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Madan Naikani Vs. Ranjit Mahakur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 134 of 1967
Judge
Reported inAIR1969Ori77; 35(1969)CLT46
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantMadan Naikani
RespondentRanjit Mahakur and ors.
Appellant AdvocateB. Naik, Adv.
Respondent AdvocateB. Mohapatra and ;R.K. Mohapatra, Advs.
Cases ReferredKhagesh Chandra v. Chandra Kanta
Excerpt:
.....though one of the conditions is satisfied, namely, that there was possibility of two inconsistent decrees being passed, whether the proviso has any application to a case where the decree has been passed in favour of some of the defendants on contest and ex parte against the other defendants......application under order 9, rule 13 c. p. c. is made by one of the defendants against whom the ex parte decree has been passed, then the court has ample discretion to set aside the decree against all the defendants. ordinarily the decree against all the defendants is to be set aside in the following cases:(1) where the decree is joint and indivisible:(2) where the decree proceeds on a ground common to all the defendants;(3) where the relief to which the applicant is entitled cannot effectively be given except by setting aside the decree against the other defendants also;(4) when the suit would result in two inconsistent decrees if the ex parte decree is not set aside against the other defendants.4. in this case if the decree passed in favour of defendants 1 and 2 is not set aside, there.....
Judgment:
ORDER

G.K. Misra, J.

1. Deceased Gangadhar, father of defendant No. 3, and Dibakar (defendant No. 1) were brothers. Plaintiff No. 1 purchased the A schedule lands for Rs. 400 and plaintiff No. 2 purchased the B schedule lands for Ks. 500 by two registered sale deeds on 30-12-64 from defendant No. 3. The case of the plaintiffs is that Gangadhar died in a separated status from defendant No. 1 and after his death his sole heir defendant No. 3 was in possession of the property. They accordingly prayed for declaration of their title and eviction of defendants 1 and 2 who were interfering with their possession. In the alternative there was a prayer that a decree for refund of consideration of Rs. 900 with interest is to be passed against defendant No. 3.

Defendant No. 3 filed written statement fully supporting the case of the plaintifts. Defendants 1 and 2 contested the suit alleging that Gangadhar died in a joint status with defendant No. 1 and the entire joint family property devolved on defendant No. 1 by survivorship. On 14-10-56 defendant No. 1 executed a mortgage bond in favour of defendant No. 2 who was in possession and ultimately he transferred the disputed lands to defendant No. 2 by a registered sale deed on 6-1-65. The case was posted to 23-6-66, for hearing. Defendant No. 3 did not appear and take any steps for adjournment of the case. She was accordingly set ex parte. Plaintiffs and defendants 1 and 2 appeared and gave evidence.

On 27-6-66 the judgment was delivered. The suit was dismissed on contest againsi defendants 1 and 2 and (decreed?) ex parte against defendant No. 3 with a direction that she would refund the consideration of Rs. 900 only.

On 28-7-66 defendant No. 3 filed an application for restoration of the suit. In that application she averred that she gave birth to a daughter 6 days before 23-6-66 when the case was heard and and that she had sufficient cause for non-appearance. The courts below have concurrently found that there was no sufficient cause and accordingly the application for restoration under Order 9, Rule 13 C. P. C. was dismissed. Defendant No. 3 has filed this Civil Revision againsi the confirming judgment of the lower appellate court.

2. Mr. Naik contended that the courts below exercised their jurisdiction with material irregularity in ignoring the important fact that defendant No. 1 himself admitted in his evidence that the petitioner gave birth to a daughter 6 days after the hearing though their original case was that the delivery was long after the hearing. In my view both the courts below exercised their jurisdiction with material irregularity in not properly appreciating the true scope of the case of defendant No. 3. In cross-examination defendant No. 3 (P. W. 1) replied thus:

'It is not a fact I gave birth to the child long after the hearing of the suit'.

This shows that even by 17-9-60 when the misc. case was heard defendants 1 and 2 were not clear in their mind as to when defendant No. 3 gave birth to a child. Defendant No. 3 is supported by O. P. W. 2 that she gave birth to a child 6 days before the date of hearing. Defendant No. 1 (O. P. W. 1) admitted in examina-tion-in-chief that defendant No. 3 gave birth to a child 6 to 7 days after the date of hearing. If really defendant No. 3 gave birth to a child 6 days after the date of hearing there was no reason for her to make a false statement that she gave birth to a child 6 days before the date of hearing. I am inclined to accept her version and hold that there was sufficient cause for her absence on 23-6-66.

But even assuming that she gave birth to a child 6 days after the date of hearing it makes no difference so far as the existence of the sufficient cause is concerned. Whether she gave birth to a child 6 days before or 6 days after hardly makes any difference and whichever version is true she would be unable to attend court on the date of hearing. The application under Order 9, Rule 13 C. P. C. must accordingly be allowed and the decree passed against her in favour of the plaintiffs to the effect that she would refund the consideration of Rs. 900 with costs is hereby set aside. The suit must be restored to file to determine the question whether she is liable to refund the consideration money.

3. The next question for consideration is whether the decree passed in favour of defendants 1 and 2 on contest is to be set aside. This necessitates examination of the scope of Order 9, Rule 13 C. P. C. So far as relevant and as amended in Orissa it runs thus:

'In any case in which a decree is passed ex parte against the defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served or that there was sufficient cause for his failure to appear when the suit was called on for hearing the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also'.

I have already said that there was sufficient cause for the failure of defendant No. 3 to appear on the date of hearing and accordingly the decree passed in favour of the plaintiffs against her is to be set aside.

The more difficult question for answer is whether the decree passed in favour of defendants 1 and 2 dismissing the suit of the plaintiffs is to be set aside. The proviso says that if the decree is of such a nature that it cannot be set aside only against the defendant making the application under Order 9, Rule 13 C. P. C., the court has discretion to set aside the decree against all or any of the other defendants. There is no controversy that if a decree is passed in favour of the plaintiff against some of the defendants on contest and against other defendants ex parte and if an application under Order 9, Rule 13 C. P. C. is made by one of the defendants against whom the ex parte decree has been passed, then the court has ample discretion to set aside the decree against all the defendants. Ordinarily the decree against all the defendants is to be set aside in the following cases:

(1) Where the decree is joint and indivisible:

(2) Where the decree proceeds on a ground common to all the defendants;

(3) Where the relief to which the applicant is entitled cannot effectively be given except by setting aside the decree against the other defendants also;

(4) When the suit would result in two inconsistent decrees if the ex parte decree is not set aside against the other defendants.

4. In this case if the decree passed in favour of defendants 1 and 2 is not set aside, there is possibility of two inconsistent decrees being passed in course of the same litigation and it might not also be possible to give the full relief to defendant No. 3 effectively. It is to be remembered that defendant No. 3 took the stand that the disputed lands belonged to her father who died in a separated status from defendant No. 1. If she establishes this case then she passed a valid title in favour of the plaintiffs and is not liable to refund the consideration of Rs. 900 decreed against her. If the decree passed in favour of defendants 1 and 2 is not set aside, there is likelihood of two inconsistent decrees being passed in the same suit with two different findings. The finding that Gangadhar died in a joint status with defendant No. 1 has already been recorded in favour of defendants 1 and 2. In the suit to be restored when defendant No. 3 would contest, there is possibility of a finding that Gangadhar died in a separated status from defendant No. 1. If the plaintiffs' suit would have been decreed on contest against defendants 1 & 2 and ex parte against defendant No. 3, on the restoration of the application under Order 9, Rule 13 C. P. C. the decree against defendants 1 and 2 must be set aside on the aforesaid analysis.

5. The further question for consideration is that even though one of the conditions is satisfied, namely, that there was possibility of two inconsistent decrees being passed, whether the proviso has any application to a case where the decree has been passed in favour of some of the defendants on contest and ex parte against the other defendants. On this point there is conflict of authority. The matter was examined in Khagesh Chandra v. Chandra Kanta, AIR 1954 Assam 183 (FB). The majority of the Full Bench were of opinion that by the plain language of the proviso it has no application to such a case. The minority took a different view. The entire law on the point had been fully discussed and all relevant authorities were reviewed. I am inclined to accept the majority view. The learned Chief Justice observed thus:

'But the rule or the proviso, in my opinion, does not confer any jurisdiction upon the court to reverse a decree dismissing the suit of the plaintiff as against some of the defendants imperilling thereby the interest of those defendants also by reopening the whole suit. This rule confers a privilege upon the defendants against whom an adverse decree has been passed ex parte and does not impose a disability on them, and that also at the instance of a co-defendant. In the absence of any appeal by the plaintiff to whose prejudice the decree has been passed on merits and under which the successful defendant has acquired a valuable right, I cannot hold that in a collateral proceeding at the instance of a co-defendant, the decree can be set aside.'

It is to be remembered that the proviso uses the expression 'the decree is ..... 'against' all or any of the other defendants'. The underlined (here in ' ') word emphasises the fact that the court has jurisdiction to set aside a decree passed against the other defendants. The proviso does not deal with a case where a decree is passed on contest in favour of some of the defendants. It is not necessary to refer to other decisions which have been examined fully in the Assam Case. On the aforesaid reasoning the decree passed in favour of defendants 1 & 2 cannot be set aside by operation of the proviso though there is likelihood of two inconsistent decrees being passed in course of the same litigation. The decree passed against defendant No. 3 only is set aside.

6. In the result, the orders of the courts below are modified to the extent that the ex parte decree passed against defendant No. 3 is set aside and the suit is restored to file so far as defendant No. 3 is concerned. The suit would riot be restored as against defendants 1 and 2. The Civil Revision is allowed in part against opposite parties 1 and 2 and dismissed against opposite parties 3 and 4 as indicated above. In the circumstances parties to bear their own costs throughout.


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