2002 Supreme(Bom) 820

IN THE HIGH COURT OF BOMBAY
Khanwilkar A.M., J.
Khurshed Banoo Murtaza Hasan, since
deceased through his L.Rs. others .... Appellants.
Versus
Vasant Mallikarjun Manthalkar since
deceased by his heirs others.... Respondents.
First Appeal No. 474 of 1988, decided on 9-8-2002.
Advocates appeared :
A.K. Abhyankar with Ajitkumar C. Shah with S.G. Vakil, for appellants.
K.Y. Mandlik, for respondent.

Headnote:Civil Procedure Code, 1908 - Sections 96(2), 99, Order XLI, Rule 23-A - Ex parte decision challenged - Decision in absence of defendant - Report of Commissioner had to be proved as per statutory procedure only - Trial Court accepted it as duly proved - Defendant did not appear to oppose it - Not proper - Matter need to be remanded to trial Court for de novo trial - Palpable and material irregularity committed by Court. - The trial Court in the present case has proceeded to decree the suit essentially relying on the Commissioner s report and on the assumption that the said report has been proved. For assuming that the said report has been proved, the trial Court perhaps took note of the fact that defendant did not raise any objection with reference to the Commissioner s report. Merely because no objection was raised by the defendant to the Commissioner s report that does not mean that the report stands proved on record. There is established procedure known to law by which the Commissioner s report can be proved on evidence. That has not been done in the present case. In such a situation, the trial Court could not have decided the suit on merits. For, in absence of any oral evidence or for that matter evidence by way of affidavit of any party, the issues as framed cannot be decided as having been established one way or the other. In the circumstances, there is palpable and manifest material irregularity committed by the trial Court in the conduct of the trial in the present case. Indubitably, this would warrant exercise of powers under Section 99 read with Order XLI, Rule 23- A of the Code so as to remand the case to the trial Court for a de novo trial.

       Civil Procedure Code, 1908 - Section 96(2), Order IX, Rule 13 - Scope of appeal - Application seeking to set aside ex parte decree rejected - Held dismissal of this application is no ground to bar right of appeal under Section 96(2), CPC - Three remedies available (1) under Order IX, Rule 13, (2) Appeal under Section 96(2) (3) Review application at same Court - If appeal under Section 96(2) is cancelled remedy under Order IX, Rule 13 is barred - But appeal under Section 96(2) does not get barred. - It is relevant to note that legislature has advisedly not made analogous provision as has been made in the form of explanation to Rule 13, so as to bar remedy of appeal if the application under Order IX, Rule 13 for setting aside the decree was to be rejected. It is well settled that defendants can take recourse to three different remedies, viz. (i) by way of application under Order IX, Rule 13 for setting aside the ex parte decree, (ii) by way of appeal against the ex parte decree under Section 96(2) of Civil Procedure Code and (iii) also by way of review before the same Court against the ex parte decree. In any case, it is well settled that concurrent remedy in the form of application under Order IX, Rule 13 as well as appeal under Section 96(2) of the Code against the ex parte decree is available to the defendant. However, the remedy under Order IX, Rule 13 is subject to the limitation that it cannot be perused once the appeal preferred by the defendant against the same decree is dismissed, except when it is withdrawn. But, no such limitation would apply to an appeal under Section 96(2) of CPC even if the application under Order IX, Rule 13 was rejected. In the latter case, the remedy is a substantive remedy provided against the ex parte decree under Section 96(2) of CPC which can be perused regardless of whether application for setting aside the ex parte decree under Order IX, Rule 13 is filed or for that matter rejected. However, it is only when the application under Order IX, Rule 13 is allowed that the appeal would become infructuous as the ex parte decree would be non est.

       Civil Procedure Code, 1908 - Section 96 (2), Order IX, Rule 13 - Ex parte decree - Appeal against - Setting-aside of ex parte decree - Application for - Concurrent remedies available to defendant - Dismissal of appeal - Remedy under Order IX, Rule 13 cannot be pursued - If application under Order IX, Rule 13 rejected - Even then remedy of appeal available. - It is well-settled that defendants can take recourse to three different remedies, viz (1) by way of application under Order IX, Rule 13 for setting-aside the ex parte decree, (ii) by way of appeal against the ex parte decree under Section 96 (2) of the Civil Procedure Code and (iii) also by way of review before the same Court against the ex parte decree. In any case, it is well-settled that concurrent remedy in the form of application under Order IX, Rule 13 as well as appeal under Section 96 (2) of the Code against the ex parte decree is available to the defendant. However, the remedy under Order IX, Rule 13 is subject to the limitation that it cannot be pursued once the appeal preferred by the defendant against the same decree is dismissed, except when it is withdrawn. But, no such limitation would apply to an appeal under Section 96 (2) of the Civil Procedure Code, even if the application under Order IX, Rule 13 was rejected. In the latter case, the remedy is a substantive remedy provided against the ex parte decree under Section 96 (2) of the C.P.C. which can be pursued regardless of whether application for setting-aside the ex parte decree under Order IX, Rule 13, is filed or for that matter rejected. However, it is only when the application under Order IX, Rule 13 is allowed that the appeal would become infructuous as the ex parte decree would be non-est.

       Civil Procedure Code, 1908 - Section 96(2), Order IX, Rule 13 - Appeal against ex parte decree. - Since appeal under Section 96(2) of CPC is a substantive remedy hence is maintainable even if application under Order IX, Rule 13 for setting aside decree was rejected.

       Evidence Act, 1872 - Sections 61, 3 and 9 - Ex parte decision challenged - Decision in absence of defendant - Report of Commissioner had to be proved as per statutory procedure only - Trial Court accepted it as duly proved - Defendant did not appear to oppose it - Nor proper - Matter need to be remanded to trial Court for de novo trial - Palpable and material irregularity committed by Court. - The trial Court in the present case has proceeded to decree the suit essentially relying on the Commissioner s report and on the assumption that the said report has been proved. For assuming that the said report has been proved, the trial Court perhaps took note of the fact that defendant did not raise any objection with reference to the Commissioner s report. Merely because no objection was raised by the defendant to the Commis- sioner s report that does not mean that the report stands proved on record. There is established procedure known to law by which the Commissioner s report can be proved on evidence. That has not been done in the present case. In such a situation, the trial Court could not have decided the suit on merits. For, in absence of any oral evidence or for that matter evidence by way of affidavit of any party, the issues as framed cannot be decided as having been established one way or the other. In the circumstances, there is palpable and manifest material irregularity committed by the trial Court in the conduct of the trial in the present case. Indubitably, this would warrant exercise of powers under Section 99 read with Order XLI, Rule 23- A of the Code so as to remand the case to the trial Court for a de novo trial.

       Civil Procedure Code, 1908 - Orders XVII, XVIII and XX - Judgment and decree. - Since in absence of any evidence, Court cannot decide suit merely on basis of pleadings hence passing of decree merely because commissioner s report was not objected by defendant by Court is illegal

       Civil Procedure Code, 1908 - Section 98, Order XLI, Rule 23-A - De novo trial - Order of remand - Powers of appellate authority - Decree passed relying upon pleadings and Commissioner s report - Absence of evidence either oral or by affidavits - Commissioner s report not proved - Manifest material irregularity committed by Trial Court in deciding suit on merits - Case remanded for de novo trial. - The Trial Court in the present case has proceeded to decree the suit essentially relying on the Commissioner s report and on the assumption that the said report has been proved. For assuming that the said report has been proved, the Trial Court perhaps took note of the fact that defendant did not raise any objection with reference to the Commissioner s report. Merely because no objection was raised by the defendant to the Commissioner s report that does not mean that the report stands proved on record. There is established procedure known to law by which the Commissioner s report can be proved on evidence. That has not been done in the present case. In such a situation, the Trial Court could not have decided the suit on merits. For, in absence of any oral evidence or for that matter evidence by way of affidavit of any party, the issues as framed cannot be decided as having been established one way or the other. In the circumstances, there is palpable and manifest material irregularity committed by the Trial Court in the conduct of the trial in the present case. Indubitably, this would warrant exercise of powers under Section 99 read with Order XLI, Rule 23-A of the Code so as to remand the case to the Trial Court for a de novo trial.