IMPORTANT POINT
Restoring an ex parte decree and deciding it without notice to all defendants is not permissible.

JUDGMENT :

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the plaintiffs against the final judgment and order dated 05.11.2014 passed by the High Court of Kerala at Ernakulam in R.F.A. No.541 of 2007 whereby the High Court allowed the appeal filed by defendant Nos. 3 & 4 (respondent Nos.1 & 2 herein) and set aside the judgment and decree dated 20.02.2007 passed by the sub-Court, Kottayam in O.S. No.337 of 2001.

3. In order to appreciate the short controversy involved in the appeal, few relevant facts need mention hereinbelow.

4. The appellants are the plaintiffs whereas the respondents are the defendants in the civil suit out of which this appeal arises.

5. The appellants filed a civil suit being O.S. No. 337/2001 against the respondents (defendants) in the Court of Principal Sub-Judge, Kottayam for specific performance of the agreement (Ex-A-1) for sale of suit properties to the appellants by the respondents (defendant Nos.1-4) for a total consideration of Rs.5,70,000/-.

6. According to the appellants, since defendant Nos. 1 and 2 (original owners of the suit properties) failed to sell the suit properties to the appellants as per the terms of the agreement despite taking advance money from the appellants and instead sold the suit properties to defendant Nos. 3 and 4, the appellants filed the suit against defendant Nos. 1 to 4 seeking specific performance of the agreement (Ex-A-1) against defendant Nos. 1 and 2.

7. The defendants (respondents) were served by substituted service. They, however, remained ex parte since inception. The Trial Court, therefore, on 27.02.2004 passed an ex parte decree against the defendants (respondents) jointly and severally.

8. Thereafter, defendant Nos. 3 and 4 applied for setting aside of the ex parte decree dated 27.2.2004 under Order 9 Rule 13 of the Code of Civil Procedure, 1908. The Trial Court, by order 20.12.2006, allowed the application and set aside the ex parte decree and restored the original suit to its file to decide the suit afresh on merits.

9. On remand, defendant Nos. 3 and 4 filed the written statement. So far as defendant Nos. 1 and 2 are concerned, they remained ex parte. The Trial Court, by judgment/decree dated 20.02.2007, again decreed the suit against all the four defendants jointly and severally.

10. Defendant Nos. 3 and 4 felt aggrieved and filed first appeal before the High Court. By impugned judgment, the High Court allowed the appeal and while setting aside the judgment/decree of the Trial Court again remanded the case to the Trial Court for fresh trial on merits. In the opinion of the High Court, the Trial Court did not decide the issues arising in the case properly and, therefore, the entire case needs a fresh consideration with a liberty to parties to adduce further evidence. The case was accordingly remanded to the Trial Court.

11. The plaintiffs felt aggrieved by the impugned judgment and have filed this appeal by way of special leave in this Court.

12. Therefore, the short question, which arises for consideration in this appeal, is whether the High Court was justified in remanding the case to the Trial Court for its de novo trial.

13. Heard Mr. C.S. Rajan, learned senior counsel appearing for the appellants and Mr. Thomas P. Joseph, learned senior counsel for respondent Nos. 3 & 4 and Mr. C.K. Sasi, learned counsel for respondent Nos. 1 & 2.

14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.

15. In our opinion, the remand order of the High Court to try the suit afresh on merits appears to be correct, though we uphold the remand order on additional grounds, which were not taken note of by the High Court and nor urged here. In our opinion, therefore, the remand of the case to Trial Court is otherwise called for.

16. It is not in dispute that all the four defendants (1 to 4) suffered ex parte decree on 27.02.2004 jointly and severally. It is also not in dispute that only defendant Nos.