1. Defendant seeks to set aside an ex parte decree under Order IX Rule 13, CPC, following the dismissal of a prior application under Order IX Rule 7. (Para 1 , 7 )
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1963 Supreme(SC) 296
SUPREME COURT OF INDIA
B.P.Sinha, C.J.I., A.K.Sarkar, N.Rajagopala Ayyangar, JJ.
Arjun Singh
Versus
Mohindra Kumar
Case No. : 168 of 1968
Date of Decision : 12/13/63
Advocates Appeared: Agarwal R.S. : Dadachanji J.B. : Dutta B. : Goyal J.P. : Mathur O.C. : Narain Ravindra : Pathak G.S. : Setalvad M.C. : Talwar Y.
A finding in a summary interlocutory proceeding under Order IX, Rule 7 of the CPC does not operate as res judicata to bar a subsequent application under Order IX, Rule 13 to set aside an ex parte decree, as the two serve distinct procedural purposes.
Headnote:(A) Civil Procedure Code, 1908 - Order IX, Rules 6, 7, 9 and 13 - Order XVII, Rule 3 - Order XX, Rule 1 - Section 11 - Section 151 - Setting aside ex parte decree - Res judicata - Interlocutory orders - A decision or direction in an interlocutory proceeding under Order IX, Rule 7, which is summary in nature and designed to ensure the orderly conduct of proceedings by penalising dilatoriness, does not operate as res judicata to bar a hearing on the merits of an application to set aside an ex parte decree under Order IX, Rule 13. (Paras 15, 16)
(B) Inherent powers of the court under Section 151 cannot be invoked to override express provisions of the Code or to fill a perceived hiatus where the Code has already provided for all contingencies. (Paras 19, 20)
(C) The fact that multiple suits are tried jointly does not imply that a finding in a procedural application in one suit operates as res judicata for a similar application in another suit. (Para 21)
Facts of the case:
A defendant was absent on the date fixed for hearing, leading the court to proceed ex parte. The defendant filed an application under Order IX, Rule 7 to set aside the ex parte order and be heard as if present, which was rejected. Subsequently, an ex parte decree was passed. The defendant then applied under Order IX, Rule 13 to set aside the decree, but the application was dismissed by the trial court and the High Court on the ground that the earlier finding under Order IX, Rule 7 regarding the lack of good cause for non-appearance operated as res judicata.
Findings of Court:
The court found that the proceeding under Order IX, Rule 7 is summary and does not determine the merits of the controversy. Furthermore, if the hearing was already completed and the case was only adjourned for judgment, Order IX, Rule 7 was inapplicable, and the court lacked jurisdiction to decide the application on its merits, meaning the order could not operate as res judicata.
Issues: Whether a finding recorded in an application under Order IX, Rule 7 regarding the absence of "good cause" for non-appearance operates as res judicata to bar a re-inquiry into "sufficient cause" for non-appearance in a subsequent application under Order IX, Rule 13 to set aside an ex parte decree.
Ratio Decidendi: The court reasoned that Order IX, Rule 7 is an interlocutory measure to prevent the "setting back of the clock" and does not attain the finality required for res judicata. Order IX, Rule 13 is a specific statutory remedy intended to ensure that suits are decided after a hearing, provided due diligence is shown. Since the two rules serve different purposes and the former is summary, the latter cannot be barred by the former. Additionally, inherent powers under Section 151 cannot be used to bypass the specific statutory scheme provided under Order IX.
Result: Appeal allowed and the application filed by the appellant under Order IX, Rule 13 for setting aside the ex parte decree is remanded to the trial Judge for disposal on the merits in accordance with law.
Judgement Key Points
To set aside an ex parte order under Order IX Rule 7 CPC (where the court has adjourned the hearing of the suit ex parte), the defendant must appear at or before such adjourned hearing and assign good cause for previous non-appearance; if shown, the defendant may be heard as if they had appeared on the original date, subject to terms as to costs. (!) (!)
A prior finding of no good cause under Order IX Rule 7 does not bar reconsideration of sufficient cause for non-appearance on merits in a subsequent application under Order IX Rule 13 CPC to set aside an ex parte decree, as the proceedings under Rule 7 are interlocutory, summary in nature, do not determine issues finally, and lack finality like a decree. (!) (!) (!) (!)
Order IX Rule 7 applies only where the suit is adjourned specifically for hearing after proceeding ex parte under Rule 6; it does not apply if the hearing is already complete and the suit is merely adjourned for pronouncement of judgment under Order XX Rule 1, in which case no application under Rule 7 lies and the remedy post-decree is solely under Order IX Rule 13. (!) (!) (!)
Where suits are consolidated for joint trial (evidence in one treated as evidence in others), a finding on sufficient cause for non-appearance in one suit (e.g., under Order IX Rule 9 for dismissal for default) does not operate as res judicata for an application under Order IX Rule 13 in another suit, as each application pertains independently to its suit. (!)
An ex parte decree (not one on merits under Order XVII Rule 3) may be set aside under Order IX Rule 13 upon showing sufficient cause for non-appearance when the suit was called for hearing; such applications must be disposed on merits, with appeal lying against refusal under Order XLIII Rule 1(d). (!) (!) (!) (!)
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Table of Contents
2. Whether a finding of insufficient cause under Order IX Rule 7 operates as res judicata for an Order IX Rule 13 application, and the nature of the decree. (Para 7 , 18 , 21 , 22 )
3. Order IX Rule 7 is a summary interlocutory proceeding to ensure orderly conduct, not deciding merits or terminating litigation, thus differing from the statutory remedy under Order IX Rule 13. (Para 13 , 14 , 15 , 16 , 19 , 20 )
4. A decision in an interlocutory proceeding under Order IX Rule 7 does not operate as res judicata to bar a statutory application to set aside an ex parte decree. (Para 16 , 17 )
5. Appeal allowed; application under Order IX Rule 13 remanded to the trial judge for disposal on merits. (Para 23 )
6. Does a finding of no good cause in an application under Order IX Rule 7 operate as res judicata for a subsequent application under Order IX Rule 13?
No. Order IX Rule 7 is a summary interlocutory proceeding designed to ensure the orderly conduct of proceedings by penalizing dilatoriness. It does not determine the merits of the controversy or put an end to litigation, and therefore cannot bar the specific statutory remedy provided under Order IX Rule 13 for setting aside ex parte decrees. (Para 13 , 15 , 16 )
7. Can a court invoke inherent powers under Section 151 CPC to set aside an ex parte proceeding after the hearing is complete but before judgment is pronounced?
No. Inherent powers cannot override express provisions of the law. Order IX Rules 7 and 13 exhaustively cover all contingencies regarding a defendant's non-appearance. There is no legal hiatus between the completion of a hearing and the pronouncing of judgment that justifies the invocation of Section 151 to grant relief similar to Order IX Rule 7. (Para 19 , 20 )
8. Does a finding of insufficient cause for non-appearance in one suit operate as res judicata for another suit tried jointly?
No. Joint trial for the purpose of evidence does not merge separate suits into one. An application for restoration in one suit is pertinent only to that specific suit; findings therein do not constitute res judicata for independent applications in other suits, even if the factual grounds for non-appearance are identical. (Para 21 )
9. What distinguishes a decree passed under Order XVII Rule 3 from an ex parte decree?
A decree under Order XVII Rule 3 is passed when a party, having been granted specific time to produce evidence or perform a necessary act, fails to do so. If the court proceeds in the absence of a defendant who simply fails to appear on the hearing date, it is an ex parte decree, not a decree on merits under Order XVII Rule 3. (Para 22 )
N.R.AYYANGAR, J.
(1) THIS is an appeal by special leave filed by a defendant whose application under O. TX, r. 13, Civil Procedure Code to set aside an ex parte decree passed against him has been dismissed as barred by resjudicata.
(2) TO appreciate the points arising in the appeal it would be necessary to narrate the proceedings in three litigations between the parties. The ex parte decree that was passed against the defendant-who will hereafter be referred to as the appellant-and which he sought to be set aside in the proceedings which are the subject of the present appeal, was in Suit 134 of 1956 on the file of the court of Second Civil Judge, Kanpur. But long before this suit was filed, the two other proceedings were already pending. The first of them was a Small Cause suit by one Phula Kuer who sought to recover from the appellant Rs. 750.00 on the basis that she and the appellant were partners and by an arrangement between them he agreed to pay her Rs. 150.00 per month for her share of the profits which he had failed to pay. This was suit 1023 of 1951 on the file of the Small Cause court, Kanpur. The appellant entered on his defence and denied the partnership and his liability to pay the sum claimed. While this suit was pending, the appellant in his turn filed suit No. 20 of 1953 against Phula Kuer for fixing the fair rent of the premises in which he was carrying on the business, which Phula Kuer alleged was a partnership business, it being common ground that Phula Kuer was the owner thereof. While these two suits were pending Phula Kuer died on 13/07/1953 and thereafter one Rup Chand Jain filed suit 134 of 1956 already referred to, Rup Chand Jain died pending the appeal in the High court and is now represented by his heirs who have been brought on record. It would however be convenient to refer to the respondents as the plaintiff.
(3) SUIT 134 of 1956 which was filed on 19/05/1956 repeated the allegation that Phula Kuer had entered into the partnership with the appellant under which she was entitled to get for her share Rs. 150.00 per month. This share of profits, it was alleged, had been paid to her up to 14/10/1950 and that thereafter the appellant failed to pay the same. The plaintiff claimed to be the next reversioner of Phula Kuer and on that basis claimed that a sum of Rs. 4,200.00 was due to him. Besides this, he alleged that the appellant had been using the building belonging to Phula Kuer in regard to which he was liable to pay rent which was claimed at Rs. 150.00 per mensem. The plaintiff also claimed that he was entitled to evict the appellant from the premises. In the result, the reliefs claimed in the suit were a money decree for Rs. 9,390.00 on account of the items we have set out, and (2) eviction from the premises where the business was being carried on. Having regard to the contentions of the parties in the three suits, all of them were transferred by the District Judge, to the court of the Second Civil Judge, Kanpur on 4/08/1956, and on 23/08/1956 the Civil Judge passed an order directing that the suits 20 of 1953 and 134 of 1956 be consolidated for joint hearing, the evidence led in Suit 134 of 1956 being treated as evidence in the other suit as well. On 10/10/1956 the appellant filed his written statement to Suit 134 of 1956 in which he put forward the case which he had already been asserting viz., (1) absence of any partnership relationship between himself and Phula Kuer, and (2) that he was in possession as a tenant and could not be evicted because the requisite statutory conditions to enable the plaintiff to claim eviction, were not satisfied. Needless to add that there were several other defences which he urged to which it is unnecessary to refer. Thereafter there were questions raised as regards the adequacy of the court-fee paid by the plaintiff in Suit 134 of 1956, applications by the plaintiff to amend the plaint etc. These took place during the year 1957. The issues were set
