Decided on June 19,2003



- (1.) THE plaintiff in O. S. No. 766 of 1995 on the file of the Additional Sub Court, Irinjalakuda is the petitioner in this Original petition. THE petitioner filed the suit for recovery of money. THE respondent-defendant though appeared in the court below did not file a written statement. So he was set ex parte under 0. 9 R. 6 of the Code of Civil Procedure. Subsequently the suit was also decreed ex parte. THE respondent filed a petition under 0. 9 R. 13 for setting aside the ex parte decree. THE trial court found that the respondent had failed to show any sufficient cause for his non-appearance on the date on which the suit was posted for filing the written statement. So the petition was dismissed. THE respondent filed C. M. A. No. 106 of 1999 before this Court challenging that order. THE C. M. A. was also dismissed. THE defendant filed A. S. No. 572 of 1999 before this Court challenging the ex parte decree passed in the suit. A Division Bench of this Court considered the matter on its merits and found that the trial court failed to set out the facts in the judgment and then proceeded to give the reasons for the conclusion. This Court set aside the judgment and decree passed by the Court below and remanded the matter to the trial court. THE operative portion of the order reads as follows: "we therefore remit the matter to the court below for fresh consideration. THE parties to appear before the court below on 5. 11. 2001. "
(2.) A reading of the judgment of the Division Bench makes it clear that when the Division Bench set aside the judgment and decree passed by the court below and remanded the case for fresh consideration, the plaintiff and defendant were directed to appear before the Court below. According to the petitioner in view of the order of dismissal passed in the petition filed under 0. 9 R. 13 to set aside the decree, the defendant cannot be allowed to file a written statement. At best, he can be allowed to cross examine the witness of the plaintiff and argue the case. The learned counsel appearing for the petitioner relied on the decisions reported in Ram Lal v. Kali Prasad (AIR 1929 Patna 609)and Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425 ). In Sangram singh's case (supra) the Supreme Court considered the effect of an order passed under 0. 9 R. 6 (1) (a) of the Code of Civil Procedure. It is well settled position of law that when an order is passed in a petition filed under 0. 9 R. 6 the defendant cannot be relegated to the position he would have been as if he had appeared in the first posting. But when the appellate court set aside the judgment an ex parte decree passed by the trial court in appeal and remand the case whether the defendant is entitled to file the written statement was not a question which arose for consideration before the Supreme Court. In Ram Lal's case (supra) also the Court was considering the effect of an ex parte decree passed. In a proceeding under 0. 9 R. 13 of the Code of Civil Procedure, the court need only consider whether the defendant has shown sufficient cause for his non-appearance on the date on which the case was posted for trial. The court need not consider whether the decree passed in the case is correct or not. If the defendant is able to establish that he was prevented by sufficient cause the decree has to be set aside. In this connection the Explanation to the proviso to 0. 9 R. 13 of the Code of Civil Procedure is relevant, which states that if a defendant has filed an appeal and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, the petition filed under 0. 9 R. 13 is not maintainable. So if the decree passed by the trial court is confirmed by the lower appellate court, the petition to set aside the decree passed by the trial court is not maintainable. It is well settled position of law that a defendant who unsuccessfully prosecuted a petition under 0. 9 R. 13 for setting aside the ex parte decree is not precluded from filing an appeal against the decree itself. But in such cases he is not entitled to again canvass the position that the trial court ought to have set aside the ex parte decree. In fact before the amendment of S. 96 in the year 1976, there was conflict of decision as to whether an appeal is maintainable against an ex parte decree. But in view of the provisions contained in sub-s. (2) of S. 96, it is clear that an appeal will lie from the original decree passed ex parte. The scope of the appeal in such a case was limited and the appellate court cannot reconsider the reasons for the absence of the defendant but it can only consider the legality of the decree based on law and the evidence on record. If there are sufficient materials on record to hold that the decree passed is unsustainable, the appellate court may set aside the same and either pass a decree by itself or remand the case to the trial court for fresh disposal.
(3.) THE crucial question arising for consideration in this o. P is what exactly is the effect of the remand order passed by the appellate court in such cases. When the appellate court decides to remand the case, that remand order is governed by the provisions of O. 41 R. 23 or 23a. R. 23 contained in the present Code deals with remand on a preliminary point. R. 23a deals with remand in other cases. THEre was conflict of opinion with regard to the scope of remand under R. 23 prior to amendment in the year 1976. In Kerala R. 23 was amended with effect from 9. 6. 1959 and in view of the amended provision the appellate court can remand the case if it considers it necessary in the interest of justice to remand the case. In Jethalal Girdhar v. Varailal Bhaishankar (AIR 1922 bombay 267) it was held that the appellate court has the power to remand the case for retrial. The principle in the above decision was followed in Jnanendra v. Profullananda (AIR 1928 Calcutta 812 ). In Perumal v. Pandaram (AIR 1951 TC 26), a Division Bench of the Travancore Cochin High Court considered the effect of order of remand. It was held as follows:- "when a decree is set aside and the case remanded to the lower court all the contentions between the parties are before the court and it is open for the trial court to go into all the issues arising on such contentions. In Marthandan v. Kochummini (81 TLJ 181) it was observed that when the appellate Court exercises its power of remand, and orders a de novo trial, there was no rule which compelled it to accept certain findings recorded by the court below, merely because no objection has been filed against them. The whole case was held to have been reopened so that the trial court was quite competent to go into all those matters. Thus though there were some findings in the first judgment in the trial court in favour of the plaintiff on certain issues, these findings are to be taken to have been set aside when the decree was reversed and a denovo trial was ordered. " In Kaluram v. Mehtab Bai (AIR 1959 M. P. 181) it was held as follows: "an order of remand implies reversal of the decision of the lower Court and reopens the whole case for retrial by the original Court except in regard to matters expressly or impliedly decided by the order of remand. " In Santan Mohapatra v. Hakim Mohammad (AIR 1977 Orissa 194) it was held as follows:- "the effect of the remand order is that the suit is relegated to the stage of trial where trial has commenced but is not concluded. The direction for a fresh disposal obviously means a direction to dispose of the suit in accordance with law. In absence of any specific direction in the remit order prohibiting amendment sought for by any party to the suit, it is open to such parties to seek for amendment of their pleadings and, in each such case, it will be for the Court to deal with it on merits in accordance with judicial principles". It is well settled position of law that the appellate court while remanding the suit can order denovo trial and unless there is a finding on any of the issues settled by the appellate court itself it is not open to the plaintiff to contend that the defendant can argue the merits of the case with reference to the averments in the plaint alone and he cannot be allowed to file the written statement. If the case is remanded for denovo trial, the entire case is reopened. Thereafter the suit is governed by the provisions regarding the trial. If the defendant has not filed a written statement, it is open to the trial court to permit him to file a written statement unless there is statutory bar. It is to be noted that the case at hand was filed prior to the latest amendment of 0. 8 R. 1 and no outer time limit is fixed for filing the written statement. Since the suit was instituted prior to 1. 7. 2002 the effect of the amendment need not be considered in this case. So if the case was adjourned as per the request of the defendant for filing the written statement, the matter is governed by the provisions contained in 0. 17. So there is no merit in the contention raised by the petitioner that the trial court has no power of jurisdiction to permit the defendant to file the written statement.;

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