A regular appeal against an exparte decree under Section 96(2) r/w Order 41 of CPC is maintainable, despite prior dismissal under Order 9 Rule 13, focusing on merits without contradicting earlier findings.

JUDGMENT :

A. BADHARUDEEN, J.

Defendant in O.S.No.161 of 2011 on the files of the Sub Court, Nedumangad, has filed R.F.A.No.257/2015, challenging the decree and judgment in the above suit dated 03.12.2011, arraying plaintiff in the suit as the respondent.

2. Heard the learned counsel for the appellant/defendant and the learned counsel for the respondent/plaintiff.

3. Parties in this appeal will be referred to as to their status before the trial court as `plaintiff’ and `defendant’, hereafter.

4. In this case exparte decree dated 03.12.2011 is put under challenge. Exparte decree has been passed due to failure on the part of the defendant to appear before the trial court. Thus the legal question arise are:

i) Whether an exparte decree is appealable?

ii) Whether an appeal under Section 96 (2) r/w Order 41 of the Code of Civil Procedure (`CPC’ for short) is maintainable even after dismissal of an application filed under Order 9 Rule 13 of CPC?

iii) What are the matters of consideration in a petition filed under Order 9 Rule 13 of CPC? Vis-a-vis in an appeal filed under Section 96 (2) r/w Order 41 of CPC challenging an exparte decree?

5. Coming to the question as to whether a regular appeal under Section 96 (2) r/w Order 41 of CPC is maintainable, if maintainable, even after dismissal of petition filed under Order 9 Rule 13 of CPC etc; in the decision reported in [AIR 2005 SC 626] , Bhanu Kumar Jain v. Archana Kumar and another , a three Judge Bench of the Apex Court had occasion to consider the remedies available to a defendant when decree was passed exparte with reference to Order 9 Rule 13 of CPC as well as under Section 96 (2) of CPC. Where in paragraph Nos.37 and 38 the Apex Court held as under:

“37. We have however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.

38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the Trial Court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96 (2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in a such an appeal. We, however, agree with Mr. Choudhari that the Explanation 39; appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury (supra), P.Kiran Kumar (supra) and Shyam Sundar Sarma v. Pannalal Jaiswal and Others [2004 (9) SCALE 270].”

6. It is true that in a two Bench decision of the Apex Court reported in [2003(2) KLT 384(SC)], Janakiramaiah Chetty v. Parthasarathi , to consider the scope and object of Order 17 Rule 2 Explanantion and Rule 3 along with Order 9 Rule 13 of CPC and in paragraph 8 the Apex Court held that the Explanation permits the court in its discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such party fails to appear on