TRILOK SINGH Vs. KARTAR SINGH

JUDGEMENT

(1.) This is a second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 14.10.97 whereby the court below declined to condone the delay in filing an appeal under Section 96 of the Code of Civil Procedure against the exparte decree in Civil Suit No. 14 -A/96. It is not disputed before me that common questions of facts and the law arise in the connected Second Appeal No. 782/97. Therefore, both these appeals were heard on the question of admission and are being decided finally after hearing counsel for the parties. The Appellant had stated in paragraph v. of the Memo of the Appeal that the ex parte decree was passed without service of notice, Consequently, an application for setting aside the ex parte decree was made under Order 9 Rule 13 of the Code of Civil Procedure. It has been stated that the trial court did not grant stay of execution proceedings and directed the Appellant to file this appeal and obtain stay from the appellate court. Therefore, the appeal was filed. This Court had already held on 18.12.97 that the order refusing to condone the delay and consequently dismissing the appeal amounted to a decree as was held by the Full Bench in Manlram v. Fuleshwar ( : 1996 JLJ 328), there can be hardly any objection on this count. However, the question of initial maintainability of the first appeal is troublesome question and it would be better that this question is solved by this Court. The grounds of appeal in the court below amounted to saying that the Appellant was not served and therefore, the decree passed by the trial court was liable to be set aside. The same ground was taken by the Appellant in the application under Order 9 Rule 13 of the Code of Civil Procedure. The court below has dismissed the appeal as barred by time and also held that the appeal is not maintainable. The counsel for the parties addressed the court on both the counts. The counsel for the Appellant argued that even filing of an application under Order 9 Rule 13 of the Code of Civil Procedure did not deprive the Appellant of his right to file the first appeal. It was argued that the Appellant was entitled to say in the first appeal that he was not at all served and he cannot be treated as served in the eyes of law. The procedure adopted by the trial court was wrong. It was argued that this question is as much as a question on merits as any other. It was further argued that the Appellant could tile the appeal under Section 96(2) of the Code of Civil Procedure questioning the merits of a decree and, therefore, this statutory right could not be whittled down by the extraneous circumstance of filing an application Under Order 9 Rule 13 of the Code of Civil Procedure. There was no bar to the filing of the appeal on the ground aforesaid under Section 96(2) of the Code of Civil Procedure or under Order 9 Rule 13 of the Code of Civil Procedure. It was argued that explanation to Order 9 Rule 13 of the Code of Civil Procedure bars an application under that provision on dismissal of the appeal filed against decree except when it is withdrawn. It was further argued that the court below should have considered the delay in filing the appeal. The lower appellate court had applied the strict standard. It was argued that the same principle be applied as was envisaged in second part of Article 123 of the Limitation Act, 1963 for the purpose of condonation of delay as the first appeal could not be filed unless the Appellant had the knowledge of the decree passed against him. The learned Counsel for the Respondent supported the order of the court below and argued that the Appellant having taken recourse to the remedy under Order 9 Rule 13 of the Code of Civil Procedure now filed an appeal under Section 96(2) of the Code of Civil Procedure. It was argued that the legislature had provided specific remedy of getting the decree set aside under Order 9 Rule 13 of the Code of Civil Procedure. That remedy is the best remedy for establishing that there was sufficient cause for non -appearence in the trial because summons was not served. The Appellant had filed an application under Order 9 Rule 13 of the Code of Civil Procedure. The Appellant cannot file the appeal merely because he could not obtain stay of the execution of the decree. The dismissal of the first appeal, as barred by time, was supported on the grounds mentioned by lower appellate Court. This Court shall examine both the aspects of the matter i.e. whether the appeal filed in the court below was barred by time and also the question if an appeal lay against the passing of the ex parte decree on the ground of non -service of summons despite the remedy of Order 9 Rule 13 of the Code of Civil Procedure. The reason for deciding the point is, if the court comes to the conclusion, that In filing of the appeal, the delay should have been condoned by the court below, the further question whether the appeal lay at all is also settled by the court rather than driving the parties to further litigation. The second question is of some importance. It has to be considered on general principles. It may be noted that the Code of Civil Procedure was framed for declaring the law on the matters of procedure to be followed in civil court. It is exhaustive on the law of procedure for it is a Code. Could it be said that the Code of Civil Procedure is wholly procedural and does not enact any substantive law. In the opinion of this Court, all that can be said is that the Code of Civil Procedure is primarily a law of procedure but it would not be proper to say that the Code of Civil Procedure does not contain substantive provisions of law. It would be difficult to draft a Code of Procedure bereft of substantive provisions of law. The Supreme Court in Sangram Singh v. Election Tribunal, Kotah ( : AIR 1955 SC 425) agreed with the decision of Madras High Court in Ventatasubbaih v. Lakshminarasimham ( : AIR 1925 Mad 1274) and held that it was one of the cardinal principles that a party had a right to appear and plead his cause on all occasions. The court had normally no power to refuse that right unless the Code of Civil Procedure permitted that course. It was also pointed out by the Supreme Court that after taking note of Sections 27 and 30(b) of the Code of Civil Procedure in the light of Section 32 thereof that penalty provided in Section 32 of the Code does not cover a case of party who does not appear. The penalty covered by Section 32 of the Code is referable to the persons whose presence may be necessary for furthering the trial. The spirit of the aforesaid Section 32 of the Code of Civil Procedure was applied1 for interpreting and holding that Order 9 was not penal. The Supreme Court had already observed in paragraph 17 at page 429, as following - Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to, But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. It is obvious, the procedure detailed in the Code of Civil Procedure is based on the principles of 'Natural Justice'. One of two pillars of the principles of Natural Justice is the principle of Audi alteram partem. It is very difficult to say that 'no man should be condemned unheard' is a principle of substantive law or that of procedural law. In the opinion of the court, the principle is so important that it can be said to be part of the either. The procedure is merely a handmaiden of justice and it is of essence of justice, that the man against whom an order is passed is required to be heard prior to passing of the order so that he may give his side of picture, It is obvious that the aforesaid principle also forms part of the procedure. This principle of "right of hearing" strides in the realm of procedure as well as the substantive law with one foot in one realm and the other in another. Like a Colossus only by comparing it with a giant figure, the importance of this principle is illustrated for it defies classification due to its importance. In fact, it spreads its wings in either territory. The principle, procedural as it is, becomes part of the substantive law by its sheer existence. Taking que from the aforesaid general statement, it could be argued that since this principle is the part of substantive law, an ex parte decree could be attacked in appeal, if the Appellant established that by a mistake of the trial court, the Appellant was denied the right of hearing. There can be hardly two opinions about the aforesaid argument. However, it has been argued that the legislature had given a special remedy of Order 9 Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree for any sufficient cause whereby the Defendant was prevented from appearing before the court below. The Appellant was, therefore, entitled to move the court below under Order 9 Rule 13 of the Code of Civil Procedure and had done so. That remedy was more specific becuase it allowed the Appellant to prove by leading evidence that he was not served. This could be done conveniently by the trial court. The appellate court does not record evidence in appeal. If the case is remanded by the lower appellate court for verifying the question of service, there shall be duplication of work causing confusion, Therefore, it should be proper to hold that the Appellant may file an appeal against ex parte decree on all other questions which are not covered by Order 9 Pule 13 of the Code of Civil Procedure. It is pointed out that the explanation to Order 9 Rule 13 of the Code of Civil Procedure gives due inportance to the decree of dismissal passed by the appellate court and deprives the Defendant of the remedy under Order 9 Rule 13 of the Code of Civil Procedure on any ground except withdrawal. A Division Bench of this Court in Ramlal v. Rewa Coal Field Ltd., Calcutta (1966 M.P.L.J. 507) discussing the law as stood unaffected by the explanation to Order 9 Rule 13 of the Code held that an appeal under Section 96(2) of the Code of Civil Procedure would lie on merits of the decree impugned. The merits of the decree included "an error, defect or irregularity" in any order affecting the decision of the case, within the meaning of Section 105(1) of the Code of Civil Procedure, In the view of the Division Bench unjustified refusal to grant adjournment may be a ground for setting aside an ex parte decree in the appeal under Section 96(2) of the Code of Civil Procedure, provided it affected the merits of the case. It was further held that the Appellant was not allowed to show in the appeal under Section 96(2) of the Code that he was prevented by any sufficient cause from appearing at the hearing. It was pointed out that the appeal on merits could not override the special remedy under Order 9 Rule 13 of the Code of Civil Procedure, nor could the appeal on merits be converted into an appeal under Order 43 Rule (1)(d) of the Code of Civil Procedure. The conclusion of the Division Bench is summed up in paragraph 7, at page 511, reproduced below - In our opinion, it is open to a Defendant, who has filed an appeal against and ex parte decree under Section 96(2) of the Code, to show from the record proceeding an ex parte against him, any error defect or irregularity which has affected the decision of the case, if he succeeds in so doing, the ex parte decree will be set aside and the case will be remitted for retrial, But, in the appeal against the exparte decree he cannot be allowed to show that he was prevented by any sufficient cause from appearing at the hearing. For that purpose, he must have recourse at the hearing to the special, procedure under Order 9, Rule 13 of the Code for setting aside the said decree. It appears to this Court that the legislature has furter clarified the position by enacting Order 9 Rule 13 of the Code of Civil Procedure. When the Appellant files an appeal on the ground that the trial court wrongly held that the service was effected upon him, he is filing the appeal on the defect, error or irregularity in the order holding the service as validly effected. He is not showing sufficient cause for his non -appearence in the appeal though this would be the consequence of the order impugned. It can be, therefore, held that an appeal shall lie against an ex parte decree, if the trial court erroneously holds that the Defendant was served or does not pass any order after summons was returned with the report of refusal and proceeds ahead on the assumption that the Defendant must be deemed to have been served. There can be no doubt that passing an ex parte decree on merits on the assumption of valid service or refusal, without any proper material on record, would be an error, defect or irregularity affecting the merits of the decision within the meaning of Section 105(1) of the Code of Civil Procedure. An appeal would definitely lie under Section 96(2) of the Code of Civil Procedure Code. The matter is rendered beyond doubt by addition of Order 43 Rule 1 -A(1) of the Code of Civil Procedure. The wrong order treating the party served can be attacked in appeal against ex parte decree under Section 96(2) of the Code of Civil Procedure with the aid of aforesaid rule too. However, there is a rider to the above proposition. It has been laid down by R.S. Pathak, J. in paragraph 3 as follows after amendment in Rani Choudhary v. Suraj Jit Choudhary ( : AIR 1982 SC 1397) - By enacting the Explanation, Parliament left it open to the Defendant to apply under R.13 of 0.9 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 the merits of the decree or have the decree set aside by the trial court under R.13 of 0.9. The legislative attempt incorporated in 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 0.9. The disposal of the appeal on any ground whatever, apart from the withdrawal, constituted sufficient reason for bringing the ban into operation. Similar observations were not made in the leading judgment of A.N. Sen, J. with whom R.S. Pathak, J. was sitting. The aforesaid observations are not explicit in the explanation. The explanation says that dismissal of an appeal against the ex parte decree would debar the Defendant from filing an application under Order 9 Rule 13 of the Code of Civil Procedure. It has been urged on behalf of the Appellant that the aforesaid observations are not only per incuriam(sic) but also obiter and this Court is not bound by them. However, a Division Bench of this Court in the case reported in Sumera v. Madanlal ( : AIR 1989 M.P. 224) feft bound by these observations and dismissed the appeal filed after passing of the ex parte decree. The Division Bench stated its conclusion in paragraph 4, at page 224 as follows - Reading their Lordships' holding aforesaid we are tied hands and feet to say anything further in the matter. However, we make it clear if there is any subsequent judgment of their Lordship clarifying the position or modifying the law in any manner it shall be open for the Petitioner to apply for review of this order. When the Division Bench of this Court felt bound by the order, there is no scope for any other argument. This Court is guided by the decision of the Division Bench. The lower appellate court has also referred to the decision of the Division Bench. Moreover this Court finds that the appeal under Section 96(2) of the Code of Civil Prcedure was filed not because the Appellant could be or was debarred from proceeding with the application under Order 9 Rule 13 of the Code of Civil Procedure. The memo of appeal indicated that the Appellant was not able to get stay of the execution of the decree and, therefore, he filed the appeal at the behest of trial court. If this be the reason for filing the first appeal under Section 96(2) of the Code of Civil Procedure the first appeal filed by the Appellant is barred by the principles of estoppel. The Appellant had filled the application under Order 9 Rule 13 of the Code of Civil Procedure. It is not his case that this remedy was not adequate. The reason for filing the appeal was that he did not get stay. It is not the case of the Appellant that the court hearing the application under Order 9 Rule 13 of the Code of Civil Procedure was not empowered to stay the execution of thje(sic) exparte decree. The reason that the court did not stay the execution of the decree is not sufficient, to enable the Appellant to grant him permission to file the appeal. He was estopped by his conduct. It is well established that a person should not be vexed twice for the same cause. This principle is nothing but an off -shoot of the principle of estoppel. Instead of challenging the order of refusal of stay of execution proceedings by court, which was hearing the application under Order 9 Rule 13 of the Code of Civil Procedure, the Appellant filed this appeal, with the sole purpose of obtaining stay of execution of the decree. This approach he cannot be permitted to adopt. He is estopped from doing so. It is true that the appellate court had taken the strict view of the matter. The ex parte decree was passed on 7.5.97. The Appellant was not aware of the decree till 31.8.97. Therefore, on the date of knowledge of decree, the appeal was barred by time. He filed the appeal on 6.9.97. There the Appellant was required to explain the delay from 7.6.97 to 8.9.97. The first appellate court was of the view that the Appellant did not explain the delay of each day. The Appellant did not apply for certified copy of judgment and decree on 1.9 97. He applied for obtaining the certified copy of decree on 3.9.97. In absence of any explanation, the Appellant had not explained the delay of each day. For this purpose, the court below had relied upon the decisions of Supreme Court reported in : AIR 1962 SC 361, : AIR 1967 M.P. 107, : 1966 JLJ 711 and others decided by different High Courts in their judgments. The discretion exercised by the court below in refusing to condone the delay does not suffer from any substantial error of law. There is in fact no substantial question of law involved, nor there is any error of fact which could be said to be based on a perverse finding. The result is that there is no merit in this appeal. It fails on both counts, so also the connected appeal (Second Appeal No. 782/97). Both the second appeals are dismissed. No costs.