In the High Court of Judicature at Madras Dated 25.08.2011 Coram The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.346 of 2008 and M.P.Nos.1 of 2008 and 1 of 2009 Kanniammal ..Appellant/Respondent/Plaintiff ..vs.. 1. S.Jyothi 2. S.Shaikila 3. S.Megala 4. S.Sundari ..Respondents/Appellants/LRs of the Plaintiff Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of C.P.C., against the judgment and decree passed in A.S.No.342 of 2006 dated 03.07.2007 on the file of VI Additional Judge, City Civil Court, Madras, reversing the judgment and decree passed in O.S.No.8622 of 1996 dated 28.06.2001 on the file of IV Assistant Judge, City Civil Court, Madras, by remanding the same to the trial court. For Appellant : Mr.S.Sadasharam For Respondents: Mr.R.Gowthamnarayanan JUDGMENT This appeal arises out of the judgment and decree dated 03.07.2007 passed by the learned VI Additional Judge, City Civil Court,Madras, in A.S.No.342 of 2006, whereby the lower appellate court reversed the judgment and decree passed by the learned IV Assistant Judge, City Civil Court, Madras, in O.S.No.8622 of 1996 and remanded the matter to the trail court. The appellant is the plaintiff and the legal heirs of the deceased defendant, by name, Selvamani, are the respondents herein. https://hcservices.ecourts.gov.in/hcservices/ 2. The circumstances, which led the appellant/ plaintiff to file the present appeal, are as follows: (a) The plaintiff filed a suit in O.S.No.8622 of 1996 for specific performance, directing the defendant Selvamani to execute and register a sale deed in respect of the suit property in her favour and also for a permanent injunction against the defendant from alienating the property bearing S.No.37/2, Paimash No.170/1, Block No.10 of Puliyur Village, measuring about 1267 sq.ft. It is the case of the plaintiff that the defendant Selvamani is the absolute owner of the suit property and she offered to sell the same for a sale consideration of Rs.one lakh and for the said purpose, they have entered into an agreement of sale on 13.11.1994. On the date of agreement, the plaintiff paid a sum of Rs.50,000/- as advance and the defendant also delivered the original documents to the plaintiff. Subsequently when the plaintiff approached the defendant during last week of October 1995, the defendant expressed her inability to execute the sale deed, unless the plaintiff pays extra consideration more than the amount agreed upon in the agreement of sale. Hence, the plaintiff issued a legal notice dated 27.03.1996, expressing her readiness and demanded the execution of the sale deed in her favour. Though the said notice was received by the defendant, she has not sent any reply. Hence, the plaintiff filed the suit for specific performance as against the defendant Selvamani. (b) On receipt of summons, the defendant Selvamani entered appearance and filed the written statement. After framing issues, the plaintiff was examined as P.W.1. Though the defendant was present at the time of recording the evidence of P.W.1, the defendant has not cross examined P.W.1 on that date. Subsequently, the defendant remained absent on several hearings and hence, she was set ex parte. (c) The trial court passed an ex parte decree on 28.06.2001 in favour of the plaintiff. Therefore, the defendant filed an application under Order 9 Rule 13 C.P.C. to set aside the ex parte decree dated 28.06.2001. The same was allowed by the trial court on payment of costs. But, the defendant had not paid the costs within the stipulated time, as ordered by the trial court. Subsequently, she filed an application for extension of time and though extension of time was granted for payment of costs, the costs were not paid. Hence, that application was dismissed. The subsequent application filed by the defendant to restore the earlier application was also dismissed. In the result, the application filed under Order 9 Rule 13 C.P.C. was dismissed. https://hcservices.ecourts.gov.in/hcservices/ (d) It is the further case of the appellant/ plaintiff that as against the dismissal of the said application, the defendant has not filed any appeal. The defendant died. After a lapse of four years from the death of the defendant, her legal heirs filed an appeal in A.S.No.342 of 2006 before the VI Additional Judge, City Civil Court, Madras, as against the ex parte decree dated 28.06.2001 passed in the said suit. The lower appellate court, after hearing the submissions of both sides, allowed the application and set aside the ex parte decree and judgment of the trial court and remanded the matter to the trial court for fresh disposal, in accordance with law, after recording evidence on both sides. Aggrieved over the same, the present appeal has been filed. 3. It is the submission of the learned counsel for the appellant/plaintiff that once the application filed under Order 9 Rule 13 C.P.C. was dismissed, the regular first appeal as against the ex parte decree and judgment, is not maintainable. In this regard, the learned counsel has relied on the judgments reported in AIR 1989 M.P.224, AIR 2001 (KERALA) 398, AIR 2005 SC 626 and 2(1982) DMC 330. 4. Per contra, it is the submission of the learned counsel for the respondents/the legal heirs of the deceased defendant that the defendant has two options when the ex parte decree was passed, (i) she can either file an application under Order 9 Rule 13 CPC to set aside the ex parte decree and judgment or (ii) she can file an appeal as against the ex parte decree and judgment of the trial court. If the defendant has chosen to file an appeal against the ex parte decree and judgment and the same is dismissed, thereafter, she cannot file an application under Order 9 Rule 13 C.P.C. before the trial court. But if the application under Order 9 Rule 13 C.P.C.is dismissed, even thereafter, the defendant can file an appeal challenging the correctness of the ex parte decree and judgment. But, while filing such an appeal, the defendant cannot raise any grounds with regard to the reasonings given by the trial court for dismissing the application under Order 9 Rule 13 CPC. In the instant case, the respondents had challenged only the ex parte decree and judgment dated 28.06.2001. By considering the appeal on merits, the lower appellate court, remanded the matter. Therefore, no infirmity could be found in the finding rendered by the trial court. 5. The learned counsel for the respondents further submitted that the ex parte decree was not based on merits and under such circumstances, the ex parte decree and judgment of the trial court have no legs to stand and as such, no infirmity could be found in setting aside the ex parte decree and judgment. In support of the https://hcservices.ecourts.gov.in/hcservices/ submissions, the learned counsel has relied on the judgments reported in AIR 2000 M.P.279, 2005(I) CTC 179, 2005(I) CTC 368 and 2011(3) CTC 168. 6. This Court has considered the submissions of the learned counsel on both sides. 7. In view of the submissions made by the learned counsel on either side, the question that arises for consideration is, when once the application filed by the defendant under Order 9 Rule 13 CPC., was dismissed, whether the regular first appeal is maintainable as against the ex parte judgment and decree of the trial court. 8. As could be seen from the materials on record, originally the ex parte decree was passed on 28.06.2001, while the defendant was alive and against that, Selvamani filed an application to set aside the ex parte decree, which was allowed on payment of costs, but the cost was not paid by the defendant and hence, that application was dismissed. In the meantime, Selvamani died. After four years from the death of the defendant, the legal heirs of the defendant filed a regular first appeal before the lower appellate court, challenging the ex parte decree and judgment dated 28.06.2001. Now, it is the submission of the learned counsel for the appellant that once an application under Order 9 Rule 13 C.P.C.filed by a party is dismissed, the appropriate remedy is to file an appeal challenging the said dismissal order and not an appeal as against the ex parte decree and judgment passed by the trial court. Now let us see the ratio laid down in the judgments relied on by the learned counsel for the appellant in support of his submissions. In SUMERA .vs. MADANLAL (AIR 1989 M.P.224), it has been held as follows: "2. The following passage is read out to us by Shri Ramji Sharma appearing for Respondent No. 1, from the judgment of their Lordships of the Supreme Court in the case of Rani Choudhury, AIR 1982 SC 1397 from para 3 of the report : -- "By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree only if the defendant had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer an adjudication by the appellate Court on the merits of the decree or have the decree set aside by the trial Court under Rule 13, Order 9. The legislative attempt incorporated in the Explanation https://hcservices.ecourts.gov.in/hcservices/ was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Rule 13 of Order 9. The disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation." 9. In M.K.GOURIKUTTY .vs. M.K.RAGHAVAN (AIR 2001 KERALA 398), it has been held as follows: "22. Learned counsel for the respondents brought to our notice a decision of the Bombay High Court reported in Mangilal Rungta, Calcutta v. Manganese Ore (India) Ltd., Nagpur AIR 1987 Bombay 87, wherein it is stated that where an application to set aside the ex parte decree is dismissed and that is not challenged in appeal, then the appeal against the decree cannot be put forward. This is what the Division Bench of the Bombay High Court said (at p. 88 of AIR) : "Can a grievance about proceeding ex parte be made again in this appeal is the first point. Now order rejecting an application under Order 9, Rule 13 is appealable under Section 104 read with Order 43, Rule 1 (d), CPC Undoubtedly in appeal under Section 96 against the decree this grievance can be made. Section 105, CPC makes this position clear. Crux of the controversy is whether the same question can be allowed to be reopened in a case where other remedy has been availed of, the decision has gone against the defendant and the said decision has become final. In our view, this point must be answered against the defendant. We recognised public policy of avoiding conflicting decisions on the same point is the reason behind this conclusion. Two High Courts (i) in the case of Badvel Chinna Asethu v. Vettipalli Kesavayya, AIR 1920 Madras 962 and (ii) Munassar Bin v. Fatima Begum, AIR 1975 Andh Pra 336 have taken the same view and It has our respectful concurrence". We agree with the learned counsel for the respondents that as much as the petition under Order 9, Rule 13 was dismissed as not pressed, the question regarding the ex parte nature of the decree cannot be agitated before this Court in the present appeal. Even otherwise we are of view that the position will not improve because as we already stated no medical records are produced by the defendants to show how the incident happened in 1971 and now we are in 2001. Nearly 30 years have lapsed. Excepting that the appellant can give oral evidence, no further https://hcservices.ecourts.gov.in/hcservices/ improvement can be had. Hence, we are not inclined to set aside the ex parte decree". 10. The Hon'ble Supreme Court in BHANU KUMAR JAIN .vs. ARCHANA KUMAR (AIR 2005 SC 626), has observed as follows: "23. The question which now arises for consideration is as to whether the First Appeal was maintainable despite the fact that an application under Order 9, Rule 13 of the Code was dismissed. 24. An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the following grounds: (i) The materials on record brought on record in the ex- parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and (ii) The suit could not have been posted for ex-parte hearing. 25. In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. 26. 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. 27. In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein. 28. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be https://hcservices.ecourts.gov.in/hcservices/ filed; one after the other; on the ground of public policy the right of appeal conferred upon a suit or under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions. 29. There is a distinction between 'issue estoppel' and 'res judicata' [See Thoday vs. Thoday 1964 (1) All. ER 341] 30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res-judicata creates a different kind of estoppel viz Estopper By Accord. 31. In a case of this nature, however, the doctrine of 'issue estoppel' as also 'cause of action estoppel' may arise. In Thoday (supra) Lord Diplock held : "....."cause of action estoppel" is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment.... If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam." 32. The said dicta was followed in Barber vs. Staffordshire Country Council, (1996) 2 All ER 748. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. [See C. (a minor) Vs. Hackney London Borough Council, (1996) 1 All ER 973]. 33. It is true that the Madras High Court in Badvel Chinna Asethu (supra) held that two alternative remedies in succession are not permissible stating: "Assuming that it is open to a defendant in the appeal against the exparte decree to object to the decree on the ground that he had not sufficient opportunity to adduce evidence in a case where he did not choose to avail himself of the special procedure, it does not by any means follow that, where he did actually avail himself of the special procedure and failed, still it would be open to him to have the same question reagitated by appealing against the decree." https://hcservices.ecourts.gov.in/hcservices/ 34. Oldfield, J. in his concurring judgment stated: "...No case has been cited before us in which the question now under consideration, whether a party against whom a decree has been passed ex parte can proceed in succession under O.9, R.13, as well as by taking objection to the order placing him ex parte in his appeal against the substantive decree has been dealt with. On principle it would appear that he could only do so at the expense of the rules as to res judicata; and there can be no reason why the adjudication on his application under O.9, R.13, if there were one should not be conclusive against him for the purpose of any subsequent appeal. In the present case it is suggested that the facts that his application under O.9, R.13, was not carried further than the District Munsif's Court and that he acquiesced in the District Munsif's unfavourable order, would make a difference to his right to appeal against the decree on this ground. The answer to this is that the District Munsif's order not having been appealed against, has become final. It seems to me that it would be a matter for great regret if a party could pursue both of two alternative remedies in succession and that the recognition of a right to do so would be a unique incident in our procedure. I am accordingly relieved to find that such a right has not been recognized by authority..." 35. The aforementioned view was reiterated in the subsequent decisions of different High Courts in Marian Begum (supra) M/s. Mangilal Rungta, Calcutta (supra) and Dr. M.K. Gourikutty (supra). 36. However, it appears that in none of the aforementioned cases, the question as regard the right of the defendant to assail the judgment and decree on merit of the suit did not fall for consideration. A right to question the correctness of the decree in a First Appeal is a statutory right. Such a right shall not be curtailed nor any embargo thereupon shall be fixed unless the statute expressly or by necessary implication say so. [See Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. and Others Vs. C.K. Saji and Others, (2004) 3 SCC 734]". By relying upon the above judgments, the learned counsel for the appellant submitted that the parties cannot persuade two alternative remedies once application filed under Order 9 Rule 13 was dismissed. The only remedy available for the defendant is to challenge the dismissal order and not to file the first appeal as against the ex parte decree and judgment of the trial court. https://hcservices.ecourts.gov.in/hcservices/ 11. But it is the submission of the learned counsel for the respondents that though application under Order 9 Rule 13 filed by the defendant was dismissed, still they can question the correctness of judgment and decree of the trial court by filing the first appeal. In this regard, it would be appropriate to refer the decisions relied on by the learned counsel for the respondents. In ARCHANA KUMAR AND ANOTHER .vs. PURENDU PRAKASH MUKHERJEE AND ANOTHER (AIR 2000 M.P.279), it has been held as follows: "21. Thus, we come to the conclusion that the case of Smt. Rani Choudhary (AIR 1982 SC 1397) (supra) does not lay down the law that once an application under Order 9 Rule 13 of the Code is rejected a regular appeal under Section 96(2) of the Code is not maintainable. We with due respect, are constrained to hold that the Division Bench in the case of Sumera (AIR 1989 Madh. Pra. 224) (supra) does not lay down the law correctly and as a logical corollary the decisions which have followed the said decision stand overruled. 22. Accordingly, we hold that even after dismissal of the application under Order 9 Rule 13 of the Code a regular first appeal under Section 96(2) of the Code is maintainable. 23. Having held that a regular appeal under Section 96(2) of the Code is maintainable against an ex parte decree, we further observe that a proceeding under Order 9 Rule 13 of the Code and a regular appeal can simultaneously be prosecuted. It would be open to the affected party to pray for stay of further proceedings in an appeal till the application under Order 9 Rule 13 of the Code is decided. It would be within the discretion of the appellate Court to pass appropriate order in this regard". A reading of the above would show that the ratio laid down in AIR 1989 MP 224 (supra) was overruled, holding that even after dismissal of the application under Order 9 Rule 13 CPC, a regular first appeal under section 96(2) CPC is maintainable. 12. In RAZIUDDIN MOHD.SIDDIQUI AND ANOTHER .vs. ZAINAB KHATOON (2005 (I) CTC 179), a Full Bench decision, it has been observed as follows: "29. From a reading of the above passage, the ratio as has been culled out from Rani Choudhury's case (AIR 1982 SC 1397) in the light of the question arising for consideration before the Supreme Court in Rani Choudhury's case as regards the impact of explanation to Rule 13 of Order IX of the Code was that if an appeal against an ex parte decree has been disposed of on any ground whatsoever other than the ground of https://hcservices.ecourts.gov.in/hcservices/ the appellant withdrawing the appeal, no application for setting aside the ex parte decree under Order IX, Rule 13 of the Code is maintainable. There is an avowed purpose in bringing amendment by inserting explanation to Order IX, Rule 13 of the Code and the intention of the Legislature is explained in Rani Chodudhury's case and reiterated in P. Kiran Kuamr's case only to the extent that if an appeal has been preferred against an ex parte decree and the same has been dismissed on any ground other than the withdrawal of the appeal, the same would cause a bar to the filing of an application under Order IX, Rule 13 of the Code or in continuing with such an application for setting aside the ex parte decree, in case it was still pending as on the date of the dismissal of the appeal. But, converse is not true and there is no embargo placed by the legislation, and, on that point, we are in full agreement with the ratio of the decision of the Madhya Pradesh High Court in Smt. Archana Kumar's case that even after dismissal of an application under Order IX, Rule 13 of the Code, a regular appeal under Section 96(2) of the Code is maintainable. Accordingly we answer the second question". 13. Yet another decision that has been relied on by the learned counsel for the respondents is reported in 2005(I) CTC 368, which is equivalent to AIR 2005 SC 626, relied on