Ramu @ Raman (Died) vs Muthurakku
2023 Latest Caselaw 6916 Mad

                                                                       C.R.P(MD)Nos.1986 and 1987 of 2015


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED : 23.06.2023

                                                  CORAM:

                             THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

                                         C.R.P.(MD)No.1986 of 2015
                                          and M.P(MD)No.2 of 2015
                Ramu @ Raman (Died)
                Subbaiah @ M.K.Ramasamy (Died)
                R.Vallatharasu            ... Petitioner/ Petitioner / 5th Respondent
                                                   Vs.

                1.Muthurakku
                2.Anjalai
                3.Amirthavalli
                4.Palaniammal
                5.Balakrishnan
                6.Balu @ Baluchamy
                7.Thiruvaiya
                8.Ayyavu @ Irulamathu
                9.Subramanian
                10.Balamurugan
                11.Valli
                12.Velu
                13.Shanmugaveli
                14.Shanmugam
                15.Vettal
                16.Subramanian
                17.Irulandi
                18.Rakku
                19.Mariammal
                20.Baladivya
                21.Minor Thirumurgan
                22.Minor Mounika
                23.Minor Jeyamurugan                ... Respondents/Respondents/Petitioners


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https://www.mhc.tn.gov.in/judis
                                                                                 C.R.P(MD)Nos.1986 and 1987 of 2015


                PRAYER: This Civil Revision Petition is filed under Section 115 of Civil
                Procedure Code against the fair and executable order passed by the Subordinate
                Judge, Paramakudi, Ramanathapuram District in I.A.No.95 of 2012 in A.S.No.3 of
                2009 dated 20.06.2014.
                                          For Petitioner     : Mr.V.Srinivasan
                                                           ORDER

This Civil Revision Petition is filed assailing the order passed by the

learned Subordinate Judge, Paramakudi, Ramanathapuram District in I.A.No.95 of

2012 in A.S.No.3 of 2009 dated 20.06.2014. For the sake of convenience, the

parties herein are referred to as arrayed in I.A.No.95 of 2012.

2. I.A.No.95 of 2012 was filed by the petitioners/appellants 2 and 5 under

Section 151 of the Code of Civil Procedure, 1908 seeking to remove the appellants

4, 5, 11, 14, 15 in A.S.No.3 of 2009 on the file of the Subordinate Judge's Court at

Paramakudi, thereby removing their names from the ranking of the appellants 4,

5, 11, 14, 15 in the said appeal. The suit in O.S.No.98 of 2004 on the file of the

District Munsif Court at Paramakudi was filed by one Ramu @ Raman and two

others as against 17 defendants. Among the defendants, one Saravanan was the

17th defendant. The said Saravanan, that is, the 17th defendant was set ex parte

along with the defendants 4, 5, 11, 14, 15 in the suit and thereafter the same was

adjudicated on merits and was finally decreed on merits on 05.09.2008.

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

3. As against the said judgment and decree in O.S.No.98 of 2004, an appeal

in A.S.No.3 of 2009 was filed together by the defendants/the appellants 4, 5, 11,

14, 15 in A.S.No.3 of 2009 on the file of the Subordinate Judge's Court at

Paramakudi. Among the defendants, who preferred the said appeal except 17th

defendant, namely, the defendants 4, 5, 11, 14, 15 contested the original suit on

merits, while the 17th defendant was set ex parte by the Trial Court. The claim of

the petitioner in I.A.No.95 of 2012 in A.S.No.3 of 2009 is that, the person who

were set ex parte in the trial proceedings should not be allowed to prefer an appeal

as an appellant but should be impleaded as one of the respondents. The petitioners

categorically contended that the 17th defendant could not file the said appeal along

with the other appellants, who contested the original suit on merits. Of the total 17

defendants before the original suit except the defendants 4, 5, 11, 14, 15

all the other defendants were arrayed as respondents in the said appeal. Hence, the

petitioners by filing the said I.A in I.A.No.95 of 2012 prayed to declare that the

17th defendant is not entitled to file along with the aforesaid defendants as

appellants.The learned trial Court was pleased to dismiss the said I.A.

4. Heard the learned Counsel for the revision petitioner and the respondents

at length. The learned Counsel for the revision petitioner took me through the

various grounds of the revision petition preferred by him.

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

5. It would be the contention on the side of the respondents before the trial

court that though the 7th respondent / 7th appellant / 17th defendant remained ex

parte in the trial Court, he has every right to file an appeal against the said

judgment and decree and there is no legal embargo for him to be added as an

appellant along with the other appellants. According to them, the petitioner is not

entitled to dictate terms / dictum to him to get impleaded as one of the respondents

instead of the 7th appellant in the said appeal.

6. The learned Counsel for the petitioner further insisted that the only legal

remedy available to the 17th defendant who was set ex parte was to file an

application to set aside the ex parte decree under Order IX, Rule 13 of the Code of

Civil Procedure. He further contended that persons who have failed to set aside

the ex parte decree have no locus standi to file an appeal under Section 96 of the

Code of Civil Procedure.

7. The point to be decided in this case is, whether the 17th defendant who

was set ex parte could prefer an appeal on merits, without setting aside the ex

parte judgment and decree passed as against him. When the ex parte decree is

passed, the remedy available to the 17th defendant, who was set ex parte is to file

an appeal under Section 96(2) of the Code of Civil Procedure, 1908 and to file an

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

application to set aside the ex parte decree in terms of Order IX, Rule 13 of the

Code of Civil Procedure. Order IX, Rule 13 of the Code of Civil Procedure is

extracted as follows:

"13. Setting aside decree ex-parte against defendant.__ 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 that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.] [Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on 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.]"

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

9. The explanation to the above provision makes it clear that, though the

defendant, who is set ex parte can take recourse to both the proceedings of filing

an appeal and to file an application to set aside the ex parte decree simultaneously,

in case the appeal being disposed of at the first instance, then the defendant's

application to set aside the ex parte decree would be subject to the order passed by

the Appellate Court. Thus there is no statutory bar to avail two remedies

simultaneously subject to the above condition. In this case, without preferring to

file an application to set aside the ex parte decree and judgment passed as against

him on 27.02.2004, the 17th defendant has joined hands with the defendants 1, 2,

10, 12, 14 and 16 to file an appeal as against the judgment and decree passed by

the learned trial Court in O.S.No.98 of 2004 as the 7 th appellant in A.S.No.4 of

2009. A right to question the correctness of a decree in a first appeal is a statutory

right and the 7th respondent / 7th appellant / 17th defendant cannot be curtailed from

exercising such a right. The right to file an appeal is not a mere procedural matter

but it is a substantial right.

10. Hence, this Court is of the considered opinion that the 7th respondent/7th

appellant/17th defendant shall not be deprived of his statutory right merely on the

ground that he failed to prefer an application to set aside the ex parate decree

passed as against him under Order IX, Rule 13 of the Code of Civil Procedure,

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

1908. However, it is necessary to make it clear that incase of the dismissal of the

first appeal in A.S.No.3 of 2009 thereafter, the 7th respondent/7th appellant/17th

defendant cannot file an application under Order IX, Rule 13 of the Code of Civil

Procedure.

11. The Hon'ble Apex Court in the case of Bhanu Kumar Jain Vs. Archana

Kumar and Others reported in [MANU/SC/1079/2004] has dealt with a similar

issue. The relevant portion of which is extracted as follows:

"35. However, it appears that in none of the aforementioned cases, the question as regard the right of the defendant to assail the judgment and decree on merit of the suit did not fall for consideration. A right to question the correctness of the decree in a First Appeal is a statutory right. Such a right shall not be curtailed nor any embargo thereupon shall be fixed unless the statute expressly or by necessary implication say so. [See Deepal Girishbhai Soni v. United India Insurance Co. Ltd. MANU/SC/0246/2004 : AIR2004SC2107 and Chandravathi P.K. and Ors., v. C.K. Saji and Ors., MANU/SC/0128/2004].

36. We have, however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.

37. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards 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 against Section 96(2) of the Code on the merit 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. Choudhari that the 'Explanation' appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury (supra), P. Kiran Kumar (supra) and Shyam Sundar Sarma v. Pannalal Jaiswal and Ors., MANU/SC/0944/2004 : 2005(181)ELT163(SC) .

38. We, therefore, are of the opinion that although the judgment of the High Court cannot be sustained on the premise on which the same is based, the Respondents herein are entitled to raise their

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

contentions as regards merit of the plaintiff's case in the said appeal confining their contentions to the materials which are on records of the case."

12. In another case of N.Mohan Vs. R.Madhu reported in

[MANU/SC/1601/2019], the Hon'ble Supreme Court of India has dealt with a

similar issue. The relevant portion of which is extracted as follows:

"13. Considering the scope of Order IX Rule 13 Code of Civil Procedure and the statutory right to appeal under Section 96(2) Code of Civil Procedure, after referring to Bhanu Kumar Jain, in Bhivchandra Shankar More, this Court held as under:

11. It is to be pointed out that the scope of Order 9 Rule 13 Code of Civil Procedure and Section 96(2) Code of Civil Procedure are entirely different. In an application filed Under Order 9 Rule 13 Code of Civil Procedure, the Court has to see whether the summons were duly served or not or whether the Defendant was prevented by any "sufficient cause" from appearing when the suit was called for hearing. If the Court is satisfied that the Defendant was not duly served or that he was prevented for "sufficient cause", the court may set aside the ex parte decree and restore the suit to its original position. In terms of Section 96(2) Code of Civil Procedure, the appeal lies from an original decree passed ex parte. In the regular appeal filed Under Section 96(2) Code of Civil Procedure, the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the Defendant pursued the remedy under Order 9 Rule 13 Code of Civil Procedure, it does not prohibit the

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

Defendant from filing the appeal if his application under Order 9 Rule 13 Code of Civil Procedure is dismissed."..........

16. When the Defendant filed appeal under Section 96(2) Code of Civil Procedure against an ex-parte decree and if the said appeal has been dismissed, thereafter, the Defendant cannot file an application under Order IX Rule 13 Code of Civil Procedure. This is because after the appeal filed under Section 96(2) of the Code has been dismissed, the original decree passed in the suit merges with the decree of the appellate court. Hence, after dismissal of the appeal filed Under Section 96(2) Code of Civil Procedure, the Appellant cannot fall back upon the remedy under Order IX Rule 13 Code of Civil Procedure."

13. In view of the above judgments, this Court is of the considered view that

the argument of the revision petitioner does not hold good and this Civil Revision

Petition is liable to be dismissed. However, I would like to make it clear that the

the 7th respondent/7th appellant/17th defendant would not be permitted to raise any

contention as to the correctness or otherwise of the ex parte decree passed by the

learned District Munsif Court at Paramakudi or as to the existence of the sufficient

case for his non apperance on that particular date before the Trial Court. But it is

his statutory right to argue the first appeal on the merits of the suit so as to enable

him to contend that the materials brought on record by the plaintiffs are not

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

sufficient for passing a decree in their favour.

14. With the above said observation, this Court is inclined to dismiss this

Civil Revision Petition. Accordingly, this Civil Revision Petition stands dismissed.

There shall be no order as to costs. Consequently, connected Miscellaneous

Petition stands closed.

23.06.2023 Index : Yes/No Internet : Yes/No CM/BTR

To

1. The Subordinate Judge, Paramakudi, Ramanathapuram District

2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1986 and 1987 of 2015

L.VICTORIA GOWRI, J.

CM

C.R.P.(MD)No.1986 of 2015 and M.P(MD)No.2 of 2015

23.06.2023

https://www.mhc.tn.gov.in/judis