Abu Hussain vs Mohammad Abdullah & Ors
2021 Latest Caselaw 316 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR


                                                                           Reserved on: 03.03.2021
                                                                        Pronounced on: 16 .03.2021


                                                                                  FAO No.01/2021


                          Abu Hussain                                                 ...Appellant(s)

                                       Through: - Mr. M. A. Qayoom, Advocate

                          Vs.

                          Mohammad Abdullah & ors.                               ...Respondent(s)
                                       Through: - Mr. R. A. Jan, Sr. Advocated, with Mr. Taha
                                                  Khalil, Advocate-for R1.


                          CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                                           JUDGMENT

1) By this order, preliminary objection raised by the learned

counsel for the respondent No.1 with regard to the maintainability of

this appeal is proposed to be determined.

2) Before coming to the preliminary objection raised by the

learned counsel for the respondent No.1, let me give a brief

background of the facts leading to filing of this appeal.

3) It appears that the respondent No.1 had filed a suit against the

appellant and respondents 2 and 3 before the Court of Principal

District Judge, Kargil. Through the medium of said suit, the plaintiff

had sought a declaration that he is owner of land measuring 1½ kanals MOHAMMAD ALTAF BHAT 2021.03.16 14:56 I attest to the accuracy and integrity of this document

situated at Khurbathang Kargil, which he had purchased from the

appellant and respondent No.3, who happened to be the proforma

defendants No. 2 and 3 to the suit. A permanent injunction restraining

the defendants from proceeding with the construction of house on the

aforesaid land with a mandatory injunction directing the defendants to

remove the material from the suit land was also sought

4) It appears that the suit was decreed in exparte in favour of the

plaintiff i.e. the respondent No.1 herein, by virtue of an exparte

judgment and decree dated 13.12.2019. An application for setting

aside the aforesaid exparte judgment and decree came to be filed by

the appellant and respondent No.3 herein before the learned trial court

but the same was dismissed by the learned trial court vide its order

dated 26.12.202, which has been impugned by way of the instant

appeal.

5) It is the contention of learned senior counsel appearing for the

respondent No.1 that the exparte judgment and decree that was passed

by the learned trial court has nothing to do with the appellant herein as

he was only a proforma defendant in the suit. According to the learned

senior counsel, the judgment and decree has been passed only against

the contesting defendant i.e. respondent No.2 herein and, as such, it

cannot be stated that the appellant is an aggrieved person. On this

ground, it is urged that the appeal filed by the appellant is

incompetent. The learned senior counsel has relied upon the judgment

of the Supreme Court reported in (2013) 11 SCC 296, the judgment of MOHAMMAD ALTAF BHAT 2021.03.16 14:56 I attest to the accuracy and integrity of this document

Chattisgarh High Court reported in AIR 2009, Chatt. 44 and the

judgment of Delhi High Court reported in AIR 1977 Del. 110.

6) On the other hand, learned counsel for the appellant has

submitted that the appellant was a defendant in the suit before the trial

court and his application for setting aside the exparte judgment and

decree was dismissed by the learned trial court and, as such, the

appeal filed by him in terms of Order 43 Rule 1(d) of the Code of

Civil Procedure is maintainable.

7) I have heard learned counsel for the parties and perused the

material on record.

8) It is not in dispute that the appellant herein was a party to the

suit before the trial court, though he was impleaded as a proforma,

defendant but, nonetheless, he was a party to the suit. It is also not in

dispute that the appellant herein had approached the learned trial court

with an application for setting aside the exparte judgment and decree

but the same stands dismissed by the learned trial court. Once the

application of the appellant under Order 9 Rule 13 of the Code of

Civil Procedure was dismissed by the learned trial court, the remedy

available to him was to file an appeal against the said order in terms of

Order 43 Rule 1(d) of the CPC, the order rejecting an application for

setting aside an exparte judgment and decree being an appealable

order in terms of the aforesaid provision.

MOHAMMAD ALTAF BHAT 2021.03.16 14:56 I attest to the accuracy and integrity of this document

9) So far as the contention of the learned senior counsel appearing

for the respondent No.1 that the exparte judgment and decree passed

by learned trial court was passed only against the contesting defendant

and not against the proforma defendant i.e. the appellant herein and,

as such, he was not an aggrieved person and consequently he could

not have maintained an application under Order 9 Rule 13 of the CPC

before the learned trial court, is concerned, this Court is not concerned

with the said question at this moment of time. So far as the merits of

the order passed by the learned trial court while rejecting the

application of the appellant for setting aside of exparte judgment and

decree are concerned, the same will be considered at its appropriate

time and it will be open to the respondent No.1 to urge all the grounds

available to him at that time but at this moment of time, this Court is

only concerned with the maintainability of the appeal, which, in my

considered view, is definitely maintainable keeping in view the fact

that the order of rejection of an application filed for setting aside

exparte judgment and decree is appealable in terms of Order 43 Rule

1(d) of the CPC.

10) I am supported in my aforesaid view by the judgment of the

Supreme Court in the case of Bhanu Kumar Jain v. Archana

Kumar & anr. (2005) 1 SCC 787. In the said case it has been

clearly laid down that when an application under Order 9 Rule 13

of the CPC is dismissed, the defendant can only avail a remedy

MOHAMMAD ALTAF BHAT 2021.03.16 14:56 I attest to the accuracy and integrity of this document

available there against, namely, to prefer an appeal in terms of

Order 43 Rule 1 of the Code.

11) For the foregoing reasons, I do not find any merit in the

preliminary objection raised by learned counsel for the

respondent No.1 and, accordingly, the appeal is held to be

maintainable. The same shall now come up for consideration on

22nd of March, 2021.

(Sanjay Dhar) Judge Srinagar 16 .03.2021 "Bhat Altaf, PS"

                                             Whether the order is speaking:          Yes/No
                                             Whether the order is reportable:        Yes/No

Pronounced today on 16.03.2021 in terms of Rule 138(3) of

the Jammu and Kashmir High Court Rules, 1999.

(Vinod Chatterji Koul) Judge

MOHAMMAD ALTAF BHAT 2021.03.16 14:56 I attest to the accuracy and integrity of this document