1 wp no.706/93 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.706 of 1993 1) Joseph Louis Martyres 2) John Anthony Martyres 3) Shri Pramod Ramvilas Malpani ... Petitioners versus 1) Kesarimal Maganlal Soni 2) Babulal Foujmal 3) Khimjibhai Bhoomal 4) Manohar Subhrao ... Respondents ... Mr. V.S.Gokhale for the petitioner. Mr. Jaydeep Rao for respondent no.1. CORAM : D.G. KARNIK, J. DATED : 12th July 2010 ORAL JUDGMENT:- 1. By this petition, the petitioners challenge the judgment and order dated 24 April 1992 passed by 8th Additional District Judge, Pune allowing Miscellaneous Civil Appeal No.314 of 1987 filed by the respondent no.1. 2 wp no.706/93 2. The petitioners are the owners and landlords of the suit premises. Respondent no.1 is a tenant and respondent nos. 2 to 4 are alleged to be the sub-tenants. Petitioners filed a suit bearing Regular Civil Suit No. 2142 of 1976 against the respondents in the Small Causes Court, Pune for possession. On the date of hearing, respondents remained absent. Evidence of the petitioner was recorded in the absence of the respondents. The trial Court held that respondent no.1 was a defaulter in payment of the rent and passed a decree for arrears of rent and possession u/s.12(3)(a) of the Bombay Rents (Hotels and Lodging Rates Control) Act 1947 (for short “Bombay Rent Act”). The trial court also held that the respondent no.1 had sublet part of the suit premises to the respondent nos.2/4 and that by subletting the respondent no.1 was also profiteering, and passed a decree also on the ground of the subletting and profiteering. 3. Aggrieved by the decision of the Small Causes Court, respondent no.1 had filed an appeal bearing Appeal No.329 of 1980 in the District Court at Pune. By an order dated 3 August 1984, the District Court dismissed the appeal. Respondent no.1 filed a second appeal bearing Second Appeal No.299 of 1985 in this court. As the second appeal was 3 wp no.706/93 not maintainable, respondent was allowed to convert it into writ petition and after conversion, writ petition was numbered as Writ Petition No.807/86. However, writ petition was not pursued by the respondent no.1 and was withdrawn on 4 February 1993. 4. In the mean while, the respondent no.1 also filed an application purporting to be under Order 9 Rule 13 of the Code of Civil Procedure ( for short “the Code”) for setting aside the decree dated 5 June 1980. By an order dated 16 October 1998, that application was dismissed. Aggrieved respondent no.1 filed an appeal bearing Miscellaneous Civil Appeal No.314/87 challenging the order of dismissal. That appeal was allowed and appellate court set aside the ex-parte decree and restored the suit to file. That order is impugned in this writ petition. 5. While rejecting an application made under Order 9 Rule 13 of the Code, the Small Causes Court has held that the decision was not an ex- parte decision inasmuch as the defence of the respondent no.1 – defendant no.1 was struck off on the ground of non deposit of the arrears of rent in spite of the order passed u/s.11(4) of the Bombay Rent Act. The trial Court held that the effect of striking off the defence was that though the respondent no.1 (defendant no.1) had appeared, 4 wp no.706/93 he could not have contested the suit. In the circumstances the decree passed in the absence of the respondent no.1 could not be said to have been passed under Order 9 Rule 13 of the Code. Consequently, the application Order 9 Rule 13 was not maintainable. The appellate court reversed this decision and by holding that the decree would be regarded as ex-parte and application under Order 9 Rule 13 would be maintainable. When the defence of the defendant is struck off, the defendant is not allowed to prove the case which he has initially set up by way of a defence in the written statement but that does not mean that the defendant is precluded from taking any part in the suit. He can still appear at the hearing and may be permitted to cross examine the plaintiff and show even on the averments made in the plaint and/or on the evidence adduced by the plaintiff, no decree can be passed against him. (see Industrial Corporation Vs. Kiln Plastic Products 1976 (1) SCC 91 and Modula India Vs. Kamakshya Singh Deo 1988(4) SCC 619. It is one thing to say that decree is refused on account of the defence of the defendant being accepted and another thing to say that the suit is dismissed because the plaintiff has not proved his case. Consequently, it cannot be said that the respondent no.1 – defendant no.1 could not have participated in the suit. The decree which was passed in the absence of the respondent no.1 could therefore still be an ex-parte 5 wp no.706/93 decree and an application under Order 9 Rule 13 could be filed by him for setting aside the said ex-parte decree. 6. There is however another hurdle in the way of the respondent no. 1 – (defendant no.1). Explanation was added to Order 9 Rule 13 of the Code by the Civil Procedure Code Amendment Act 1976 and reads thus:- “Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant had withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree” 7. The Explanation makes it clear that where a decree has been passed ex-parte, the defendant would have two options. Firstly, he can file an appeal against the ex-parte decree, in which case the appeal would be heard and decided on merits on the basis of the evidence that is available before the Court. In the alternatively, he can apply for setting aside of an ex-parte decree under Order 9 Rule 13 of the Code of Civil Procedure. But where the defendant has filed an appeal against the ex-parte decree, he cannot apply for restoration of the suit by 6 wp no.706/93 reason of the explanation to Order 9 Rule 13 of the Code. In my view, the explanation was added only to make clear the position which already existed in law. This is because once an appeal is filed against a decree and the appellate court decides the appeal, decision of the trial court merges into the decision of the appeal. The rights of the parties are then governed by the judgment and decision of the appellate court. As the judgment of the trial court merges into judgment of the appellate court, obviously an application under Order 9 Rule 13 for setting aside the judgment of the trial court would not be maintainable after an appeal is decided (except in case of its withdrawal) because that judgment of the trial Court no longer survives and it is the appellate judgment that governs the rights of the parties. The explanation to Order 9 Rule 13 only makes clear this position which existed in law even before the addition of the explanation to Order 9 Rule 13 by an amendment. Once an appeal is filed against an ex-parte decree and the appeal is disposed of on any ground other than its withdrawal, no application for setting aside the ex-parte decree would lie under Order 9 Rule 13. In the present case, the respondent no.1 had filed an appeal and the same was dismissed. Consequently, application under Order 9 Rule 13 was not maintainable. 7 wp no.706/93 8. Learned counsel for the respondent submitted that the appeal filed by the respondent no.1 was not dismissed on merits but it was dismissed on the ground that respondent no.1 had filed application for setting aside the ex-parte decree and hence the application under Order 9 Rule 13 of the Code was maintainable. The submission cannot be accepted. In paragraph no.7 of the appellate judgment in the appeal, it has no doubt been observed that appeal was untenable in view of the fact that respondent had filed an application for restoration. That observation obviously was erroneous inasmuch as explanation to Order 9 Rule 13 only provides that restoration application would not be maintainable and does not provide that appeal would not be maintainable. It may be noted that though the appellate court hearing the appeal against the original decree had observed that the appeal was untenable it had not dismissed it on that ground alone but had also considered it on merits and dismissed it on merits. In paragraph no.8 of the decision, the appellate court has held that the respondent no.1 had committed a default in payment of the rent and consequently, the decree of the was proper. The appeal was dismissed not only as untenable but also on merits. There is no doubt that the respondent no. 1 had challenged the judgment and decree for possession before the appellate court by filing an appeal. The appeal was dismissed on two 8 wp no.706/93 grounds, one was of tenability of the appeal and other was on merits. Once the appeal was dismissed, an application under Order 9 Rule 13 of the Code for setting aside the ex-parte decree and restoration of the suit was not maintainable. The impugned decision in so far as it holds that an application under Order 9 Rule 13 was maintainable is therefore illegal and contrary to law and is required to be set aside. For these reasons, the impugned order is set aside and the Rule is made absolute. 10. Petitioner would be free to execute the decree passed against the respondents. 11. Learned counsel for the respondents pray for stay of execution of a decree. Stay for execution of the decree is granted for a period of eight weeks subject to condition that all the respondents file an undertaking in this court in the usual form within a week. Stay shall stand automatically vacated in case the affidavit is not filed within one week. (D.G. KARNIK,J.)