2024 Supreme(SC) 31

SUPREME COURT OF INDIA
B.R. Gavai, Dipankar Datta, Aravind Kumar, JJ.
Asma Lateef & Anr. - Appellants
Vs.
Shabbir Ahmad & Ors. – Respondents
Civil Appeal No. 9695 of 2013
Decided On : 12-01-2024

IMPORTANT POINTS
(1) Failure to present written statement – Court is not supposed to pass a mechanical judgment invoking Rule 10 of Order VIII, CPC merely on the basis of plaint, upon failure of a defendant to file a written statement.
(2) An erroneous decision cannot be labelled as having been passed ‘without jurisdiction’ – Lack of jurisdiction must be patent on face of decree to enable executing court to conclude that decree was a nullity.
(3) Decision rendered by a court on merits of a controversy in favour of plaintiff without first adjudicating on its competence to decide such controversy would amount to a decision being rendered on an illegal and erroneous assumption of jurisdiction.
(4) Judgment and Decree – It is only a “judgment” conforming to provisions of CPC that could lead to a “decree” being drawn up.

Headnote:

(A) Civil Procedure Code, 1908 – Order VIII Rule 10 – Indian Evidence Act, 1872 – Section 58 – Failure to present written statement – Rule 10 is permissive in nature, enabling trial court to exercise, in a given case, either of two alternatives open to it – Notwithstanding alternative of proceeding to pronounce a judgment, court still has an option not to pronounce judgment and to make such order in relation to suit it considers fit – Court is not supposed to pass a mechanical judgment invoking Rule 10 of Order VIII, CPC merely on the basis of plaint, upon failure of a defendant to file a written statement – Provision of Rule 10 of Order VIII, CPC is by no means mandatory in the sense that court has no alternative but to pass a judgment in favour of plaintiff, if defendant fails or neglects to file his written statement – Plaint in a suit is not akin to a writ petition where not only facts are to be pleaded but also evidence in support of pleaded facts is to be annexed – Since facts are required to be pleaded in plaint and not evidence, which can be adduced in course of examination of witnesses, mere failure or neglect of defendant to file written statement controverting pleaded facts in plaint, in all cases, may not entitle him to Judgment in his favour unless by adducing evidence he proves his case/claim. (Paras 15, 16, 17 and 18)

(B) Civil Procedure Code, 1908 – Section 47 – Objection to execution of decree – A decree that follows a judgment or an order would be inexecutable in eyes of law and execution thereof, if sought for, would be open to objection in an application under Section 47, CPC – Court must not only have jurisdiction in respect of subject matter of dispute for the purpose of entertaining and trying claim but also jurisdiction to grant relief that is sought for – Once it is conceded that jurisdiction on both counts is available, it is immaterial if jurisdiction is exercised erroneously – An erroneous decision cannot be labelled as having been passed ‘without jurisdiction’ – Lack of jurisdiction must be patent on face of decree to enable executing court to conclude that decree was a nullity – All irregular or wrong decrees would not necessarily be void – An erroneous or illegal decision which was not void, could not be objected in execution or incidental proceedings. (Paras 21, 35, 37 and 51)

(C) Civil Procedure Code, 1908 – Section 9 – Jurisdiction of Civil Court – Jurisdiction is entitlement of civil court to embark upon enquiry as to whether cause has been brought before it by plaintiff in a manner prescribed by law and also whether a good case for grant of relief claimed been set up by him – As and when such entitlement is established, any subsequent error till delivery of judgment could be regarded as an error within jurisdiction – Question of jurisdiction has to be determined at commencement and not at conclusion of enquiry – Decision rendered by a court on merits of a controversy in favour of plaintiff without first adjudicating on its competence to decide such controversy would amount to a decision being rendered on an illegal and erroneous assumption of jurisdiction. (Paras 38 and 41)

(D) Civil Procedure Code, 1908 – Order XIV Rule 2 – Preliminary issue – It would be inappropriate for a court to abstain from recording its prima facie satisfaction on question of maintainability, yet, proceed to grant protection pro tem on assumption that question of maintainability has to be decided as a preliminary issue under Rule 2 of Order XIV, CPC – That could amount to an improper exercise of power – If court is of the opinion at the stage of hearing application for interim relief that suit is barred by law or is otherwise not maintainable, it cannot dismiss it without framing a preliminary issue after written statement is filed but can most certainly assign such opinion for refusing interim relief – However, if an extraordinary situation arises where it could take time to decide point of maintainability of suit and non-grant of protection pro tem pending such decision could lead to irreversible consequences, court may proceed to make appropriate order justifying course of action it adopts. (Para 39)

(E) Civil Procedure Code, 1908 – Section 2(9) – Judgment and Decree – A Judgment, as envisaged in Section 2(9), CPC, should contain process of reasoning by which court arrived at its conclusion to resolve controversy and consequently to decree the suit – A “judgment”, if pronounced by a court under Rule 10 of Order VIII, CPC, must satisfy requirements of Rule 4(2) of Order XX, CPC, and thereby conform to its definition provided in Section 2(9) thereof – It is only a “judgment” conforming to provisions of CPC that could lead to a “decree” being drawn up – Any verdict of a competent judicial forum in form of a judgment/order that determines rights and liabilities of parties to proceedings, must inform parties what is outcome and why one party has succeeded and not other. (Paras 43, 44, 45 and 47)

Facts of the case:

Respondents 1 to 3 had filed an objection under section 47 of Code of Civil Procedure, 1908 in an execution application filed before Executing Court by appellants. It was urged, based on the case pleaded therein, that decree put to execution was inexecutable. Executing Court, on 19th March, 2008, allowed objections of the respondents 1 to 3, resulting in dismissal of execution application.

Sole question of law which arises for a decision in this appeal is: –

Whether order dated 5th August, 1991 suffered from a jurisdictional error so grave that decree drawn up subsequently is incapable of execution by Executing Court and an objection that it is inexecutable was available to be raised under Section 47, CPC by respondents 1 to 3?

Findings of Court:

Court Receiver shall provide accounts of income and expenditure in respect of suit property to appellants as well as respondents 1 to 3 within two months and any claim of either of parties would be open to be raised and addressed in accordance with law.

Result : Appeal dismissed.