Bhanu Kumar Jain v Archana Kumar (2005)

A defendant against whom an ex parte decree has been passed has two remedies: an appeal under s. 96(2), and an application under Order IX Rule 13. The Explanation to Rule 13 bars the application once an appeal against the ex parte decree has been disposed of on any ground other than withdrawal. The question this case answers is what a defendant may argue where he has taken both routes — and it answers it by dividing the subject-matter of the two remedies rather than by extinguishing one of them.

Learn the case for the dichotomy it draws. In the first appeal the defendant may attack the decree on the merits; he may not re-argue whether the trial court was right to proceed ex parte or whether he had sufficient cause for his absence.

N.N. Mukherjee owned the suit premises. He died leaving a wife, Suchorita Mukherjee (the original first defendant), a son, P.P. Mukherjee (the original plaintiff), and a daughter, Archana Kumar (the original second defendant); the family was said to be governed by the Dayabhaga school. The son filed a suit for partition in 1976. The husband of Archana Kumar also filed a written statement and a counter-claim, setting up a mortgage by deposit of title deeds over the suit property said to have been created by his mother-in-law.

Suchorita Mukherjee died on 15 September 1984 and the parties were transposed. No documents were filed by the first defendant, and none in support of the counter-claim.

Issues were framed, including whether a partition had taken place during the deceased's lifetime, what the plaintiff's share was, whether the claim was barred by limitation, and whether an earlier decision of 22 November 1975 operated as res judicata. An additional issue was framed on 13 June 1985 and the case fixed for evidence on 3 August 1985.

The default. On 3 August 1985 no one appeared for the defendants; at 2.35 p.m. an adjournment was sought on the ground that the defendant could not come from Delhi. The plaintiff closed his evidence and was not cross-examined. Costs of Rs 200 were imposed, with a direction that if they were not paid the right of cross-examination would be closed. On 7 October 1985 counsel for the defendant was again absent and the costs were unpaid; the case was directed to proceed ex parte and the right of cross-examination was forfeited. The case was fixed for final argument on 11 October 1985, when again the defendants did not appear; it was adjourned owing to a strike of advocates and then fixed for judgment.

The High Court of Madhya Pradesh at Jabalpur dealt with the matter in First Appeal No. 109 of 1986, and its judgment of 19 December 2002 came up to the Supreme Court.

What are the remedies available to a defendant against whom an ex parte decree has been passed, and what may he argue in a first appeal under s. 96(2) where his application under Order IX Rule 13 has failed?

The appeal was allowed and the case remitted to the High Court to consider the parties' case on the merits, the High Court being requested to dispose of the appeal preferably within three months given that the suit had been pending since 1976.

A statutory right of appeal is not to be cut down. The right to question the correctness of a decree in a first appeal is a statutory right. It shall not be curtailed, nor any embargo fixed on it, unless the statute expressly or by necessary implication says so.

The remedy against refusal under Order IX Rule 13. When an application under Order IX Rule 13 is dismissed, the defendant's remedy is to prefer an appeal under Order XLIII Rule 1. Once that appeal is dismissed, he cannot raise the same contention in the first appeal against the decree. To permit the same contention in both proceedings would lead to a conflict of decisions, which is not contemplated in law.

The dichotomy. The court resolves the difficulty by dividing the ground:

- The defendant is not permitted to raise in the first appeal any contention as to the correctness of the order posting the suit for ex parte hearing, or as to the existence of sufficient cause for his non-appearance before the trial court. - He is permitted to argue the first appeal under s. 96(2) on the merits of the suit — that the materials brought on record by the plaintiff were not sufficient for a decree in his favour, or that the suit was otherwise not maintainable. Lack of jurisdiction is also a possible plea in such an appeal.

Strict construction of the Explanation. The court agreed that the Explanation to Order IX Rule 13 must receive a strict construction, as had been held in Rani Choudhury, P. Kiran Kumar and Shyam Sundar Sarma v Pannalal Jaiswal (2005).

The objection to pursuing both remedies. The judgment notes the older concern, expressed in the authorities it reviews, that it would be a matter for great regret if a party could pursue both of two alternative remedies in succession, and that recognition of such a right would be a unique incident in our procedure. The dichotomy is the answer to that concern: the two remedies survive, but each has its own subject-matter, so neither duplicates the other.

A subsidiary point on parties. The appellant's locus was upheld. Having become the legal representative of the original plaintiff, he could have been substituted under Order XXII Rule 10; and even without such substitution an application on his behalf under Order I Rule 10 was maintainable.

For a question on remedies against an ex parte decree, set out the full menu first — an application under Order IX Rule 13; an appeal under s. 96(2); a review under s. 114 read with Order XLVII; and, where fraud is alleged, a separate suit — and then use this case to explain how the first two interact.

The examinable sentence is: after the dismissal of an Order IX Rule 13 application and of the appeal under Order XLIII Rule 1 against that dismissal, the defendant may still prosecute his first appeal against the decree, but confined to the merits, maintainability and jurisdiction, and not to the propriety of the ex parte order or the sufficiency of his cause for absence.

Remember the limitation figures alongside: an application under Order IX Rule 13 must be made within thirty days under Article 123 of the Schedule to the Limitation Act.

The Explanation to Order IX Rule 13 works only one way. It bars the application where the appeal has been disposed of. It does not bar the appeal where the application has been dismissed. That asymmetry is what makes the dichotomy in this case both necessary and workable.