AMIR MAHAMMAD Vs. SALIMAN BIBI

JUDGEMENT

(1.) THIS is an appeal challenging the order of learned Additional District Judge, Sonepur in RFA No. 45/45 of 2002-2004 setting aside the ex parte judgment dated 24-8-2002 passed by the learned civil Judge (Senior Division), Sonepur in t. S. No. 36 of 1999 and remanding the matter to the trial Court for fresh disposal on merit.

(2.) THE appellants as plaintiffs filed the above-noted suit for declaration of title, confirmation of possession and the alternative recovery of possession and also for permanent injunction against the defendants. The defendant-respondents did not contest that suit and in consequence ex parte judgment and decree was passed. The respondent-defendants challenged that ex parte judgment in the above-noted RFA. Learned first appellate Court held that there was sufficient cause for non-appearance of the defendants on the date of hearing. He also held that the suit should be decided on merit and accordingly set aside the ex parte judgment and remanded the matter to the trial Court.

(3.) MR. Siddhartha Mishra, learned counsel appearing for the appellants submits that once an ex parte judgment is passed the proper course for the defendants to set aside such judgment is to file a petition under order 9, Rule 13, CPC. According to him, in an appeal under Section 96 (2) of the CPC. there is no scope for the appellate Court to examine whether there was sufficient cause for non-appearance of the defendants on the date of hearing as such adjudication requires consideration of plea and evidence led by the parties. He states that the appellate Court can only examine whether the ex parte judgment and decree is sustainable on merits by considering the materials available on record as well as the legal position. In support of his contention, Mr. Mishra relies on the cases of Nagar Palika Nigam, gwalior v. Motilal Munnalal, AIR 1977 MP 182; Smt. Maya Devi v. Mehria Gram Dall mill, Hissar, AIR 1988 P and H 176 and Bhanu kumar Jain v. Archana Kumar, AIR 2005 SC 626. Mr. A. K. Panda, learned counsel appearing on behalf of dr. A. K. Rath and Associates, who are appearing for the respondents, on the other hand contends that for setting aside the ex parte judgment and decree Order 9, Rule 13, CPC is not the only recourse open for the defendants. According to him, a defendant, for setting an ex parte judgment and decree, may apply under Order 9, rule 13, CPC or for a review of the judgment under Order 47, Rule 1 or appeal against ex parte judgment and decree under Section 96 of the CPC. He states that once an appeal is preferred under Section 96 of the CPC against an ex parte judgment the appellate Court has the power to examine whether there was sufficient ground for non-appearance of the defendant on the date of hearing. In support of his contentions Mr. Panda relies on the cases of Jananendra mohan Bhadhury v. Prafullananda goswami, AIR 1928 Calcutta 812; prafullamani Dei v. Sadhu Dei, 1971 (1)CWR 867; Lal Devi v. Vaneeta Jain (2007) 7 scc 200 : (AIR 2007 SC 1889) and gangadhar Bhat v. Srikant, AIR 1981 Karnataka 35.