CR No.1289 OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.1289 OF 2009 DATE OF DECISION: 01.02.2010 **** Gram Panchayat, Nasirpur, Tehsil and District Ambala, through its Sarpanch Gurmit Singh. . . . . Petitioner VS. Smt. Rattni Devi and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.S.M. Sharma, Advocate for the petitioner. Mr.Hemant Bassi, Advocate for the respondents. **** RAKESH KUMAR JAIN J. Defendant has challenged order dated 8.2.2008 passed by learned Civil Judge (Jr.Division), Ambala whereby, an application filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short ‘CPC’) was dismissed and has also challenged order dated 5.9.2008 passed by learned Addl. District Judge, Fast Track Court, Ambala whereby, an appeal preferred by the petitioner against the order of learned Civil Judge (Jr. Division) Ambala, dated 8.2.2008 was dismissed. CR No.1289 OF 2009 -2- Briefly stated, the background of the case is that plaintiff / respondent filed a suit for permanent injunction restraining the defendant/petitioner from interfering, in any manner, whatsoever, in their peaceful and lawful possession over the ‘Bara’ in dispute. In this suit, defendant/petitioner was proceeded against ex parte on 16.2.1995 and suffered an ex parte decree on 17.9.1999. The defendant/petitioner challenged the ex parte judgment and decree dated 17.9.1999 by way of an appeal which was adjourned sine die and had also filed an application under Order 9 Rule 13 of the CPC before the trial Court for setting aside the ex parte judgment and decree. In the application filed under Order 9 Rule 13 of the CPC, the trial Court framed following issues on 6.12.2003: “1. Whether ex parte judgment and decree dated 17.9.1999 and ex parte order dated 16.2.1995 are liable to be set aside on the ground mentioned in the plaint? OPA 2. Whether application under Order 9 Rule 13 CPC is not maintainable? OPR 3. Whether present application is hopelessly time-barred? OPR 4. Relief.” The learned trial Court vide its order dated 8.2.2008 decided issue No.1 in favour of the defendant/petitioner but decided issues No.2 and 3 against it and ultimately dismissed their application. The First Appellate Court, however, even reversed the finding on issue No.1 against defendant/petitioner besides affirming the finding on other issues already decided against it. CR No.1289 OF 2009 -3- In the present Revision Petition, the first question raised by the learned counsel for the respondent, is about the maintainability of application under Order 9 Rule 13 of the CPC in the presence of pendency of an appeal against the ex parte judgment and decree. In answer, the learned counsel for the petitioner has vehemently argued that though an appeal has been preferred against the ex parte judgment and decree of the learned trial Court dated 17.9.1999 to a higher Court yet an application has also been filed to the trail Court itself under Order 9 Rule 13 of the CPC for setting aside ex parte judgment and decree because the appeal, which was preferred earlier, was adjourned sine die, which would not construed an actual pending appeal. In order to appreciate the contentions of both the learned counsel for the parties, it would be worthwhile to refer to the provisions of Order 9 Rule 13 of the CPC, which is reproduced as under: - “13. Setting aside decree ex parte against defendant – In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. Provided that where the decree is of such a nature that it cannot be set aside as against CR No.1289 OF 2009 -4- such defendant only it may be set aside as against all or any of the other defendants also: [Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.] [Explanation : - 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 has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]” Admittedly, the petitioner had filed an appeal against ex parte judgment and decree dated 17.9.1999 prior to filing the application under Order 9 Rule 13 of the CPC before the Court concerned. The learned counsel for the respondent has relied upon a decision of the Supreme Court in the case of “Rani Chaudhury Versus Lt. Col. Suraj Jit Chaudhury” AIR 1982 SC 1397(1) to contend that during the pendency of an appeal against the ex parte judgment and decree, an application under Order 9 Rule 13 of the CPC would not be maintainable. It is also contended that an appeal, which has been adjourned sine die and would not be construed to have been decided and in the presence of the pendency of appeal, application is not maintainable. I have heard the learned counsel for the parties and have gone through the record with their assistance. CR No.1289 OF 2009 -5- In the case of Rani Chaudhury (supra), the Apex Court has held as under: - “It has been observed earlier that a defendant intending to avoid an ex parte decree could apply to the trial court for setting it aside and could also appeal to a superior court against it. The courts were open to a duplication of proceedings, and although the immediate relief claimed in the two proceedings was not identical both ultimately aimed at a re-decision on the merits. Moreover, on the two proceedings initiated by the defendant, the application under R. 13 of O. 9 would subsequently become infructuous if the appeal resulted in a decree superseding the trial court decree. It was also possible to envisage the appeal becoming infructuous if the trial court decree was set aside on the application under R.13 of O.9 before the appeal was disposed of. The plaintiff was in the unfortunate position of being dragged through two courts in simultaneous proceedings. Public time and private convenience and money was sought to be saved by enacting the Explanation. The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying he procedural law. By enacting the Explanation, Parliament left it open to the defendant to apply under R. 13 of O. 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 he merits of the decree or have the decree set aside by the trial court under R. 13 of O. 9. The legislative attempt incorporated in CR No.1289 OF 2009 -6- the Explanation 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 R. 13 of O.9. The disposal of the appeal on any ground whatever, apart from its withdrawal constituted sufficient reason for bringing the ban into operation.” In view of the law laid down by the Apex Court, it can be safely held that an application filed under Order 9 Rule 13 of the CPC during the pendency of the appeal would not be maintainable as an appeal, which has been simply and merely adjourned sine die would not be construed to have been disposed of for all intents and purposes. An appeal, which has been adjourned sine die would come within the definition of pending appeal. Thus, in view of the above discussion, I do not find any merit in the present revision petition and as such the same is hereby dismissed. (RAKESH KUMAR JAIN) February 01, 2010 JUDGE vivek