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2004 Supreme(Raj) 1219
Supreme Court
Honble N. SANTOSH HEGDE, J. Honble B. P. SINGH, J. Honble S. B. SINHA, J.
Bhanu Kumar Jain - Appellant
Versus
Archana Kumar and Another - Respondents
Appeal (Civil) 8246 of 2004
Decided On : December 17, 2004
Headnote:(a) C.P.C., Order 9 Rule 7 – Applicability of Order 9 Rule 7, where the hearing of the suit was complete and Court had adjourned a suit for pronouncing the judgment – Held – An application under Order 9 Rule 7 would not be maintainable. (Para 22)(b) C.P.C., Order 9 Rule 13, Order 43 Rule 1 – Whether First Appeal was maintainable despite the fact that an application under Order 9 Rule 13 of C.P.C. was dismissed? – Held – On dismissal of application under Order 9 Rule 13 defendant can prefer an appeal in terms of Order 43, Rule 1 – Once such an appeal is dismissed, Appellant cannot raise same contention in First Appeal – Case remitted to High Court for consideration. (Paras 43 & 44)
Order 9, Rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex-parte hearing was passed only in the event, the suit had not been heard as in a case where hearing of the suit was complete and the court had adjourned a suit for pronouncing the judgment, an application under Order 9, Rule 7 would not be maintainable. (Para 22)
When an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against, 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. (Para 44)
(2). The remedies available to a defendant in the event of an ex- parte decree being passed against him in terms of Order 9 Rule 13 of the Code of Civil Procedure (Code) and the extent and limitation thereof is in question before us in this appeal which arises out of a judgment and order dated 19.12.2002 passed by the High Court of Madhya Pradesh at Jabalpur in First Appeal No. 109 of 1986.
(3). The fact of the matter relevant for the purpose of this appeal is as under: One Shri N.N. Mukherjee was the owner of the premises in suit. He died leaving behind his wife Smt. Suchorita Mukherjee, (original defendant No. 1), son Shri P.P. Mukherjee, (original plaintiff) and daughter Smt. Archana Kumar, (original defendant No. 2).
(4). The family is said to be governed by Dayabhag School of Hindu Law. The original plaintiff filed a suit for partition in the year 1976. The original defendants filed their written statements. Respondent No. 2 herein, Surender Nath Kumar who is husband of Smt. Archana Kumar, Respondent No. 1 herein also filed a written statement and counterclaim by setting up a plea of mortgage by deposit of title deeds in respect of property in suit said to have been created by his mother in law (original defendant No. 1).
(5). Smt. Suchorita Mukherjee died on 15.9.1984 whereupon Respondent No. 1 herein was transposed as defendant No. 1; whereas Respondent No. 2 was transposed as defendant No. 2 therein. In the suit, the defendant No. 1 did not file any document. Respondent No. 2 also did not file any document in support of his purported counter claim.
(6). Having regard to the rival contentions raised in the pleadings of the parties, the following issues were framed:
"1(a) Whether partition of property owned by late Shri NN Mukherjee had taken place during his life time?
(b) If so, what property was available for partition?
(c) What were the shares allotted to the Plaintiff and the defendant No. 1 in the said partition?
(d) Whether the Plaintiff had separated from his father during his life time and was in separate possession of his share in the property?
2. Whether the Plaintiff is entitled to share and separate possession of his share in the property described in para 3 of the plaint?
3. Whether the plaintiff is entitled to claim mesne profits for the income derived by the defendant No. 1 from the share in the property? If so, at what rate and to what sum?
4. Whether the claim in suit is barred by limitation?
5. Whether the decision in Civil Suit No. 63-A of 1972 decided on 22.11.75 by IInd Civil Judge, Class II, Jabalpur will operate as res-judicata in the present case?
(a) Whether the suit is not maintainable as no relief has been sought against defendant No. 2?
(b) Whether at the request of Defendant No. 1, Defendant No. 3 spent Rs. 21000/- till 31.10.74 on construction and alteration of the suit property and the interest as on 31.10.74 came to Rs. 10, 000.00?
(c) Whether in order to secure the above amount defendant No. 1 deposited the title deeds of the suit property with defendant No. 2 and created a mortgage by deposit of title deeds in favour of defendant No. 3 and the suit property stands mortgaged with the defendant No. 3?
(d) Whether defendant No. 3 further spent Rs. 9500/- in the year 1976, 1977 and 1980 and defendant No. 2 spent Rs. 10500.00?
(e) Whether defendant No. 3 is entitled to get declaration shown as in para 6(A)(B)(C) of the written statement of defendant No. 3?
(f) Whether the mother of defendant No. 2 had made will in favour of defendant No. 2 and thus, after the death of mother defendant No. 2 became absolute owner and plaintiff has no right?
(g) Whether the plaintiff had already separated in the year 1951 and thus he has no right over the suit property?
6. Relief & Costs?"
(7). An additional issue was framed on 13.6.1985 and the case was fixed for evidence on 3.8.1985. On 3.8.1985 nobody was present on behalf of the defendant but the plaintiffs advocate was present whereupon, the cas
