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Govindan Asari Kesavan Asari Vs. Sankaran Asari Balakrishnan Asari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 83 of 1955
Judge
Reported inAIR1958Ker203
ActsCode of Civil Procedure (CPC) , 1908 - Sections 13; Evidence Act, 1872 - Sections 17
AppellantGovindan Asari Kesavan Asari
RespondentSankaran Asari Balakrishnan Asari
Appellant Advocate A.B. Periera, Adv.
Respondent Advocate K.S. Rajamoni, Adv.
DispositionAppeal dismissed
Cases ReferredWazir Sahu v. Munshi Das
Excerpt:
.....for recovery of certain amount by appellant - suit based upon foreign judgment in which ex-parte decree passed against respondent - as per provisions foreign judgment binding in india only when it is conclusive and final and passed on merits of claim - judgment given for default in appearance of defendants could not be considered as given on merits - appeal failed and dismissal of suit upheld. - - the defendants on whom the summons had been duly served, failed to appear in court and the suit was decreed ex parte in favour of the plaintiff on 26th may 1949. ext. the question referred to the full bench related to a case where the defendant had failed to appear and judgment was given merely on the strength of the plaint allegations and without any trial on evidence. the section..........to be passed as a result of the fraud practised by the plaintiff and that the suit based on such a decree passed by a foreign court cannot be made the basis of any claim against the defendants in thy present suit. the trial court repelled all these contentions and definitely found that the defendants were residing within the jurisdiction of the jaffna court at the time of the passing of the decree ext. a and that the plaintiff had not been guilty of any fraud in obtaining that decree.it was further found that the decree ext. a must be deemed to be a decree passed onthe merits of the plaintiff's claim and that therefore the present suit based on that decree is maintainable. accordingly, a decree was passed in favour of the plaintiff. the 2nd defendant took the matter in appeal before the.....
Judgment:

K. Sankaran, J.

1. This Second Appeal raises the question of maintainability of the plaintiff's suit which is based OP. a foreign judgment. The parties to the suit were residing within the jurisdiction of the Court of Requests at Jaffna in Ceylon in the year 1949. The plaintiff instituted a suit against the defendants in the said Court for recovery of a certain amount alleged to be due to him. The defendants on whom the summons had been duly served, failed to appear in Court and the suit was decreed ex parte in favour of the plaintiff on 26th May 1949. Ext. A is copy of that decree. Some time after the passing of that decree, the defendants returned to their native place Navai-kulam which is within the jurisdiction of the Attingal Munsiffs Court.

The plaintiff thereupon instituted the present suit O. S. No. 598/1950, in the Attingal Munsiffs Court for recovery of the amount due to him under the decree of the Jaffna Court, as evidenced by Ext'. A. In resisting the suit the defendants contended that they were not residing within the jurisdiction of the Jaffna Court when the plaintiff obtained the decree Ext. A against them, that the decree happened to be passed as a result of the fraud practised by the plaintiff and that the suit based on such a decree passed by a foreign Court cannot be made the basis of any claim against the defendants in thy present suit. The trial Court repelled all these contentions and definitely found that the defendants were residing within the jurisdiction of the Jaffna Court at the time of the passing of the decree Ext. A and that the plaintiff had not been guilty of any fraud in obtaining that decree.

It was further found that the decree Ext. A must be deemed to be a decree passed onthe merits of the plaintiff's claim and that therefore the present suit based on that decree is maintainable. Accordingly, a decree was passed in favour of the plaintiff. The 2nd defendant took the matter in appeal before the Trivandrum District Court. The question of the maintainability of the suit was alone argued in the above appeal. On that question the lower appellate Court differed from the conclusion of the trial Court and held that the decree Ext. A was not one passed on the merits of the claim and that on the basis of such a decree the plaintiff is not entitled to maintain the present suit. Consistent with that finding the trial Court's decree was reversed and the plaintiff's suit was dismissed. He has therefore come up in Second Appeal.

2. The rule as to the conclusive nature of a foreign judgment, is enunciated in Section 13 of the Code of Civil Procedure. The opening portion of that Section states :

'A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title.'

The exceptions to this rule are enumerated in Cls. (a) to (f) of the same section and they are the following :

'(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.'

Defendants' resistance to the plaintiff's suit is based on exception (b). If the decree Ext. A is not one passed on the merits of the case, it is obvious that the decree cannot conclusively establish the plaintiff's claim so as to entitle him to maintain the present suit against the defendants on the basis of that decree. That this decree was passed ex parte admits of no doubt. In fact, it is expressly stated in Ext. A that it was because the defendants were absent, although they were duly served with summons, that a decree was passed against them as claimed by the plaintiff. There appears to have been much controversy on the question as to whether an ex parte decree can be deemed to be a decree passed on the merits of the case as contemplated by Cl. (b) of Section 13 of the ie of Civil Procedure.

In Janno Hassan v. Mohammed ohuthu, AIR 1925 Mad 155 (A) and in Nagoor Meera v. Mahadu Meera, AIR 1926 Mad 259 (B), itwas ruled that in a case in which there is no appearance at all for the defendant and a decree is passed ex parte, it must be deemed thatthe decree was passed on the merits. In the-first of these cases an apparently contrary, view taken by the Privy Council in Keymer v. Viswanatham Reddi, AIR 1916 PC 21 (C), was noticed but the scope of that decision was explained to be limited to cases where a defence had been raised and a decree was passed? without, for some reason or other, adjudicating upon such defence. The foreign judgment which the Privy Council had to consider was one passed under the following circumstances.

A suit for money was brougnt in an English Court against the defendant as partner of certain firm. He denied that be was a partner and also that any money was due from him. Thereupon he was served with certain interrogatories to be answered. On his omission to answer them, his defence was struck off and judgment entered for the plaintiff. On the basis of that judgment passed by the English Court, another suit was instituted at Madras-which was the place of residence of the defendant. The question for decision was whether the judgment of the English Court was one not given on the merits as contemplated by exception (b) to Section 13 of the C. P. C. The answer of the Privy Council was that the decision was not on the merits, for the reason that the contention raised in the action had not in fact been the subject of direct adjudication by the English Court.

The scope of the decision of the Privy Council was considered by a Full Bench of the Madras High Court in Mohamed Kassim &Co. v. Seeni Pakir, AIR 1927 Mad 265 (D).The specific question that the Full Bench was-called upon to answer was 'Does a suit lie in this country on a foreign judgment given, on default of appearance of the defendant, on the plaint allegations without any trial on evidence'. All the three learned Judges of the Full Bench answered the question in the negative. They were also of the view that the matter was fully covered by the decision in AIR 1916 PC 121 (C), and in support of that view the following passage from the Privy Council judgment was quoted :

'He (the defendant) was treated as though he had not defended and judgment was given upon that footing. It appears to their Lordships that no such decision as that can be regarded as a decision given on the merits of the case within the meaning of Section 13, Sub-section (b).'

The Full Bench drew the inference that the implication in this passage is that the foreign judgment would be inconclusive had the suit been never defended at all. With great respect it has to be pointed out that this is reading too much into the Privy Council decision in Keymer v. Viswanatham Reddi, (C). In that case it has not been laid down as a general proposition that in a case where the defendant has not entered appearance there can be no decision on the merits. The scope of that decision could not also be restricted to cases where the defendant had entered appearance but his contentions had not been adjudicated upon, as was attempted to be done in AIR 1925 Mad 155 (A).

The extreme view taken in that case thatall decrees passed on account of the non-ap-pearance of the defendants must be deemed to be decrees passed on merits, was expresslydissented from by the Full Bench in AIR 1927 Mad 265 (D). The Full Bench was not also directly concerned with the question of the possibility of the Court giving a judgment on the merits of the case where the defendant fails to appear. The question referred to the Full Bench related to a case where the defendant had failed to appear and judgment was given merely on the strength of the plaint allegations and without any trial on evidence. In answering the question in the negative, the learned Judges were careful to emphasise both the aspects of such a decree viz., the default of appearance of the defendant and also the absence of any trial on evidence.

Krishnan, J. who was a party to that decision, further clarified the matter by pointing out the possible distinction 'between a case in which a decree is given without any trial whatever and a decree in a case in which, even though the defendant did not appear, the matter was tried in full on evidence and the plaintiff proved his case'. His view was in favour of the position that the latter class of cases could be said to have been decided on the merits and thus falling outside the ambit of Sub-section (b) of Section 13. The decisive factor was taken to be that the judgment must be based on evidence in order that the decision may be said to be on the merits of the case. This was made clear by Curgenveh, J., who was also a party to the Full Bench decision, by making the following statement;

'I agree that the observations of the Privy Council in Keymer's cover a case of this nature in which no evidence was given and therefore the decision was not upon the merits.'

In Arunachalam Chettiar v. Muhammad Salihu, AIR 1928 Mad 133 (E) and in P. L. S. Firm, Colombo v. Sulaiman, AIR 1930 Mad 149 (F), also the question that had to be decided was whether ex parte decree passed by the Courts in Ceylon could be made the basis of suits instituted in India by virtue of the provision contained in Section 13 of the Code of Civil Procedure of India. In both these cases, it was found that the decrees by the Ceylon Courts were passed merely on account of the default of appearance of the defendants on whom summons had been duly served, and that such decrees were passed without any evidence being recorded in proof of the plaint claims. Accordingly, on the strength of the Full Bench decision in AIR 1927 Mad 265 (D), it was ruled in these cases that the decrees passed by the Ceylon Court were not decrees passed on the merits of the case and that therefore they could not be made the basis of suits in India.

3. There is another set of cases where a contrary view was taken. In Dr. Kulwant v. Dhan Raj Dutt, ILR 16 Lah 768: (AIR 1935 Lah 396) (G), it was ruled' that the question whether an ex parte decree passed by a foreignCourt is a decree passed on the merits of the case, must be decided in accordance with the rules governing the procedure of such foreign Court. In that case judgment was passed by the High Court of Justice in London after service on the defendant of the writ of summons supported by an affidavit setting forth the grounds of the plaint claim against the defendant as required by the rules of procedure governing that Court. The defendant did not enter appearance or contest the claim and hence an ex parte decree was passed in favour of the plaintiff. That decree was taken to be a decree on the merits of the case for the purpose of Section 13 of the Indian Civil Procedure Code and the reason was stated as follows :

'A judgment of the High Court of Justice in England against a defendant in India who had been duly served with a writ of summons but who did not enter appearance or deliver a defence, must be regarded as a judgment passed on the merits of the case when the proceedings had been strictly in accordance with the rules of the Supreme Court.'

It was also pointed out that the words 'judgment on the merits' have been used in S. 13 of the Code of Civil Procedure in contradistinction to a decision on a matter of form or by way of penalty and a case must be taken to have been decided on the merits where the defendant had ample opportunity to raise a defence and voluntarily refrained from raising such a defence and the judgment was passed ex parte. In Ishri Prasad v. Shri Ram, ILR 50 All 270: (AIR 1927. All 510) (H), also the view taken was that the expression 'judgment on the merits' is used in Section 13 of the Code of Civil Procedure in contradistinction to a judgment by way of penalty. The same view was taken in AIR 1925 Mad 155 (A), and in Mohammad Kunju v. Abdul Kassim Lebba, 1943 Trav LR 276 (I).

In the second of these cases it was held that the question whether a foreign judgment was given on the merits would depend upon the procedure adopted by the foreign Court and that the conduct of the defendant in not denying the claim should be taken as a implied admission of the claim in the suit. We have to respectfully differ from all these propositions. In construing Section 13 of the Indian Civil Procedure Code we have to be guided by, the plain meaning of the words and expressions I used in the section itself, and not by other extraneous considerations. There is nothing in; the section to suggest that the expression judgment on the merits has been used in contra- i distinction to a decision on a matter of form 1 or by way of penalty.

The section prescribes the conditions to be satisfied by a foreign judgment in order that it may be accepted by an Indian Court as conclusive between the parties thereto or between parties under whom they or any of them litigate under the same title. One such condition is that the judgment must have been given on the merits of the case. Whether thejudgment is one on the merits, must be apparent from the judgment itself. It is not enough if there is a decree or a decision by the foreign Court. In fact the word 'decree' does not find a place anywhere in the section. What is required is that there must have been a judgment. What the nature of that judgment should be is also indicated by the opening portion of the section where it is stated that the judgment must have directly adjudicated upon questions arising between the parties.

The Court must have applied its mind to that matter and must have considered the evidence made available to it in order that it may be said that there has been an adjudication upon the merits of the case. It cannot be said that such a decision on the merits is possible only in cases where the defendant enters appearance and contests the plaintiff's claim. Even where the defendant chooses to remain ex parte and to keep out, it is possible for the plaintiff to adduce evidence in support of his claim (and such evidence is generally insisted on by the Courts in India), so that the Court may give a decision on the merits of his case after a due consideration of such evidence instead of dispensing with such consideration and giving a decree merelv on account of the default of appearance of the defendant.

In the former case the judgment will be one on the merits of the case, while in the latter the judgment will be one not on the merits of the case. Thus it is obvious that the non-appearance of the defendant will not by itself determine the nature of the judgment one way or the other. That appears to be the red-son why Section 13 does not refer to ex parte judgments falling under a separate category by themselves. A foreign Court may have its own special procedure enabling it to give a decision against the defendant who has failed to appear in spite of the summons served on him and in favour of the plaintiff, even without insisting on any evidence in support of his claim in the suit.

Such a judgment may be conclusive between the parties so far as that jurisdiction is concerned, but for the purpose of Section 13 of the Indian Civil Procedure Code such a judgment cannot be accepted as one given on the merits o the case, and to that extent the law in India is different from the law in other jurisdictions where foreign judgments given for default of appearance of defendants are also accepted as final and conclusive between the parties thereto. This position was noticed and recognised in AIR 1927 Mad 265 (D). The contention that the defendant who had chosen to remain ex parte, must be taken to have admitted the plaint claim was also repelled in that case as unsound and untenable. His non-appearance can only mean that he is not inclined to come forward and contest the claim or even to admit it.

His attitude may be one of indifference in that matter, leaving the responsibility on the plaintiff to prove his claim if he wants to geta decree in his favour. Such indifference on the part of the defendant cannot necessarily lead to the inference that he has admitted the plaintiff's claim. Admission of the claim is apositive act and it cannot be inferred from any negative or indifferent attitude of the person concerned. To decree the plaint claim solely on account of the default of the defendant and without considering the question whether the claim is well-founded or not and whether there is any evidence to sustain it, can only mean that such a decree is passed against the defendant by way of penalty.

It will not satisfy even the minimum requirements of a judgment on the merits of the claim. What such requirements are, have been explained in Abdul Rehman v. Md. Ali Rowther, AIR 1.92S Rang 3.19 (J), in the following terms ;

'A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff's case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits.'

The same view was taken by the Patna High Court also in Wazir Sahu v. Munshi Das, AIR 1941 Pat 109 (K), where the question when an ex parte decision can be said to be on the merits, was answered as follows:

'An ex parte decision may or may not be-on the merits. The mere fact of its being ex parte will not in itself justify a finding that the decision was not on the merits. That! is not the real test. The real test is not whether the decision was or was not ex parte, but whether it was merely formally passed as a matter of course or by way of penalty or it was based on the consideration of the truth or otherwise of the plaintiff's claim.'

We are in respectful agreement with the view taken in these two cases.

4. Tested in the light of the above-mentioned principles, there can be no doubt that the plaintiffs' suit based on the decree Ext. A of the foreign Court at Jaffna must fail. That decree is not the result of any judgment, not to speak of a judgment on the merits, passed by that Court. Ext. V has been put forward as copy of the judgment of that Court in the particular case. But the decision as embodied in that document is in no way different from the decree as embodied in Ext. A. The decision recorded in Ext. V is under the heading 'Decree in default of appearance of the defendant' thereby indicating that there has been only a decree but no judgment.

There has not even been a formal consideration of the truth or otherwise of the plaintiffs' claim obviously for the reason that no evidence whatever had been adduced in proof of that claim. What is disclosed by Exts. A and V is that the Court merely noted the ah-sence of the defendant on whom summons had been served, and then straightway decreed the claim against the defendants. It is seen from Ext. V that the process-server had sworn an affidavit to show that the summons had been duly served on the defendant. The plaintiff also filed an affidavit in proof of the service of summons on the defendant. Ext. B contains copies of these two affidavits and of the report of the process-server. Nothing else was proved in the case by the plaintiff.

Ext. C is copy of and affidavit filed by the plaintiff in the Attingal Munsif's Court after the institution of the present suit. This affidavit was intended to prove that at the time of the passing of, the decree Ext. A, the defendants were residing within the jurisdiction of the Jaffna Court. To prove the nature of the summons issued to the defendants from that Court a certified copy of such summons was produced in this Court as an additional document. This has been admitted and marked as Ext. D. This document shows what was stated in the summons issued to the defendants was that on default of their appearance on the specified date, 'the action will be proceeded with and heard and determined' in their absence.

This clearly indicates that even in the absence of the defendants, the plaintiff's claim had to be heard and determined. It is significant to note that the summons did not state that the default of appearance of the defendants would be construed as an action on their part that the plaintiff's claim is true. Ext. D rules out the possibility of any such argument. Thus in any view of the case it cannot be said that under Ext. A there has been a judgment in favour of the plaintiff on the merits of the case. The lower appellate Court was therefore right in its view that the present suit based on Ext. A is unsustainable.

5. In the result this Second Appeal fails and it is dismissed with costs.


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