favour of defendant No.3 and the suit property stands mortgaged with the defendant No.3?

(d) Whether defendant No.3 further spent Rs. 9500/- in the year 1976, 1977 and 1980 and defendant No.2 spent Rs. 10500.00?

(e) Whether defendant No.3 is entitled to get declaration shown as in para 6(A)(B)(C) of the written statement of defendant No.3?

(f) Whether the mother of defendant No.2 had made will in favour of defendant No.2 and thus, after the death of mother defendant No.2 became absolute owner and plaintiff has no right?

(g) Whether the plaintiff had already separated in the year 1951 and thus he has no right over the suit property?

6. Relief & Costs?”

6. An additional issue was framed on 13.6.1985 and the case was fixed for evidence on 3.8.1985. On 3.8.1985 nobody was present on behalf of the defendant but the plaintiff’s advocate was pres

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2004 Supreme(SC) 1599

Important pointWhen application u/O 9 R. 13 CPC is dismissed, defendant can only avail a remedy available thereagainst viz to prefer an appeal in terms of Order 43 Rule 1 CPC and once such an appeal is dismissed, appellant cannot raise same contention in First Appeal.

Cases Referred (13)