Himachal Pradesh Co-operative Marketing and Development Federation Ltd. vs MAFCO Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 788

IN THE HIGH COURT OF BOMBAY
Dr. Pratibha Upasani, J.
Himachal Pradesh Co-operative Marketing and
Development Federation Limited Petitioners.
Versus
M/s. MAFCO Limited..... Respondents.
Writ Petition No. 5389 of 1986 along with Civil Application No. .... of 1999, decided on 13-10-1999.
Advocates appeared :
Mrs. Kiran Bhagalia, for the petitioners/original plaintiffs.
M.V. Sali, for the respondents/original plaintiffs.

Headnote:Order IX and Rule 13-Application to set aside ex parte decree - Case of plaintiffs and case of defendants weighed and assessed by Judge on touch stone of preponderance of probabilities after examining plaintiffs substantive evidence in Court and defendants contentions raised in their written statement-Such decree cannot be called ex parte decree but judgment on merits-Remedy in the circumstances was to file an appeal.The defendants had filed their Written Statement, which was before the Court. The same was considered by the Court; Issues were framed and settled by the Court. Finding against each and every issue was recorded by the Court, after examining the plaintiffs substantive evidence in the Court and the defendants contentions raised in their Written Statement. Thus, the case of the plaintiffs and the case of the defendants was weighed and assessed by the Judge on the touch stone of preponderance of probabilities. It was only thereafter that the judgment was delivered by the Judge and decree came to be passed. Such a decree, by any stretch of imagination, could not be called an "ex parte" decree and, therefore, application made by defendants for setting aside said decree alleging it to be ex parte was not maintainable.
       Order IX, Rule 13-Rejection of application under Order IX, Rule 13 for setting aside ex parte decree - Recourse to writ petition under Article 226 not justified-Remedy by way of appeal from order of rejecting defendants application to set aside ex parte decree is provided under Order XLIII, Rule 1 (d).
       Order IX, Rule 13-Ex parte decree-Application to set aside-Examination of plaintiff-Evidence and defendants contention in written statement-Assessment of Court - Not a ex parte decree but a judgment -Remedy lies to file an appeal.- The defendants had filed their Written Statement, which was before the Court. The same was considered by the Court; Issues were framed and settled by the Court; Finding against each and every issue was recorded by the Court, after examining the plaintiffs substantive evidence in the Court and the defendants contentions, raised in their Written Statement. Thus, the case of the plaintiffs and the case of the defendants was weighed and assessed by the learned Judge on the touch stone of preponderance of probabilities. It was only thereafter that the Judgment was delivered by the learned Judge and decree came to be passed. Such a decree, by any stretch of imagination, be called an ex parte.
       Order IX, Rule 13-Applica~n under Order IX, Rule 13 for setting aside ex parte decree-Rejection of Application Remedy sought by filing writ petition not tenable-Appeal lies under Order XLIII, Rule 1(d) against rejection of application to set aside ex parte order.- The learned Judge then framed issues and after examining the plaintiffs witness (Mr. K.Y. Patil) and after discussing the contentions raised by the defendants in their Written Statement, gave finding against each and every issue and then decreed the suit on merits. In Courts opinion, therefore, the said judgment is a judgment given on merits of the case and it cannot be said that the decree was passed ex parte.

Judgement Key Points

Key Points: - The defendants filed a Written Statement but did not appear; the court still considered their submissions and evidence, resulting in a judgment on merits, not an ex parte decree (!) (!) . - When a court examines plaintiff evidence and defendant arguments, and gives findings on all issues before passing a decree, it is a judgment on merits and cannot be set aside as ex parte (!) (!) . - If an application under Order IX Rule 13 to set aside an ex parte decree is rejected, the remedy is an appeal under Order XLIII Rule 1(d), not a writ petition (!) (!) .

What is the remedy available when a party does not appear in court but has filed a written statement?

What is the nature of a decree passed after considering both parties' submissions and evidence?

What is the procedure for challenging a decree that is not ex parte?

JUDGMENT - Dr. PRATIBHA UPASANI, J.:---This writ petition is filed by the petitioners/original defendants, being aggrieved by the Order dated 13th August, 1986, passed by the Vth Jt. Civil Judge, Senior Division, Pune, dismissing the application of the petitioners for setting aside the decree passed in Special Civil Suit No. 601 of 1977.

2. Few facts, which are required to be stated, are as follows:

The respondents, namely, M/s. MAFCO Limited, who were original plaintiffs, had filed suit against the present petitioners, namely, Himachal Pradesh Co-operative Marketing and Development Federation Limited, to recover a sum of Rs. 1,63,134.50 Ps. and costs. The plaintiff Company entered into an agreement with the defendants for purchase of quality seeds of potatoes from the defendants under the terms and conditions embodied in the letter dated 7th October, 1974. The defendants were, however, unable to supply the required quality potato seeds. The plaintiffs' grievance was that the potato seeds supplied by the defendants were of substandard quality and were of rotten quality. The plaintiffs abandoned the damaged seeds and submitted a detailed statement of damaged, spoiled and rotten quantities of seeds which was annexed to the plaint. According to the plaintiffs, the defendants committed breach of the terms and conditions of the agreements with regard to the supply of potato seeds. Hence the suit.

3. The defendants filed their Written Statement and took various defences. It should be noted at this stage that though the defendants had filed their Written Statement, they did not appear at the time of hearing of the suit. Only the plaintiffs' witness Mr. K. V. Patil deposed on behalf of the plaintiffs, whose evidence went unchallenged as the defendants were not present. The defendants also did not examine any witness on their behalf. The learned IVth Joint Civil Judge, Senior Division, Pune, accepted the version of the plaintiffs and passed the impugned judgment and order decreeing the plaintiffs' suit.

4. Being aggrieved by the said judgment and order passed by the learned IVth Joint Civil Judge, Senior Division, Pune, the defendants filed Misc. Application No. 18 of 1984 for setting aside the said decree, making various submissions in the said application, justifying their absence at the time of hearing of the suit. The learned Vth Joint Civil Judge, Senior Division, Pune, after hearing both the sides, however, rejected the said application of the defendants. It is against this order, that the present writ petition has been filed.

5. At the time of admission of the present writ petition, interim stay in terms of prayer clause (b) of the petition, staying the execution, operation and implementation of the decree in Special Civil Suit No. 601 of 1977 was granted on the petitioners' depositing in the lower Court, a sum of Rs. 50,000/-, which the petitioners have done. Today, Civil Application taken out by the respondents for withdrawing the said amount of Rs. 50,000/- is also on the Board and is being heard along with the present writ petition.

6. Mrs. Bhagalia, appearing for the petitioners argued that the suit should not have been decreed ex-parte on 17th June, 1983. She further argued that the petitioners' Head Office is at Simla in Himachal Pradesh, that their Advocate Mr. Vaidya expired on 30th November, 1980 and that the petitioners' officer did not know about it. She, however, admitted that notice of hearing of the suit was sent to the petitioners on 21st February, 1983 and that thereafter, the petitioners, with difficulty traced the record and instructed Mrs. Bhagalia, who was junior of Mr. S.K. Vaidya, to appear in the matter. Mrs. Bhagalia further submitted that the order of the lower Court was improper and wrong on principles of law and justice and hence it should be set aside and the matter be heard on merits and be disposed of in accordance with law.

7. Mr. Sali, appearing for the respondents canvassed two points before me. Mr.

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