JAYAPRAKASH & ANR. versus T. S. DAVID & ORS. on 25 January 2018

262

[2018] 1 S.C.R. 262

SUPREME COURT REPORTS

[2018] 1 S.C.R.

A

JAYAPRAKASH & ANR.

v.

T. S. DAVID & ORS.

(Civil Appeal No. 883 of 2018)

B

JANUARY 25, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Code of Civil Procedure, 1908 – Or.IX, r.13 – Setting aside ofex parte decree – Suit for specific performance of agreement forsale of suit property filed by appellants on the ground thatCrespondents-defendant nos.1 and 2 failed to complete saletransaction as per the terms of agreement despite taking the advancemoney from appellants and instead sold the suit properties todefendant nos.3 and 4 – Respondents remained ex parte sinceinception – Ex-parte decree passed against respondents jointly andDseverally – Defendant no.3 and 4 applied for setting aside the exparte decree under Or.IX, r.13 – Trial court set aside the ex partedecree and restored the original suit to its file to decide the suitafresh on merits – On remand, defendant nos.1 and 2 remained exparte – Trial court again decreed the suit against all the fourdefendants – Defendant nos.3 and 4 filed appeal before High CourtE– High Court allowed the appeal and again remanded the case totrial court for fresh trial – Whether High Court was justified inremanding the case to trial court for its denovo trial – Held:Defendant nos. 1 and 2 were entitled to a notice of the proceedingsunder Or.IX, r.13 in terms of local amendment made by the State ofFKerala in the first proviso to Or.IX, r.13 wherein the words “afternotice to them” were inserted – This local amendment made in thefirst proviso was applicable to defendant nos. 1 and 2 – No noticewas served on defendant Nos. 1 and 2 before setting aside the exparte decree and in their absence, the suit was restored – This wasone irregularity committed by the trial court while restoring the entireGsuit, though it was for the benefit of defendant Nos. 1 and 2 – Afterthe suit was restored at the instance of defendant nos. 3 and 4, thetrial court committed another error inasmuch as it again did notissue fresh notice of the suit to defendant nos. 1 and 2 – In otherwords, defendant nos. 1 and 2 were entitled for a fresh notice of the H

suit once restored despite their non-appearance in the first roundof trial in the suit and in Or.IX, r.13 proceedings – The two legalinfirmities call for remand of the case to the trial court for freshadjudication of the civil suit on merits in accordance with law –Specific performance – Decree – Ex-parte decree – Notice.

Dismissing the appeal, the Court

HELD: 1. The Trial Court will now issue fresh notice todefendant Nos. 1 and 2 in the suit by usual mode of service andthen by substituted service, if need arises. It is only after theservice of the suit is held complete on defendant Nos. 1 and 2,the Trial Court will proceed with the trial in the suit on merits.[Para 22][266-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 883 of2018.

From the Judgment and Order dated 05.11.2014 of the High Courtof Kerala at Ernakulam in RFA No. 541 of 2007.

C. S. Rajan, Sr. Adv., A. Raghunath, Ms. Pushpa Devi Sikri, Advs.for the Appellants.

Thomas P. Joseph, Sr. Adv., V. Sreedha Reddy, Abhijit Sengupta,Jayant Muthraj, C. K. Sasi, Advs. for the Respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed by the plaintiffs against the final judgmentand order dated 05.11.2014 passed by the High Court of Kerala atErnakulam in R.F.A. No.541 of 2007 whereby the High Court allowedthe appeal filed by defendant Nos. 3 & 4 (respondent Nos.1 & 2 herein)and set aside the judgment and decree dated 20.02.2007 passed by thesub-Court, Kottayam in O.S. No.337 of 2001.

3. In order to appreciate the short controversy involved in theappeal, few relevant facts need mention hereinbelow.

4. The appellants are the plaintiffs whereas the respondents arethe defendants in the civil suit out of which this appeal arises.

5. The appellants filed a civil suit being O.S. No. 337/2001 againstthe respondents (defendants) in the Court of Principal Sub-Judge, A

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AKottayam for specific performance of the agreement (Ex-A-1) for saleof suit properties to the appellants by the respondents (defendant Nos.1-4) for a total consideration of Rs.5,70,000/-.

6. According to the appellants, since defendant Nos. 1 and 2(original owners of the suit properties) failed to sell the suit properties toBthe appellants as per the terms of the agreement despite taking advancemoney from the appellants and instead sold the suit properties todefendant Nos. 3 and 4, the appellants filed the suit against defendantNos. 1 to 4 seeking specific performance of the agreement (Ex-A-1)against defendant Nos. 1 and 2.

C7. The defendants (respondents) were served by substitutedservice. They, however, remained ex parte since inception. The TrialCourt, therefore, on 27.02.2004 passed an ex parte decree against thedefendants (respondents) jointly and severally.

8. Thereafter, defendant Nos. 3 and 4 applied for setting aside ofDthe ex parte decree dated 27.2.2004 under Order 9 Rule 13 of the Codeof Civil Procedure, 1908. The Trial Court, by order 20.12.2006, allowedthe application and set aside the ex parte decree and restored the originalsuit to its file to decide the suit afresh on merits.

9. On remand, defendant Nos. 3 and 4 filed the written statement.ESo far as defendant Nos. 1 and 2 are concerned, they remained exparte. The Trial Court, by judgment/decree dated 20.02.2007, againdecreed the suit against all the four defendants jointly and severally.

10. Defendant Nos. 3 and 4 felt aggrieved and filed first appealbefore the High Court. By impugned judgment, the High Court allowedFthe appeal and while setting aside the judgment/decree of the TrialCourt again remanded the case to the Trial Court for fresh trial on merits.In the opinion of the High Court, the Trial Court did not decide the issuesarising in the case properly and, therefore, the entire case needs a freshconsideration with a liberty to parties to adduce further evidence. Thecase was accordingly remanded to the Trial Court.

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11. The plaintiffs felt aggrieved by the impugned judgment andhave filed this appeal by way of special leave in this Court.

12. Therefore, the short question, which arises for considerationin this appeal, is whether the High Court was justified in remanding thecase to the Trial Court for its de novo trial.H

13. Heard Mr. C.S. Rajan, learned senior counsel appearing forthe appellants and Mr. Thomas P. Joseph, learned senior counsel forrespondent Nos. 3 & 4 and Mr. C.K. Sasi, learned counsel for respondentNos. 1 & 2.

14. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no merit in this appeal.

15. In our opinion, the remand order of the High Court to try thesuit afresh on merits appears to be correct, though we uphold the remandorder on additional grounds, which were not taken note of by the HighCourt and nor urged here. In our opinion, therefore, the remand of thecase to Trial Court is otherwise called for.

16. It is not in dispute that all the four defendants (1 to 4) sufferedex parte decree on 27.02.2004 jointly and severally. It is also not indispute that only defendant Nos. 3 and 4 applied to the Court for settingaside the decree under Order 9 Rule 13 of the Code. This applicationwas allowed by the Trial Court by order dated 20.12.2005 which resultedin setting aside of the entire ex parte decree against all the defendants,including defendant Nos. 1 and 2 though they did not apply for its settingaside. The suit was accordingly restored to its file for fresh trial onmerits.

17. In our view, defendant Nos. 1 and 2 were entitled to a noticeof the proceedings under Order 9 Rule 13 of the Code in terms of localamendment made by the State of Kerala in the first proviso to Order 9Rule 13, wherein the words “after notice to them” were inserted. Thislocal amendment made in the first proviso to Order 9 Rule 13 wasapplicable to defendant nos. 1 and 2. When enquired, it was stated thatno notice was served on defendant Nos. 1 and 2 before setting aside theex parte decree and in their absence, the suit was restored. This was,in our view, one irregularity committed by the Trial Court while restoringthe entire suit, though it was for the benefit of defendant Nos. 1 and 2.

18. Be that as it may, in our considered opinion, after the suit wasrestored at the instance of defendant Nos. 3 and 4, the Trial Courtcommitted another error inasmuch as it again did not issue fresh noticeof the suit to defendant Nos. 1 and 2. In other words, defendant Nos. 1and 2 were entitled for a fresh notice of the suit once restored despitetheir non-appearance in the first round of trial in the suit and in Order 9Rule 13 proceedings.

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A19. The Trial Court, however, again decreed the suit by judgment/decree dated 20.02.2007 ex parte against defendant Nos. 1 and 2 butafter hearing only defendant Nos. 3 and 4. It is against this judgmentand decree which was impugned in appeal by defendant Nos. 3 and 4,which was again set aside by the High Court by impugned judgmentresulting in remand of the case to the Trial Court for fresh trial on meritsBgiving rise to filing of this appeal by the plaintiffs.

20. As mentioned above, though we are inclined to uphold theremand order, but that we do so on the basis of aforementioned twogrounds noticed by us in the proceedings in the suit and in Order 9 Rule13 proceedings. The two legal infirmities noticed by us in the proceedingsCcall for remand of the case to the Trial Court for fresh adjudication ofthe civil suit on merits in accordance with law.

21. In the light of the foregoing discussion, the appeal fails and isaccordingly dismissed.

22. The Trial Court will now issue fresh notice to defendant Nos.1 and 2 in the suit by usual mode of service and then by substitutedservice, if need arises. It is only after the service of the suit is heldcomplete on defendant Nos. 1 and 2, the Trial Court will proceed withthe trial in the suit on merits.

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23. So far as defendant Nos. 3 and 4 are concerned, they arealready served and hence they are not entitled to any notice.

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24. Parties to appear before the Trial Court in the Suit on 05.02.2018to enable the Trial Court to proceed in the trial as directed above. TheTrial Court will decide the suit on merits strictly in accordance with lawFexpeditiously.

Devika Gujral

Appeal dismissed.

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