Shri.Mahantesh S/O ... vs Shri.Manjunath S/O Madiwalappa ...
2022 Latest Caselaw 678 Kant

                             1
                                                    R
             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 14TH DAY OF JANUARY, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                M.S.A.NO.100093 OF 2017

BETWEEN:

SRI. MAHANTESH
S/O CHANNABASAPPA NAGANUR,
AGE: 54 YEARS, OCC: BUSINESS & AGRICULTURE,
R/O: BAILHONGAL,
TQ & DIST: BELAGAVI-591 102
                                              ...APPELLANT
(BY SRI.HARISH MAIGUR & SMT.R.M.HIREMATH, ADVS.)

AND:

SRI. MANJUNATH
S/O MADIWALAPPA HOSUR
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: VAKKUND, TAL: BAILHONGAL,
DIST: BELAGAVI - 591 102
                                              ...RESPONDENT
(NOTICE TO RESPONDENT IS HELD SUFFICIENT)

     THIS MSA IS FILED UNDER ORDER XLIII RULE (1)(u) OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY
THE SENIOR CIVIL JUDGE COURT BAILHONGAL (FIRST APPELLATE
COURT) DATED: 01.04.2017 IN R.A.22/2014 ALLOWING THE
APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS MSA COMING ON FOR FURTHER HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                    2



                            JUDGMENT

The captioned Miscellaneous Second Appeal is filed by

the appellant/plaintiff questioning the judgment and decree

passed by the First Appellate Court in R.A.No.22/2014 wherein

the Appellate Court has allowed the appeal and has set aside

the ex-parte decree passed in O.S.No.126/2007.

2. The facts leading to the case are as under:

The appellant/plaintiff filed a suit for specific

performance of contract by specifically contending that the

respondent/defendant has executed agreement of sale for a

total sale consideration of Rs.50,000/- and pursuant to

execution of suit agreement has received earnest money of

Rs.35,000/-. The respondent/defendant remained absent and

was accordingly placed ex-parte.

3. The Trial Court proceeded with the suit and on

examination of the ocular evidence led in by the

appellant/plaintiff and having perused the documentary

evidence answered issue No.1 in the affirmative and decreed

the suit granting discretionary relief of specific performance

and consequently ordered that the respondent/defendant shall

execute registered sale deed in favour of the appellant/plaintiff

by receiving balance sale consideration of Rs.15,000/-.

4. The ex-parte decree passed in O.S.No.126/2007 is

challenged before the Appellate Court under Section 96(2) of

CPC. The Appellate Court instead of examining the

correctness of the judgment and decree under challenge has

adopted a recourse contemplated under the provisions of

Order IX Rule 13 of CPC and has set aside the ex-parte decree

on the ground that summons was addressed to a wrong

address and the respondent/defendant has succeeded in

showing sufficient cause for having failed to contest the

proceedings before the Trial Court. On these set of

reasonings, the Appellate Court has allowed the appeal filed

under Section 96 read with Order XLI Rule 1 of CPC and the

matter is remitted back to the Trial Court to re-hear the

matter afresh after affording opportunity to the parties.

5. It is this remand order passed by the Appellate

Court which is under challenge by the appellant/plaintiff.

6. Learned counsel appearing for the

appellant/plaintiff would vehemently argue and contend before

this Court that the Appellate Court erred in not testing the

reasons and conclusions arrived at by the Trial Court and

therefore, erred in examining the case of the

respondent/defendant as to whether he had a sufficient cause

which prevented the respondent/defendant from appearing

and contesting the suit. To buttress her arguments, she would

place reliance on the judgment rendered by the Hon'ble Apex

Court in the case of N.Mohan vs. R.Madhu1. By placing

reliance on the above said judgment, she would vehemently

argue and contend before this Court that when an ex-parte

decree is passed, it is trite law that defendant has two

AIR 2020 SC 41

remedies. The defendant who has suffered an ex-parte decree

can challenge the judgment and decree on merits under

Section 96 of CPC or he can question the ex-parte decree by

invoking the provisions under Order IX Rule 13 of CPC.

7. Placing reliance on the said judgment, she would

submit to this Court that the respondent/defendant having

failed to take recourse to the provisions of Order IX Rule 13 of

CPC, ought to have only questioned the judgment and decree

of the Trial Court on merits. Therefore, she would submit to

this Court that the Appellate Court has no jurisdiction to

examine as to whether the respondent/defendant was

prevented by any sufficient cause as defendant cannot be

permitted to raise all these contentions as regards correctness

or otherwise of the order posting the suit for ex-parte hearing

by the Trial Court or in regard to existence of sufficient cause

for non-appearance of the defendant before the Trial Court.

On these set of grounds, she would submit to this Court that

the remand order under challenge suffers from perversity and

therefore, warrants interference at the hands of this Court.

8. The respondent is served and unrepresented to

contest the proceedings before this Court.

9. Heard learned counsel appearing for the appellant.

Perused the judgment under challenge and also the principles

laid down by the Hon'ble Apex Court in the judgment cited

supra.

10. Before I advert to the controversy in the present

case on hand, this Court has to examine the scope of enquiry

which is provided to the respondent/defendant, in the event

there is an ex-parte decree. Section 96 of CPC contemplates

and provides a statutory appeal even against an original

decree passed ex-parte. Section 96(1) and (2) reads as

under:

"96. Appeal from original decree.--(1) Save where otherwise expressly provided in the body of this Code

or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte."

11. On plain reading of Section 96 of CPC, it is clearly

evident that first appeal has a valuable right and the parties

have a right to be heard both on questions of law and on facts

and the judgment in the first appeal must address itself to the

issues of law and fact and decide it by giving reasons in

support of the findings.

12. The word 'appeal' has been held to be 'the removal

of a cause from an inferior to a superior Court for the purpose

of testing the soundness of the decision of the inferior Court."

It is trite law that appeal is not an independent proceedings

but it is only a continuation of the original proceedings and it

is a stage in the suit itself. Where an appeal is preferred

under Section 96(2) of CPC, the Appellate Court is precluded

in an appeal against an ex-parte decree from discussing the

propriety of ex-parte order itself apart from the merits of the

case on law and evidence. The appeal filed under Section

96(2) of CPC against the ex-parte decree cannot be converted

into proceedings for setting aside ex-parte decree. The

scheme that is provided under Section 96(2) of CPC read with

Order XLI contemplates that aggrieved party has to argue on

merits and the Appellate Court hearing an appeal under

Section 96 of CPC has to decide on merits of the case.

13. Therefore, the question that would arise in the

present case on hand is, when an appeal is filed by the

respondent/defendant questioning the ex-parte decree under

Section 96(2) of CPC, whether the Appellate Court was

justified in converting it into proceedings for setting aside the

decree when the concomitant duty of affording the parties an

opportunity of adducing evidence for and against any ground

that may be raised in support thereof under Order IX Rule 13

of CPC.

14. It would be useful for this Court to cull out the

provisions of Order IX Rule 13 of CPC with the amended

provisions:

13. Setting aside decree ex parte against defendants.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

[Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had

notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.] [Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]"

15. On perusal of Rule 13, it is clearly evident that in

any case where a decree is passed against the defendant, he

can seek setting aside of ex-parte provided he satisfies the

Court that summons was not duly served or that he was

prevented from any sufficient cause from appearing when the

suit was called on for hearing. Therefore, on reading of Rule

13, it can be inferred that Rule is wide enough to cover several

application to set aside an ex-parte decree provided

defendant's allegation is either that the summons was not duly

served or that the defendant was prevented by sufficient

cause from appearing when the suit was called on for hearing.

Therefore, if the remedies which are available to defendant

either under Section 96(2) of CPC or under Order IX Rule 13

of CPC are examined, it is quite clear that the remedies

available to the defendant in the event there is an ex-parte

decree are totally on a different footing and both the remedies

provided under Section 96(2) of CPC and the one provided

under Order IX Rule 13 of CPC are based on totally different

criteria. The remedy that is available to the defendant under

Order IX Rule 13 of CPC has to be initiated before the very

Court which has proceeded to pass an ex-parte decree.

16. The words in Order IX Rule 13 of CPC are

imperative and if either of these conditions are satisfied, the

Court is bound to set aside the ex-parte decree. While setting

aside the ex-parte decree under Order IX Rule 13, factors to

be considered are not confined to finding as to sufficiency of

reasons for non-appearance. The Court has to also find out

the totality of situation including the defect in its own

procedure. Therefore, the intent of legislature in providing

additional remedy under Order IX Rule 13 of CPC cannot be

usurped by the Appellate Court which is hearing an appeal

under Section 96(2) of CPC.

17. When an appeal is preferred under Section 96(2) of

CPC, the Appellate Court has to independently assess the

material on record and pass judgment on merits. While

hearing an appeal under Section 96(2) of CPC, the Appellate

Court is also required to adhere to the procedure

contemplated under Section 99 of CPC as well as the

procedure under Order XLI Rules 30 and 31 of CPC. If a

decision is correct on merits and the judgment and decree

passed by the Trial Court is within the jurisdiction of the Trial

Court, the same should not be upset on technical or

immaterial defects. Section 99 of CPC clearly confers

discretion upon the Appellate Court not to reverse or modify a

decree for any error or irregularity not affecting the merits of

the case or jurisdiction. Unless there is an error, defect or

irregularity of procedure which virtually affects the merits of

the case, the Appellate Court hearing an appeal under Section

96(2) cannot upset the judgment and decree of the Trial Court

merely on the ground that there are mere irregularity which

do not affect the merits of the case.

18. Now let me examine the judgment and decree

passed by the First Appellate Court. The reasons assigned by

the Appellate Court in setting aside the ex-parte decree and

remanding for denovo trial can be found at paragraphs 16 and

17 of the judgment under challenge. The Appellate Court

without examining the merits of the suit has virtually adopted

the procedure provided under Order IX Rule 13 of CPC.

Therefore, I am of the view that the judgment and decree

passed by the Appellate Court by invoking the provisions of

Order IX Rule 13 of CPC is one without jurisdiction. I am of the

view that the entire procedure which is adopted by the

Appellate Court in an appeal under Section 96(2) of CPC

stands vitiated. Paragraph 17 of the judgment under

challenge reads as follows:

"17. The sole defence of the appellant/defendant is that, purposefully the plaintiff/Respondent in order to get the exparte decree, he has given wrong address, thus contended that, he was not aware about the suit filed by the plaintiff/Respondent. Even the Respondent-plaintiff has not stepped into the witness box to denied the averments made in affidavit to I.A.I, except cross-examine the PW-1. Smt. S.G.C. vehemently argued that, vested right of the plaintiff/Respondent is taken away, if the appeal is allowed. The Respondent/plaintiff has not produced any documents what is the stage of execution proceedings, whether he has taken sale deed or not and in pursuance of sale deed by filing miscellaneous he has taken possession of the suit property or not has not been demonstrated. If such thing has been established before the Court, definitely the court could have understood the contention of the Respondent/plaintiff. Merely there is a delay of 6 years and odd appeal of the plaintiff/Respondent cannot be dismissed, because he has all along contended that, only when he has verified the revenue records, he came to know the judgment and decree passed by the lower court. The defendant/appellant has shown the sufficient cause, because the summons issued to the defendant, where the defendant is not permanent resident. In fact, as per the registered agreement to sell, the defendant is the permanent resident of Vakkund village, no summons was issued to that address. Under such circumstances, it can infer that summons was not duly served. Even there is no evidence, the wife of the defendant has intimated the same to her husband. In a several rulings of Hon'ble Supreme Court and High Court, if the sufficient cause is shown, delay can be condoned. The learned counsel appearing for the appellant has pressed into the service of reported ruling of Hon'ble Supreme

Court reported in 1987 SC 1353 in the matter of Collector Land Acquisition Anantnag and Anr V/s Mr. Kkatiji and Ors, wherein Hon'ble Supreme Court has given following principles and also hold that, such a application has to be construed liberally. Those principles are as under:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. When not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in justice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of

culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize justice on technical grounds but because it is capable of removing injustice and is expected to do so.

The said ruling is aptly applicable to the case on hand, because the plaintiff/Respondent has given the address of father-in-law's house, at Tadakod village Dharwad District, though the defendant is the permanent resident of Vakkund village, Belagavi District. For this, the plaintiff has not assigned reason, therefore the defendant/appellant has no occasion to contest the suit filed by the plaintiff. Further because of the decree there is no vested right vest with the plaintiff and in this regard, no material is produced. No doubt, there is substantial delay in filing the appeal, that can be compensated by imposing some costs. Accordingly, I.A.No.I filed by the appellant/defendant U/O 41 Rule 3-A of C.P.C. R/w sec. 5 of Limitation Act is hereby allowed on costs of Rs.3000/-, accordingly point under reference answered in the Affirmative."

19. If the reasons assigned by the Appellate Court at

paragraph 17 are examined, this Court is of the view that

there is a substantial error and defect in the procedure

adopted by the Appellate Court while deciding an appeal under

Section 96(2) of CPC. The Appellate Court has not

adjudicated the case on merits but has proceeded to set aside

the ex-parte decree on the ground that summons was not duly

served on the respondent/defendant. The Appellate Court

while hearing an appeal under Section 96(2) of CPC was

bound by the procedure and scheme provided under Section

96(2) of CPC and therefore, the judgment under challenge is

not decided in terms of Section 96(2) of CPC and the Rules

contained therein. Therefore, I am of the view that the

judgment and decree of the First Appellate Court is not

sustainable since it suffers from serious error and defect

relating to procedure adopted by the Appellate Court. It is

clearly evident from the judgment under challenge that the

defect in procedure is substantial and has virtually affected the

decision of the case on merits. What the Appellate Court has

virtually lost sight of is that there is a gulf of difference in the

procedure provided under Section 96(2) and under Order IX

Rule 13 of CPC. There are several implications and

consequences when the rights of the parties are adjudicated

under Section 96(2) of CPC and under Order IX Rule 13 of

CPC.

20. The Hon'ble Apex Court in the judgment cited by

the learned counsel for the appellant/plaintiff in the case of

N.Mohan vs. R.Madhu (supra) has held that the defendant

against whom an ex-parte decree is passed has two options.

The first is to file an appeal and the second is to file an

application under Order IX Rule 13 of CPC. It is quite

interesting to note that the defendant can have recourse to

both the remedies simultaneously. In the judgment cited

supra, the Hon'ble Apex Court was of the view that if an

application is filed under Order IX Rule 13 of CPC, that would

not take away the right of an appeal which is provided under

Section 96(2) of CPC. The Hon'ble Apex Court was of the view

that even if an application filed under Order IX Rule 13 of CPC

is rejected, that would not take away the right of an appeal

which is available to the defendant under Section 96(2) of

CPC. The Hon'ble Apex Court reiterating the principles laid

down in the case of Deepal Girishbhai Soni vs. United

India Insurance Company Limited2, held that the right of

an appeal is a statutory right and that the litigant cannot be

deprived of such right.

21. Therefore, on perusal of the principles laid down by

the Hon'ble Apex Court in the judgment cited supra, what

emerges is that even if an application under Order IX Rule 13

of CPC is rejected, the remedy available to the defendant

under Section 96(2) of CPC is not taken away. But the

converse may not be true. If the defendant avails both the

remedies simultaneously and if the appeal filed under Section

96(2) of CPC is dismissed, then the proceedings under Order

IX Rule 13 of CPC for setting aside the ex-parte decree would

not survive for consideration. The reason is that the decree of

the Trial Court becomes superseded or merged with that of

(2004) 5 SCC 385

the Appellate Court. Therefore, as long as the defendant's

appeal under Section 96(2) of CPC is pending, he can pursue

his remedy under Order IX Rule 13 of CPC. It goes without

saying that if the miscellaneous application is rejected by the

Trial Court which has passed ex-parte decree, he still has a

further remedy by way of an appeal before the Superior Court.

But, however, this remedy is subject to the outcome of the

appeal under Section 96(2) of CPC.

22. Therefore, what can be inferred from the above

said two schemes is that as long as the Appellate Court does

not decide the correctness of the judgment and decree passed

by the Trial Court, the remedy under Order IX Rule 13 of CPC

continues to exist. But, however, the moment the appeal

under Section 96(2) of CPC is decided, the right, if any, under

Order IX Rule 13 of CPC stands lost forthwith.

23. Now coming to the present case on hand, the

Appellate Court has failed to note that when an ex-parte

decree is challenged under Section 96(2) of CPC, the

respondent/defendant could not have raised a contention

regarding correctness or otherwise of the order posting the

suit for ex-parte hearing and consequently could not have

raised any ground questioning the ex-parte decree on the

ground that summons were not served on him. The first

appellate court has presumed that respondent/defendant is

permanent resident of Vakkund and therefore, the temporary

address shown at Tadkod is an incorrect address. Therefore,

the first appellate court has come to the conclusion that

summons was not at all served on the defendant. The first

appellate court has gone to the extent of recording a finding

that summons was served on the wife of the

respondent/defendant does not indicate that she has intimated

her husband in regard to service of summons on defendant.

24. It is this finding of the first appellate court which

goes against the spirit and object of remedies contemplated

under Section 96(2) of CPC and Order IX Rule 13 of CPC.

There is absolutely no legal impediment for the defendant to

question an ex-parte decree under Section 96(2) of CPC or

avail a remedy under Order IX Rule 13 of CPC. Though

remedies are concurrent, but their scope is entirely different.

What the first appellate court has totally lost sight of is that

the two remedies provided against an ex-parte decree are in

respect of two different situations and are to be resorted to, if

facts of the situations are available to the litigant. If the

respondent/defendant has opted to prefer an appeal under

Section 96(2) of CPC, the first appellate court cannot examine

the conditions enumerated under Order IX Rule 13 of CPC. In

a first appeal under Section 96(2) of CPC, the defendant on

merits of the suit can contend that the materials brought on

record by the plaintiff were not sufficient for passing a decree

in his favour. The Hon'ble Apex Court in the case of Bhanu

Kumar Jain Vs Archana Kumar and Another3 at paragraph

38 held as follows:

(2005) 1 SCC 787

"38. The dichotomy, in our opinion, can be resolved by

holding that whereas the defendant would not be permitted

to raise a contention as regard the correctness or otherwise

of the order posting the suit for ex parte hearing by the trial

court and/or existence of a sufficient case for non-

appearance of the defendant before it, it would be open to

him to argue in the first appeal filed by him under Section

96(2) of the Code on the merits of the suit so as to enable

him to contend that the materials brought on record by the

plaintiffs were not sufficient for passing a decree in his

favour or the suit was otherwise not maintainable. Lack of

jurisdiction of the court can also be a possible plea in such an

appeal. We, however, agree with Mr.Chaudhari that the

"Explanation" appended to Order 9 Rule 13 of the Code shall

receive a strict construction as as held by this court in Rani

Choudhury, P.Kiran Kmar and Shyam Sundar Sarma

v.Pannalal Jaiswal."

25. On reading of paragraph 38 of the judgment cited

supra, it is clearly evident that defendant cannot be permitted

to raise a contention as regards the correctness or otherwise

of the order posting the suit for ex-parte hearing. But

however, it would be open to him to argue in the first appeal

questioning the findings recorded by the trial court on merits.

What can be inferred is, even in the absence of defence,

defendant can make out a case before the first appellate court

that the materials placed on record by plaintiff are not

sufficient enough to grant reliefs as sought by the plaintiff.

26. The principles laid down by the Hon'ble Apex Court

in the judgment cited supra are followed in an subsequent

judgment rendered by the Hon'ble Apex Court in N.Mohan

(supra). The Apex Court re-iterating the principles has infact

culled-out relevant paragraph 38, which is cited supra.

Therefore, on meticulous reading of the principles laid down by

the Apex Court in the judgment cited supra, it can be inferred

without any doubt that the first appellate court while

entertaining an appeal under Section 96(2) of CPC, cannot

examine the correctness of the order posting the case for ex-

parte hearing. Further, the first appellate court under Section

96(2) of CPC, also cannot venture into examining whether

defendant had sufficient and cogent reasons for having failed

to contest the suit on the date fixed for hearing. The Hon'ble

Apex Court in the case of Bhanu Kumar Jain (supra), has

clearly held that the conditions in Clause (a) and (b) of Order

IX Rule 13 of CPC cannot be raised in the first appeal against

an ex-parte decree under Section 96(2) of CPC. If the

defendant cannot raise the said contention, conversely the

first appellate court while examining an appeal under Section

96(2) of CPC also cannot examine the conditions stipulated

under Order IX Rule 13 of CPC. The explanation appended to

Order IX Rule 13 of the Code shall receive a strict construction

as was held by Apex Court in Rani Choudhary Vs

Lt.Col.Suraj Jit Choudhary4 and Shyam Sundar Sarma Vs

Pannalal Jaiswal and Others5. The judgment rendered by the

Apex Court in the case of Rani Choudhary (supra) and

Shyam Sundar (Supra) though were dealing with doctrine

of merger of decree of a trial court consequent to disposal of

(1982) 2 SCC 596

(2005) 1 SCC 436

the appeal by the first appellate court, what emerges from the

principles laid down by the Apex Court in the two judgments

cited supra is that defendant has two options. In the case of

Rani Choudhary (supra) the Apex Court has referred to the

remedy available to the defendant to file an application before

trial court under Order IX Rule 13 of CPC seeking setting aside

the decree. The doctrine of merger in the event appeal is

decided under Section 96(2) is also explained and the scope of

explanation to Rule 13 of Order IX of CPC was also interpreted

and a view was taken by the Apex Court that doctrine of

merger was enormously extended by introduction of

explanation to Rule 13 of Order IX and therefore, where an

appeal under Section 96(2) was dismissed for default or it

stood abated on account of death of a party, the Apex Court

while interpreting explanation to Rule 13 was of the view that

trial court decree would merge with the appellate decree.

Though these judgments do not deal with the scope of enquiry

under Section 96(2) and Order IX Rule 13, but, however, on

meticulous examination of the principles laid down by the

Apex Court in the judgments cited supra, it can be inferred

that when a remedy is sought to challenge the order passed

by the trial court posting the defendant as ex-parte, the said

remedy has to be invoked before the court of first instance

which placed defendant ex-parte. Though remedies provided

under the Code does not confine defendant to single course of

action, but however, defendant cannot be permitted to raise

the grounds available under sub-clause (a) and (b) of Order IX

Rule 13 under Section 96(2) as held by the Hon'ble Apex

Court in Bhanu Kumar Jain (supra).

27. Remedy of Order IX Rule 13 of CPC should be

always availed before the court of first instance which passed

an ex-parte order. In the present case on hand, the trial court

records clearly indicate that summons was duly served on the

wife of the respondent/defendant. Therefore, even otherwise,

the finding of the first appellate court that summons was duly

served on respondent/defendant is perverse and palpably

erroneous. If the respondent/defendant had any grievance in

regard to due service of summons and if he seriously disputes,

then he ought to have initiated proceedings under Order IX

Rule 13 of CPC before the court at the first instance. The

material on record would clearly indicate that summons was

served on the wife of respondent/defendant and therefore,

there is due compliance of Order V Rule 15 of CPC. Prior to

1956 amendment, the summons was always required to be

served either on the defendant or on the male members of the

family. By way of 1976 amendment, the same is substituted

and now service may be on adult member of defendant's

family. Admittedly, the summons was served on

respondent/defendant's wife. Therefore, a presumption would

arise that summons was duly served on

respondent/defendant. Even if respondent/defendant were to

deny and place some evidence and if presumption is refuted,

in that event, the burden shifts on the plaintiff to prove due

service by leading evidence. There is absolutely no material

placed on record by respondent/defendant that no honest

attempt was made to personally serve on the defendant at his

residential address and therefore, service on the family

member cannot be held as sufficient service. It is a trite law

that in view of amendment to Rule 15 of Order V of CPC,

service effected on the wife of the defendant is sufficient

service. In the present case on hand, the summons was

served on the wife of respondent/defendant and it is not his

case that he is not residing with his wife. No materials are

placed along with the application by the respondent/defendant

to prima facie demonstrate that he was not residing in the

address furnished by the appellant/plaintiff. All these

significant details and relevant factors have to be gone into

and examined by the court of first instance which passed ex-

parte decree under the provisions of Order IX Rule 13 of CPC.

If the summons which is served by the process server which

has been tendered on respondent/defendant's wife bears the

signature of the wife of the respondent/defendant and the

order sheet also indicates that summons was served on the

wife of the respondent/defendant.

28. The first appellate court has not examined the

sufficiency of service on the wife of respondent/defendant.

More      emphasis     is    laid    down     on   the         fact   that

respondent/defendant's        permanent      residence    is     Vakkund

village of Bailhongal taluk, whereas is summons is sought to

be served at Tadkod, which happens to be the residence of

father-in-law of respondent/defendant herein. Service on wife

of the respondent/defendant is not examined in terms of

Order V Rule 15 of CPC. The ex-parte judgment and decree is

sought to be challenged in a very casual manner.

29. Conclusions:

(i) If defendant is questioning the correctness of the

order posting the case for ex-parte hearing and

consequentially raises several contentions indicating that he

was not served with summons, the said contentions have to

be raised in a petition filed under Order IX Rule 13 before the

court of first instance who has passed the order of posting the

case for ex-parte hearing and consequentially has passed an

ex-parte decree. In view of the principles laid down by the

Apex Court in Bhanu Kumar Jain (supra), the conditions

enumerated under clause (a) and (b) of Order IX Rule 13 of

CPC cannot be raised in a first appeal against the ex-parte

decree under Section 96(2) of CPC.

(ii) In an appeal under Section 96(2), the defendant on

merits of suit can contend that the material brought on record

by the plaintiff were not sufficient for passing a decree in his

favour, which necessarily presupposes that defendant even in

the absence of defence or rebuttal evidence can still argue

that evidence available on record is not sufficient to grant any

reliefs to the plaintiff.

(iii) The principles laid down by the Apex Court in the

case of Bhanu Kumar Jain (supra), clearly indicate that

defendant cannot be permitted to raise contention as regard

to correctness or otherwise of order posting the suit ex-parte

hearing; conversely can be inferred that appellate court also

cannot examine the existence of sufficient case for non-

appearance of the defendant in an appeal filed under Section

96(2) and has to only confine its adjudication on merits.

(iv) There is no legal impediment in filing the appeal

against the ex-parte decree. Though remedies under Order IX

Rule 13 and Section 96(2) are concurrent but their scope is

entirely different. The two remedies provided against ex-parte

decree are in respect of two different situations and can be

resorted to only if the facts of the situations are available to

litigant.

(v) If the there is denial of service by defendant, the

presumption raised under Section 27 of the General Clauses

Act on the basis of expression 'may presume' stands refuted

and burden would shift upon the plaintiff to prove due service

by leading evidence and also by examining the process server

and this exercise has to be done before the court of first

instance which has proceeded to place the defendant ex-parte

and consequentially ex-parte decree is passed.

(vi) An enquiry under Rule 13 of Order IX necessarily

involves adducing of evidence either to show that summons

was not duly served or that he was prevented from appearing

by any sufficient cause. The correctness of an order under that

provision can be considered by appellate court in an appeal

under Order XLIII Rule 1(d) of the Code. The petition to set

aside ex-parte decree is a less expensive remedy than an

appeal for which court fee on the subject matter of the appeal

has to be paid.

(vii) An error, defect or irregularity which has affected

the decision of the case may be challenged in an appeal

against the decree whether ex parte or otherwise. But an

appeal against the ex parte decree under Section 96(2) CPC

cannot be converted into proceedings for setting aside the

decree with the concomitant duty of affording to the parties an

opportunity of adducing evidence for and against any ground

that may be raised in support thereof under Order IX Rule 13,

CPC. Nor can such an appeal be converted into an appeal

under Order XLIII Rule 1(d), CPC. The reason is that when a

particular remedy is provided for setting aside an ex parte

decree and there is, by way of appeal, another special remedy

against an order refusing to set aside, these remedies and

none other must be followed.

30. Therefore, this court is of the view that the

judgment and decree passed by the first appellate court in

setting aside the ex-parte decree is palpably erroneous and

there is an error in the procedure adopted by the first

appellate court. Therefore, the miscellaneous second appeal

has to succeed and the remand order passed by the first

appellate court is liable to be set aside, as the same is not at

all sustainable.

For the foregoing reasons, I pass the following:

ORDER

The Miscellaneous Second Appeal is allowed. The

judgment and decree dated 01.04.2017 passed in

R.A.No.22/2014 by the First Appellate Court is set aside. The

Appellate Court is directed to hear the matter on merits after

affording an opportunity of hearing to both the parties.

Sd/-

JUDGE

CA