IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 RSA.No. 905 of 2010() --------------------- AS.59/2002 of PRINCIPAL SUB COURT,ATTINGAL OS.235/1996 of MUNSIFF COURT,VARKALA .................... APPELLANT/2ND APPELLANT ------------------------------------------- JASMINE, D/O.SIDDIQUE, JAS VIHAR, ODAYAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.B.SURESH KUMAR RESPONDENT(S): --------------- 1. MUSLIM EDUCATION & CULTURAL CENTRE (MECC), REG.NO.533/93, ODAYAM DESOM, VARKALA REPRESENTED BY ITS PRESIDENT, J.ABDUL MANAF, VAZHAVECHAVILA, KURAKKANNI, VARKALA. 2. RUKHIYA BEEVI, W/O.SIDDIQUE, JAS VIHAR, ODAYAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. 3. SIRAJ, S/O.SIDDIQUE, JAS VIHAR, ODAYAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. 4. NISHA, D/O. SIDDIQUE, JAS VIHAR, ODAYAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. 5. ANZAR, S/O.SIDDIQUE, JAS VIHAR, ODAYAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. 6. ARSHARD, S/O.SIDDIQUE, JAS VIHAR, ODAYAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. 7. SHAKKUTTY, S/O.SIDDIQUE, JAS VIHAR, ODAYAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. 8. SIDDIQUE (DIED), S/O.MOHAMMED NOOH SRANK OF JAS VIHAR, ODAYAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.905 OF 2010 -------------------------------- Dated this the 12th day of October 2010 JUDGMENT CR The second defendant in O.S No.235/1996 on the file of the Munsiff Court, Varkala is the appellant. In the above suit, an exparte decree was granted in favour of the first respondent/plaintiff declaring its title and possession over the suit property and also granting an injunction against the defendants from trespassing upon that property. The appellant herein along with two other defendants had challenged that exparte decree before the Sub Court, Attingal. That appeal was dismissed. Concurrent decision so rendered by the two courts below in favour of the first respondent/plaintiff is challenged in the second appeal. 2. Suit was one for declaration of title, possession and injunction, and also for fixation of boundary over the plaint property having an extent of 53.333 cents in Varkala village. Plaintiff is an association registered under Act 12 of 1955. Plaintiff claimed title over the property under A2 sale deed executed by one Muhammed Iqbal who is stated to have got an assignment over the property from its original owner 8th defendant. The above said Muhammed Iqbal had filed a suit against the 8th defendant for fixing the boundary of the property, R.S.A No.905 OF 2010 - 2 - and a decree was granted in that suit. The defendants 1 to 7, the wife and children of 8th defendant, setting up some right over the property are obstructing its possession and enjoyment of the plaintiff was its case to seek the declaration of title, possession and enjoyment and also for fixation of boundaries. The defendants 1, 2 and 4 filed a joint written statement and the 7th defendant, adopted that statement. 8th defendant filed a separate written statement. Contesting defendant challenged the claim of the plaintiff over the suit property setting up rival claim of title over the same. Pendency of some suits with the predecessor of the plaintiff was also canvassed to impeach the validity of the sale deed over the property executed in its favour. The judgment of the trial court reveals that when evidence was recorded in the case, the respective counsel for defendants 1 and 2 and also 8th defendant had reported no instruction. On behalf of the plaintiff, its President was examined as PW1 and A1 to A9 were exhibited towards documentary evidence. The evidence so let in by the plaintiff remained unchallenged. The trial court, after examining the materials with reference to the pleadings rendered a decision in the suit on merits. That decree was challenged by the defendants 1, 2 and 4 jointly preferring an appeal A.S No. R.S.A No.905 OF 2010 - 3 - 59/2002 before the Sub Court, Attingal. The lower appellate court, after reappreciating the materials tendered in the case, concurring with the findings of the trial court, dismissed that appeal. As against that concurrent decision rendered by the two courts in favour of the plaintiff, the second defendant has preferred this appeal. 3. Noticing from the judgment rendered by the trial court that the disposal of the suit as against defendants 1 to 7 was rendered after declaring them exparte, to my query whether any petition had been filed by any of those defendants under Order 9 Rule 13 of the Code of Civil Procedure to set aside such exparte passed against them, the learned counsel for the appellant conceded that there was such a proceeding at the instance of the first defendant and that application was dismissed by the trial court. Though it is not made clear whether the first defendant had filed such an application under Order 9 Rule 13 of the Code of Civil Procedure for the other defendants as well, treating the decree passed as an exparte decree, it is seen from the judgment rendered by the lower appellate court that above defendant along with defendants 2 and 4 preferred the appeal, A.S No.59/2002 before that court. Admittedly the application under Order 9 Rule R.S.A No.905 OF 2010 - 4 - 13 of the Code was turned down. So much so, in the given facts of the case, so far as the present appellants are concerned, their appeal can be looked into and considered only with respect to the challenges against the merit of the exparte decree passed against them, and not in respect of any ground which was available to them for their absence, which had resulted in passing of an exparte decree against them. When an exparte decree is passed against the defendant, he can seek for setting aside the decree under Order IX Rule 13 showing sufficient cause for his absence on the date of hearing or challenge such a decree by way of a regular appeal as provided by the Code. But where an appeal is preferred challenging the decree on its merits or on any other ground, and such appeal has been dismissed on any ground other than its withdrawal, explanation added to Rule 13 of Order IX of the Code under Act 104 of 1976 clearly spells out that no application under that rule for setting aside the exparte at the instance of that defendant will lie. That bar of considering an application for setting aside the exparte decree where an appeal preferred against such decree has been dismissed 'on any ground other than its withdrawal' is not dependent upon the question whether such appeal against the exparte decree was before or R.S.A No.905 OF 2010 - 5 - after the application under Rule 13 of Order IX of the Code. The dismissal of appeal against the exparte decree otherwise than on the ground of withdrawal interdicts the court which passed such decree in having a decision on its merit over an application under Rule 13 of Order IX of the Code of Civil Procedure, and the application thereof under such circumstance has to be dismissed as not maintainable. However, the dismissal of an application under Rule 13 of Order IX of the Code of Civil Procedure will not as such affect the maintainability of an appeal against the exparte decree. But, if the application under the above Rule had been dismissed, in the appeal against the exparte decree the appellant/defendant will not be allowed to impeach the decree on a ground for showing sufficient cause for his absence at the time of hearing of the case, and, the decree is open to challenge only on its merit, or jurisdiction of the court which had passed such decree. 4. The apex court, in “Bhanu Kumar v Archana kumar” (2005 KHC 72) has considered to what extent and how far the appeal preferred against an exparte decree could be considered when the appellant/defendant had moved an application previously for setting aside that exparte decree under Order 9 R.S.A No.905 OF 2010 - 6 - Rule 13 of Code of Civil Procedure and it was dismissed. In such a case, the apex court has held the doctrine of 'issue estoppel' and also 'cause of action estoppel' may arise. Dilating over that issue emerging from the dismissal of an application under Order 9 Rule 13 of the Code of Civil Procedure and its impact on the entertainability of a regular appeal preferred from the decree by the defendant, the apex court has held thus: “We have, however, no doubt in our mind that when an application under O.9, R.13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz, to prefer an appeal in terms of O.43, R.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. 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 S.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 such an appeal.” R.S.A No.905 OF 2010 - 7 - 5. Such being the position of law, in the present appeal the appellant herein is entitled only to challenge the decree granted to the plaintiff only on its merit, and that too on the materials available on the records of the case. The memorandum of appeal and also the arguments canvassed by the counsel to impeach the correctness of the exparte decree, it is seen, are built upon the various contentions raised by the defendants in their written statements, more particularly, with reference to the previous litigations which are stated to be still pending and not concluded so far. I find, the contentions so raised to impeach the correctness of the exparte decree rendered against the appellant and in favour of the plaintiff, cannot be canvassed for as the correctness of such decree has to be tested with reference to the plaintiff's case for declaration and materials tendered by them to claim such decree. The learned counsel for the appellant contended that in the appeal preferred before the court below, a number of documents were produced with a petition to receive them as additional evidence moving an application under Order 41 Rule 27 of the Code of Civil Procedure. The lower appellate court has not considered that application is the grievance espoused. Perusing the memorandum of appeal, I find no such R.S.A No.905 OF 2010 - 8 - ground has been raised to impeach the judgment of the lower appellate court other than making a statement to the effect that before the lower appellate court some documents were produced for reception as additional evidence. 6. From the statements made in the memorandum of appeal, it is seen that the first appeal was preferred before the lower appellate court after considerable delay, ie, more than 900 days. The delay was condoned and then the appeal was disposed on merits. The exparte decree granted in favour of the plaintiff is seen challenged mainly on the ground that where the contesting defendants, including the present appellant, resisted the suit claims contending that the gift deed executed by the first defendant in favour of her children 2 to 7 as the power of attorney of the 8th defendant, transferring the rights of that defendant to defendants 2 to 7, she was unaware of the cancellation of the power of attorney and no notice thereof was issued to her, a burden was cast up on the plaintiff to show that the first defendant had notice of such cancellation. The plaintiff in the case, producing a copy of A6 cancellation deed executed by the 8th defendant, has shown that the gift deed executed by the first defendant in favour of defendants 2 to 7 as the power of attorney R.S.A No.905 OF 2010 - 9 - of 8th defendant was after A6 cancellation deed. When that be the case, burden was on the defendants to substantiate their contentions raised against the claim of the plaintiff, and not otherwise. Both the courts have concurrently found that the plaintiff has established, by the materials tendered, the claim raised for declaration of its title and possession over the suit property and injunction against the defendants. Such concurrent findings entered by the courts below on the materials placed to grant the exparte decree in favour of the plaintiff upholding its claim over the suit property is not open to challenge in second appeal solely on the basis of the contentions raised by the defendants in their written statement when they have not substantiated them by any material whatsoever. The appeal does not involve any question of law leave alone any substantial question of law for receiving it on file. Appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv