Case: Arjun Singh Vs. Mohindra Kumar &amp; Others

1. This is an appeal by special leave filed by a defendant whose application under O. IX. R. 13, Civil Procedure Code to set aside an ex parte decree passed against him has been dismissed as barred by res judicata.2. To appreciate the points arising in the appeal it would be necessary to narrate the proceedings in three litigations between the parties. The ex parte decree that was passed against the defendant - who will hereafter be referred to as the appellant - and which he sought to be set aside in the proceedings which are the subject of the present appeal, was in suit 134 of 1956 on the file of the Court of Second Civil Judge, Kanpur. But long before this suit was filed, the two other proceedings were already pending. The first of them was a Small Cause suit by one Phula Kuer who sought to recover from the appellant Rs. 750/- on the basis that she and the appellant were partners and by an arrangement between them he agreed to pay her Rs. 150/- per month for her share of the profits which he had failed to pay. This was suit 1023 of 1951 on the file of the Small Cause Court, Kanpur. The appellant entered on his defence and denied the partnership and his liability to pay the sum claimed. While this suit was pending, the appellant in his turn filed suit No. 20 of 1953 against Phula Kuer for fixing the fair rent of the premises in which he was carrying on the business, which Phula Kuer alleged was a partnership business, it being common ground that Phula Kuer was the owner thereof. While there two suits were pending Phula Kuer died on July 13, 1953 and thereafter one Rup Chand Jain filed suit 134 of 1956 already referred to. Rup Chand Jain died pending the appeal in the High Court and is now represented by his heirs who have been brought on record. It would however be convenient to refer to the respondents as the plaintiffs.3. Suit 134 of 1956 which was filed on May 19, 1956 repeated the allegation that Phula Kuer had entered into the partnership with the appellant under which she was entitled to get for her share Rs. 150/- per month. This share of profits it was alleged, had been paid to her up to October 14, 1950 and that thereafter the appellant failed to pay the same. The plaintiff claimed to be the next reversioner of Phula Kuer and on that basis claimed that a sum of Rs. 4,200/- was due to him. Besides this, he alleged that the appellant had been using the building belonging to Phula Kuer in regard to which he was liable to pay rent which was claimed at Rs. 150/- per mensem. The plaintiff also claimed that he was entitled to evict the appellant from the premises. In the result, the reliefs claimed in the suit were a money-decree for Rs. 9,390/- on account of the items we have set out, and (2) eviction from the premises where the business was being carried on. Having regard to the contentions of the parties in the three suits, all of them were transferred by the District Judge, to the Court of the Second Civil Judge, Kanpur on August 4, 1956, and on August 23, 1956 the Civil Judge passed an order directing that the suits 20 of 1953 and 134 of 1956 be consolidated for joint hearing, the evidence led in suit 134 of 1956 being treated as evidence in the other suit as well. On October 10, 1956 the appellant filed his Written Statement to suit 134 of 1956 in which he put forward the case in which he had already been asserting viz., (1) absence of any partnership relationship between himself and Phula Kuer, and (2) that he was in possession as a tenant and could not be evicted because the requisite statutory conditions to enable the plaintiff to claim eviction, were not satisfied. Needless to add that there were several other defences which he urged to which it is unnecessary to refer. Thereafter there were questions raised as regards the adequacy of the court-fee paid by the plaintiff in suit 134 of 1956, applications by the plaintiff to amend the plaint etc. These took place during the year 1957. The issues were settled on February 28, 1958. We can pass over what transpired in the early part of 1958. Both the parties were attempting to effect a compromise and for that purpose the hearing was adjourned but the compromise was not finalised, and finally, on May 24, 1958 a joint application was made by the plaintiff and the appellant that two months time may be granted to them to arrive at a settlement and that the trial which was fixed for May 28, 1958 may be adjourned for that purpose. The Court, however, refused this application for the reason that the suit for the fixation of rent was of the year 1953. On the 28th there was again another application for adjournment and the Court adjourned the trial by one day and fixed it for May 29, 1958, the order stating "If no compromise is filed the case would be taken up for final hearing". On 29th the plaintiff was present but the appellant was absent and the latters Counsel who was present reported that they had no instructions to conduct the case. Thereupon the court passed an order in suit 134 of 1956 in these termsplaintiff is present. Defendant is absent, Counsel for the defendants have no instructions. Case proceeds ex parte. Plaintiff examined Mohinder Kumar andorder concluded with the words "Judgment reserved". In the suit for the fixation of rent which was taken up for trial on the same date the order of the Court ranis absent. Defendant with his Counsel is present. Counsel for the plaintiff has no instructions. Suit is dismissed as per orders passedis only necessary to add that the third suit - 1023 of 1951 - was on the same day also decreed ex parte.4. On May 31, 1958 the appellant filed three applications in the three suits for setting aside the ex parte orders passed against him. The application in suit 134 of 1956 was treated as the primary one and in support of it an affidavit was filed in which the appellant stated that after the talks for compromise had reached a decisive stage and when the appellant was making arrangements to implement that decision he got an attack of heatstroke and was, therefore, unable to be present in Court when the case was called on the 29th - i.e. the day fixed for hearing. He therefore, prayed that the order or direction to proceed ex parte passed against him in the two suits in which he was defendant may be set aside and he be given an opportunity to context the suits. Needless to add that in suit 20 of 1953 which had been dismissed for default, the prayer was to set aside that dismissal. Notices were issued on these applications and the plaintiff filed a counter-affidavit in which he disputed the truth of the statement regarding the appellants illness and prayed that the applications may be dismissed. He also suggested that if they were to be ordered it should be on certain terms. We should mention even at this stage that though the application filed on the 31st did not specify the particular provision of law under which the jurisdiction of the Court was invoked, the parties and the court proceeded on the basis that in relation to suits 1023 of 1951 and 134 of 1956 they were applications under O. IX R. 7 of the Civil Procedure Code. So far as the other proceeding was concerned - O. S. 20 of 1953 - it was undoubtedly an application for setting aside the dismissal of the plaintiffs suit for default and was filed under O. IX R. 9. These three applications were disposed of by a common judgment of the Civil Judge on August 23, 1958 and the learned Civil Judge held that the story of the illness of the appellant which had been put forward as affording sufficient reason for not being present in Court on May 29, 1958 was false. For this reason he refused to set aside the order dismissing the suit for default of suit 20 of 1953 in which judgment had already been delivered. In the other two suits 1023 of 1951 and 134 of 1956 he ordered the direction for the reservation of judgments to stand and fixed August 25, 1958 for the delivery of the judgments.5. The appellant thereupon moved the High Court of Allahabad in revision against the order passed against the refusal of his application in suit 134 of 1956 alone and apparently obtained a stay of delivery of the judgment. This application was disposed of by the High Court on September 4, 1958 when the following order was passedwas conceded that no ex parte decree has yet been passed. The only order passed is that the case shall proceed ex parte against the appellant. In view of the fact that no decree has yet been passed, the setting aside of the ex parte order was not absolutelyreferring to the decision of this Court in Sangam Singh v. Election Tribunal, (1955) 2 SCR 1   : ((S) AIR 1955 SC 425  ) the learned Judge addedfollows that, even though the ex parte order had been passed, the applicant could appear and take part in the case from the stage at which the ex parte order had been passed. The only thing he could not claim was to be relegated back to the old position as if he had not absented himself on the date fixed. In these circumstances, I think, no interference is called for with the order of the learned Civil Judge refusing to set aside the ex parte order. It will be open to the applicant to present himself on the date to which the case now stands adjourned and request the learned Civil Judge to allow him to participate in the proceedings from that state.There is therefore no force in this application. It isare making this extract from the order for emphasising the fact that it appears to have been the common case before the High Court that the application of the appellant in suit 134 of 1956 was under O. IX R. 7 of the Civil Procedure Code and it was on that basis that the High Court approached the question and decided the revision petition.The appellant thereupon moved the High Court of Allahabad in revision against the order passed against the refusal of his application in suit 134 of 1956 alone and apparently obtained a stay of delivery of the judgment. This application was disposed of by the High Court on September 4, 1958 when the following order was passeds conceded that no ex parte decree has yet been passed. The only order passed is that the case shall proceed ex parte against the appellant. In view of the fact that no decree has yet been passed, the setting aside of the ex parte order was not absolutelyreferring to the decision of this Court in Sangam Singh v. Election Tribunal, (1955) 2 SCR 1   : ((S) AIR 1955 SC 425  ) the learned Judge addeds that, even though the ex parte order had been passed, the applicant could appear and take part in the case from the stage at which the ex parte order had been passed. The only thing he could not claim was to be relegated back to the old position as if he had not absented himself on the date fixed. In these circumstances, I think, no interference is called for with the order of the learned Civil Judge refusing to set aside the ex parte order. It will be open to the applicant to present himself on the date to which the case now stands adjourned and request the learned Civil Judge to allow him to participate in the proceedings from that state.There is therefore no force in this application. It ise making this extract from the order for emphasising the fact that it appears to have been the common case before the High Court that the application of the appellant in suit 134 of 1956 was under O. IX R. 7 of the Civil Procedure Code and it was on that basis that the High Court approached the question and decided the revision petition.Within 4 days of this order of the High Court and obviously acting in pursuance of the direction of the learned Judge the appellant made an application to the Civil Judge drawing his attention to the observations we have quoted and prayedyour Honour be pleased to hear the application and take the evidence of theof the same type were filed in the other suit - 1023 of 1951 - also. He dismissed the applications for the reason that since the appellants prayer for being relegated to the original position had been rejected by him and also by the High Court in revision, it must be taken to have been finally settled that the appellant could not lead evidence the final hearing of the two suits was over. The only proceeding in which the appellant could participate was in hearing the judgment and therefore, he added, "the applicant is now entitled only to hear the judgment". On the same day - September 25, 1958 - the judgment which had already been prepared was delivered. The judgment readthe suits are decreed with costs ex parte with interest at 6% etc.To set aside this ex parte decree thus passed against him on September 25, 1958 the defendant filed an application under O. IX, R. 13. Obviously, the factual ground upon which the relief was sought, viz., that there was reasonable or sufficient cause for the appellants absence from Court on May 29, 1958 was the same as had been set out by him in the application which he had filed on May 31, 1958. This was opposed by the plaintiff who, besides repeating the challenge regarding the truth of the illness, raised three legal objections of a preliminary nature. Some of these have been upheld by the Civil Judge and the High Court but each one of them was sought to be supported before us by Mr. Pathak for the respondents. They were : (1) that the finding recorded in the earlier application filed on May 31, 1958 in suit 134 of 1956 that there was not sufficient cause for non-appearance on May 29, 1958 operated as res judicata in the petition filed under O. IX. R. 13 and was a bar to the re-inquiry of the same question on the merits, (2) the finding in the application to set aside the dismissal for default of suit 20 of 1953 which had become final operated as a bar to the trial of the same question in the application under Order IX, Rule 13 in suit 134 of 1956, and (3) that the decree in suit 134 of 1956 was not in reality an ex parte decree but was a decree on the merits within O. XVII, R. 3, Civil Procedure Code and hence the remedy of the appellant was only by way of an appeal against the decree and he could not come in by way of an application under O. IX, R. 13. The learned Civil Judge upheld the first preliminary ground of objection and dismissed the application. The appellant thereupon filed an appeal to the High Court and the learned Judges likewise held that any inquiry, into the question whether that appellant had sufficient cause for non-appearance on May 29, 1958 was barred by re judicata by reason of the decision of the same matter in the earlier proceeding under O. IX, R. 7. It is from this judgment of the High Court that the present appeal has been brought by special leave under Art. 136 of the Constitution.

Reasoning:
11. We agree that generally speaking these propositions are not open to objection. If the court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in laterdecision, therefore, that there was no sufficient cause for the non-appearance of the plaintiff in that suit would not be eadem questio with the matter which arose for decision when the application under O. IX R. 7 was made in suit 134 of 1956 notwithstanding that the facts upon which the issue depended was similar and possibly identical. This is a further reason why we are unable to accept the submission of learnedthe first place during the entire proceeding right up to the hearing of the present application which was made under O. IX R. 13 the Court as well as both the parties proceeded on the basis that the decree was passed ex parte. The order sheet on May 29, 1958 we have extracted earlier contained a direction by the Court that the case will proceed ex parte for the reason that Counsel for the defendant reported no instructions. And it must be noticed that by that date the entire hearing was over. The application that was made to set aside this order to proceed ex parte was filed on the basis that the previous hearing was ex parte and contested by the respondent on the same basis. The order of the High Court is revision on September 4, 1958 proceeds on the same basis. When finally judgment was pronounced by the Civil Judge in suit 134 of 1956 it expressly stated that it was a decree ex parte. In the face of these circumstances there should be overwhelming evidence of the proceedings not being ex parte if the respondent is to succeed in his present plea. In order that the decree passed was one under O. XVII R. 3 which is the submission of Mr. Pathak the opening words of that rule must be satisfied. That rule readsany party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suitregard to this the Civil Judgeground on which this objection is based is that 29-5-58 was the date adjourned at the instance of the defendant-applicant. I do not think that this ground has any force. It appears from the record that on 28-5-58 the cases were adjourned to 29-5-58 on a joint application of the parties to the effect that a compromise would be filed. It was not, therefore, an adjournment sought by the defendant alone, moreover, that application was made by him in his own suit No. 20 of 1953 and the other two suits had also naturally to be adjourned as all the three of them were consolidated. The adjournment of those two suits, therefore, cannot be said to be at the instance of theCounsel was unable to point any flaw in the facts here stated. It would, therefore, follow that the terms of O. XVII R. 3 were not attracted at all and that suit 134 of 1956 was decreed not on merits but really ex parte as had been expressly stated by the learned Civil Judge when he passed that decree.