MBHD IQBAL Vs. K JAGADESHWAR RAO

JUDGEMENT

(1.) The facts are eloquent giving rise to interesting questions of law touching jurisdiction and its exercise thereof. The facts lie in a short compass. The appellant laid the suit for possession against four persons including the respondent, alleging that the first defendant is a tenant, defendants 2 and 3 are sub-tenants and the respondent-4th defendant is a trespasser. Summons have been taken to them. It is now found as a fact that the summons have not been served on the respondent, but one Mr. B. Jagal Reddy filed written statement on behalf of defendant No. 1, on December 29, 1987 and vakalath also was signed by him on behalf of the respondent. A memo was filed adopting the written statement on behalf of defendants 2, 3 and 4. The suit was posted for trial on June 27, 1988. On application at the behest of the plaintiff the date of hearing was advanced to March 30, 1988. On that day, an additional written statement was filed admitting the plaint averments; issues were framed and formal trial has been gone through. The suit was decreed on April 26, 1988. E P 3/88 was filed on May 31, 1988, warrant of delivery was issued and possession was taken on June 3, 1988. Against the delivery proceedings, the respondent filed CRP No. 1663/88 under Article 227 of the Constitution; by order dated June 13, 1988, this Court dismissed the C R P observing that serious allegations have been made against the Counsel, Presiding Officer and the plaintiff and other defendants. It is stated : ''these charges, if proved, must be construed to be serious enough and grounds for interference under Article 227 of the Constitution". But the learned Judge was not inclined to go into the merits since there is a right of appeal under Section 96 (2) of the Code of Civil Procedure (Act 5 of 1908), for short, "the Code", and gave the following directions :

(2.) It is now claimed by the respondent that pursuant to the restitution application, he was inducted into possession on September 19, 1988, but the C M A was filed and interim stay was granted on September 29, 1988. The first contention of Sri Narasimhachary, learned Counsel for the appellant is that Order 9. Rule 13 provides remedy to set aside the ex parte decree; therefore unless the remedy thereunder is availed and exhausted, the respondent has no right to file an appeal under Section 96 (2) of the Code. In support there of, he relied on Sohanlal v Kedarnath (1) AIR 1969 Calcutta 516. I find it difficult to accede to the contention. The Code provides four remedies against an ex parte decree. Firstly, it is open to the defendant to make an application under Order 9 Rule 13 or to file an appeal under Section 96(2) or to file a review under Order 47 Rule 1, or an independent suit alleging fraud on the defendant and on the Court, As regards the right of these remedies are concerned, it,is always open to the suitor to elect any one of the remedies. It is now well settled by catena of decisions of several High Courts including the Madras High Court and this Court, that simultaneously the procedure under Order 9 Rule 13 and Section 96 (2) of the Code can be pursued. But no order could be passed after orders are passed under either of the provisions. This was so held in Levai Saheb vs Ameenammal (2) AIR 1924 Madras 107. In Kuruppan vs Ayyathori (3) ILR 9 Madras 445 by a Division Bench speaking through Muttuswamy Ayyar, J. it was held thus :

(3.) It is next contended that while entertaining the appeal, the Appellate Court by operation of Section 96 (2) of the Code, has no jurisdiction to reverse the ex parte decree on grounds of any error, defect or irregularity in any proceedings in the suit not affecting the case or jurisdiction of the Court except to decide on merits. In support thereof, he placed reliance on Gwalior Municipality Vs. Motilal (4) AIR 1977 M P. 182. I cannot accede to the contention raised by the learned Counsel. There is conflict of judicial opinions in this regard. In Sadbu Krishna Ayyar Vs Kuppan Ayyangar (5) ILR 30 Mad. 54 (FB) to which I am bound by, the facts were that the suit was filed against several defendants for possessior of the suit schedule properties. The suit was dismissed against some and withdrawn against some and ultimately it was decreed ex parte against the first defendant and others, consequent on their failure to appear before the Court. Then first appeal was filed assailing the legality of the decree and also lack of service of notice in the suit. The appellate Court found that the first defendant was not aware of the institution of the suit; summons were not properly serverd on her and accordingly the decree was set aside and remanded the suit for fresh trial against which C M A was filed. The question therein was whether the appellate Court can remand for fresh trial. In that context, the Full Bench speaking through Sir Arnold White, C J held that when a suit was decided ex parte, an appellate Court to which an appeal from the decree is preferred under Sec. 540 of the Code (Sec. 96 (2)), has jurisdiction to reverse the decree of the lower Court on the ground that such Court was wrong in law to decide the suit exparte and remand the suit for re-hearing. In Jethlal Giridhar Vs. Varajalal Bhai Shankar (6; AIR 1922 Bombay 267, the facts were that the Court refused the application for adjournment and proceeded to try the suit ex parte and passed an ex parte decree. On appeal, the appellate Court held that there was sufficient reason shown for an adjournment and set aside the ex parte order. Against that, C M A was filed. On C M A, the case was remanded. It was contended that there is no power for remand on appeal. It was held by Macleod, CJ speaking for the Court that :