[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL MISC. APPLICATION NO. 21/2008 IN S.B. CIVIL WRIT PETITION NO. 4899/2004 M/s AMAZING REAL TORS PVT. LTD. Vs. STATE BANK OF BIKANER & JAIPUR & ANR. Date: 12.08.2008 HON'BLE MR. JUSTICE K.S. RATHORE Mr. Sumit Bishnoi for Mr. Bharat Vyas for the petitioner. Mr. Ajeet Bhandari with Mr. Abhay Jain for the applicant M/s Balaji Industrial Product Ltd. Mr. Indresh Sharma for Mr. R.K. Agarwal for the applicant M/s Unisson Organics Pvt. Ltd. Ms. Anita Agarwal for Mr. G.K. Garg for the respondent No.1, SBBJ. **** The present civil misc. application has been moved on behalf of the applicant M/s Balaji Industrial Product Ltd. for recalling the ex-parte order dated 27.07.2004 passed by this Court in S.B. Civil Writ Petition No. 4899/2004 as the aforesaid writ petition was decided ex parte without issuing notice to the respondents It was alleged that the petitioner is prospective buyer of the disputed property in question against consideration of Rs. 42 lacs. It was also submitted that since the petitioner has not deposited the aforesaid amount and also not [2] furnished any undertaking regarding deposition of the aforesaid amount, in view of this fact, the application dated 21.05.2004 is rejected and the demand draft by which the petitioner deposited Rs. 10,50,000/0 was ordered to be returned to the petitioner by the Recovery Officer. It was further submitted before this Court that the petitioner is ready to deposit the entire balance amount as offered by him on or before 03.08.2004. This Court having considered the submissions advanced on behalf of the petitioner and considering the fact that the petitioner M/s Amazing Realtors (Pvt.) Ltd. being a prospective buyer and in the interest of justice as well as in the interest of public at large, vide order impugned dated 27.07.2004 quashed and set-aside the order dated 16.07.2004 and given liberty to the petitioner to deposit the balance amount on or before 03.08.2004. It was further directed that in case the petitioner M/s Amazing Realtors (Pvt.) Ltd. deposits the said amount, sale be confirmed in favour of the petitioner, failing which the order passed by the Recovery Officer dated 16.07.2004 shall stand restored. The petitioner M/s Amazing Realtors (Pvt.) Ltd. filed the writ petition challenging the order dated 16.07.2004 passed by the Recovery Officer, [3] Debt Recovery Tribunal in Execution Case No. 102/2001, whereby the objection application dated 21.05.2004 filed by one M/s Electra (Jaipur) Ltd. which is respondent No.2 in the writ petition, was dismissed. It is contended that though the application of M/s Electra (Jaipur) Ltd. was rejected by the Recovery Officer, but has not challenged the order impugned dated 16.07.2004. The applicant M/s Balaji Industrial Product Ltd. was declared the auction purchaser of the property in question of which the auction was conducted by the Court on 16.04.2004. The applicant has deposited 100% bid amount of Rs. 40,31,000/- before the Court by 29.04.2004 i.e. within 15 days of the date of auction as required statutorily. Knowing this fact that the applicant M/s Balaji Industrial Product Ltd. is auction purchaser, it was not impleaded as party in the writ petition and thus, the petitioner has concealed the material facts before this Court and has played a fraud on the Court. It was also not disclosed by the petitioner that the Recovery Officer, Debt Recovery Tribunal, Jaipur issued a proclamation of sale for recovery of sum of Rs. 1,67,65,061.12 + interest + cost of the mortgaged property on 16.02.2004 and the said amount was due against the respondent No.2 [4] M/s Electra (Jaipur) Ltd. In the auction conducted on 16.04.2004, the applicant was the highest bidder of the mortgaged property. At this stage, when the present application has been moved on behalf of the applicant M/s Balaji Realtors (Pvt.) Ltd. for recalling the ex-parte order dated 27.07.2004 passed by this Court, another application has been moved on behalf of the applicant M/s Unisson Organics Pvt. Ltd. through its Director Suresh Kumar Mehta for impleadment as party respondent, wherein it has been contended on behalf of the applicant M/s Unisson Organics Pvt. Ltd. that the Division Bench of this Court on 19.08.2004 while issuing notice of the special appeal as well as of stay application, stayed the operation of the order dated 27.07.2004 passed in the writ petition. It has been further submitted on behalf of the applicant M/s Unisson Organics Pvt. Ltd. that since the applicant M/s Balaji Industrial (Pvt.) Ltd. has already availed the remedy of appeal, therefore, this recalling application is unsustainable. Further it is malafide on the part of the applicant M/s Balaji Industrial (Pvt.) Ltd. not to implead applicant M/s Unisson Organics Pvt. Ltd. as necessary party to the application, whereas the Division Bench vide order dated 30.07.2007 impleaded the applicant as party respondent. [5] I have heard rival submissions of the respective parties and carefully gone through the ex parte order dated 27.07.2004 passed by this Court. Hon'ble the Supreme Court in the case of Bhanu Kumar Jain Vs. Archana Kumar and Anr., reported in AIR 2005 SC 626, wherein the Hon'ble Supreme Court has held that “When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true.” It has been further observed by the Hon'ble Supreme Court that “It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also [6] an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions. Further in the case of A.V. Papayya Sastry And Others Vs. Govt. of A.P. And Others, reported in (2007) 4 SCC 221, Hon'ble the Supreme Court has held that High Court rightly allowed the recall application and remanded the case to the authorities to decide the same afresh in accordance with law. Considering the ratio decided by the Hon'ble Supreme Court in the case of Bhanu Kumar Jain Vs. Archana Kumar and Anr. (supra), it appears that in the instant case the applicant has availed two remedies simultaneously; one by way of filing special appeal and another by moving application for recalling the ex-parte order, but the special appeal is still pending before this Court and during pendency of the special appeal, application for recalling can be filed in view of the ratio decided by the Hon'ble Supreme Court in the case of Bhanu Kumar Jain Vs. Archana Kumar and Anr. (supra). [7] Applying the ratio decided by the Hon'ble Supreme Court in the case of A.V. Papayya Sastry And Others Vs. Govt. of A.P. And Others (supra), in the present case, admittedly ex-parte order was passed by this Court on the basis of the misrepresentation and without impleading necessary party as respondents. Therefore, in the interest of justice and to decide the writ petition afresh in accordance with law, it is necessary to recall the ex-parte order dated 27.07.2004 passed by this Court. Similar view has been expressed by the Hon'ble Supreme Court in the case of Rabindra Singh Vs. Financial Commissioner, Cooperation, Punjab and Ors. [Civil Appeal No. 3574/2008 (arising out of SLP(C) No. 13783/2004)], wherein the Hon'ble Supreme Court has held that “ A defendant in a suit has more than one remedy as regards setting aside of an ex-parte decree. He can file an application for setting aside the ex-parte decree; file a suit stating that service of notice was fraudulently suppressed; prefer an appeal and file an application for review.” It has been further observed by the Hon'ble Supreme Court that “What matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in the absence of any express [8] provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex- parte decree, subject of course to the statutory interdict.” Further the Hon'ble Supreme Court in the case of Krishi Utpadan Mandi Samiti, Achanera And Another, reported in (2008) 2 SCC 588, has observed that without issuance of the notice, on the first day itself the judgment was reserved and the award of the Labour Court was set aside and this position is not disputed by the learned counsel for the respondent and set aside the order passed ex-parte. In the case in hand also, this Court without issuing notice on the first day itself, on the submissions made on behalf of the petitioner, allowed the writ petition vide order dated 27.07.2004 and admittedly the auction purchaser was not made party in the writ petition and the order was passed without hearing the applicant M/s Balaji Industrial Product Ltd. Therefore, having considered the ratio decided by the Hon'ble Supreme Court, looking to the facts and circumstances of the case and in the interest of justice, this Court deem it proper to allow the present misc. application and recall the order dated 27.07.2004 passed ex-parte by this Court. [9] Consequently, the present misc. application is allowed and the ex-parte order dated 27.07.2004 passed by this Court is recalled. S.B. Civil Writ Petition No. 4899/2004 is restored at its original number. The applicant M/s Balaji Industrial Product Ltd. is necessary party in the writ petition. Since the Division Bench of this Court has already impleaded applicant M/s Unisson Organics Pvt. Ltd. as necessary party respondent in the appeal vide order dated 30.07.2007, therefore, in view of the order passed by the Division Bench, the applicant M/s Unisson Organics Pvt. Ltd. is a necessary party in the writ petition. The application bearing No. 24840/2008 for impleadment as party respondent also stands allowed accordingly. Learned counsel for the petitioner is directed to file amended cause title impleading M/s Unisson Organics Pvt. Ltd. as well as applicant M/s Balaji Industrial Product Ltd. as party respondents in the writ petition. (K.S. RATHORE),J. /KKC/