Legality Of Order Setting Defendant Ex Parte Can Be Challenged In Appeal Even Without Filing Application Under Order Ix Rule 13 CPC: Supreme Court

Case Title:

G.N.R. Babu @ S.N. Babu Vs. Dr. B.C. Muthappa & Ors.

Bench:

Justices Ajay Rastogi and Abhay S. Oka

SUBJECT

The Orissa High Court has reaffirmed that even when an ex parte decision is overturned in accordance with Order IX Rule 13 of the CPC, the defendant cannot be reinstated in their previous position or be given permission to submit a written statement. The Single Judge Bench of Justice K.R. Mohapatra highlighted the comment from the State of Orissa verdict while providing the respondents with just limited relief.

Provisions: Rule 13 of Order IX of CPC

When an exparte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed exparte. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch cross examine the witness of the plaintiff and address arguments.

FACTS OF THE CASE

• The initial plaintiff, the first respondent (G.N.R. Babu), filed a lawsuit in the City Civil Court of Bangalore (now Bengaluru) seeking a declaration that he was the only owner of the land at issue in the lawsuit, Site No. 28 at BTM Layout, Bangalore. According to the first responder, Site No. 28 was made up of land bearing survey numbers 56, 57, and 60 of Bilkenahalli Village and 61, 71, and 72 of N.S. Palya Village, both located in Bangalore's Bangalore South Taluk. The suit property is referred to as Site No. 28 throughout the following.
• In addition to asserting a declaration of ownership, the first respondent argued that a modification made by the appellant to the suit property was unlawful, and as a result, a decree was requested for the structure's demolition.
• The second and third defendants, respectively, were the other two respondents in this appeal. By his decision and order dated September 19, 2015, the learned judge of the City Civil Court in Bangalore issued a declaratory judgement designating the first respondent as the rightful owner of the suit property.
• A decision ordering the demolition of the building on the suit property by the appellant and the second respondent was also issued. A order of permanent injunction further prohibited the appellant and the second respondent from visiting the subject property and interfering with the first respondent's peaceful ownership and enjoyment of it.
• The second respondent and appellant failed to show up after being served with summonses and did not raise any defences, the learned trial judge remarked. The High Court upheld the decree's merits in the contested decision and order.
• The learned counsel for the appellant Shri Anand Sanjay M. Nuli argued that the appellant's address listed in the cause title of the suit was incorrect and that on the date of institution of the suit, he was residing at another address listed in the grounds of appeal in support of the appeal in addition to raising various contentions on the merits of the decree. The summons for the lawsuit was not properly served on the appellant as a result.

ARGUMENTS MADE

• The senior attorney for the appellant argued that the High Court erred in assuming that the failure to serve the suit summons could only be challenged in an appeal to set aside an ex parte judgement under Order IX of the CPC's Rule 13.
• According to the learned attorney for the appellant, the appellant may always argue that the summons was not properly served or that it was otherwise unlawful to continue ex parte against him based on the suit's record.
• It was further argued that as can be seen from the appellant's rebuttal, the appellant built a multi-story building on the subject property of the lawsuit many years ago. The building is now occupied by the buyers of the premises located there.
• He claimed that a very harsh decision had been issued ordering the demolition of the building that had been built on the subject property of the lawsuit without adding the buyers of the premises therein as parties. He would consequently request that the trial court's ruling be overturned and that the case be remanded for a new decision.
• Asserting that the third respondent, the Bangalore Development Authority, was the owner of the suit property and that the first respondent was the allottee of the suit property from the third respondent, Shri Arvind Kamath, the knowledgeable senior counsel appearing for the first respondent-plaintiff, made this claim.
• He argued that, as is clear from the property description in the sale document, the sale deed on the basis of which the appellant is asserting possession is in relation to some other property. The learned senior counsel supported his argument by citing a ruling from this Court in the matter of Bhanu Kumar Jain v. Archana Kumar1 that the appellant-defendant can only challenge an ex parte decree on the basis of merits in an appeal.
• He can seek under Rule 13 of Order IX of CPC to appeal the decree on the grounds that the summons was not properly served on him or that he was prohibited from attending in the lawsuit for a good reason. He further cited a different ruling issued by this Court in the matter of Bhivchandra Shankar More v. BaluGangaram More2, in which the ruling in Bhanu Kumar Jain1 was upheld. He argued that because the appellant had not lodged an application to have the decree set aside, he was not authorised to dispute the trial court's ruling on the grounds that the summons had not been properly served.
• The first respondent has proved his title and control over the suit property, according to his argument, and the building that was built there is entirely illegal, according to the trial court's and the High Court's concurrent findings. Therefore, the knowledgeable senior counsel advocated for the dismissal of the current appeal.

JUDGEMENT

• In this case, the issue was whether the defendant was permitted to challenge the judgement on the ground that the Trial Court lacked jurisdiction to proceed ex parteagainst the appellant in the normal appeal, if he did not exercise his right to do so under Rule 13 of Order IX of the CPC.
• Although the appellant would not be permitted to present evidence on appeal to establish a good reason for his absence from the trial court, he could still make an argument based on the suit record that either the summons was not served on him or that the trial court lacked sufficient grounds to proceed ex parte against him.
• The rationale is because, in accordance with Section 105 of the CPC, any error, flaw, or irregularity in any order that affects how the matter is resolved may be used as a ground for complaint in the Memorandum of Appeal.
• As a result, in such a situation, the appellant can always argue that a temporary or interlocutory order made while the lawsuit was pending and impacting the outcome of the case was unlawful in an appeal against the decree.
• The appellant can thus always point out from the trial court's record that the decision given to proceed with the litigation ex parte against him was unlawful when challenging the ex parte decree by filing an appeal.
• According to the ruling in the matter of Bhanu Kumar Jain, a defendant cannot argue that the judgement ordering that the suit continue ex parte was invalid or unconstitutional when the application they submitted in accordance with Rule 13 of Order IX of PC is denied. However, the appellant in this instance has not submitted a request in accordance with Rule 13 of Order IX of the CPC.

CONCLUSION

The bench took note of the decision in Bhanu Kumar Jain, which stated that when a defendant's application under Rule 13 of Order IX of CPC is denied, the defendant is not entitled to make a claim regarding the validity or otherwise of the order setting the case for an ex parte hearing or the existence of a good reason for the defendant's non-appearance.

The court has taken note of the fact that the summons was ordered to be served in this instance through Registered Post AD without first confirming that the defendant's address, as indicated in the cause title of the lawsuit, was accurate. There was no justification for proceeding ex parte against the appellant-defendant.

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