JASMINE Vs. MUSLIM EDUCATION AND CULTURAL CENTRE

JUDGEMENT

(1.) The second Defendant in O.S. No. 235/1996 on the file of the Munsiff Court, Varkala is the Appellant. In the above suit, an ex parte decree was granted in favour of the first Respondent/Plaintiff declaring its title and possession over the suit property and also granting an injunction against the Defendants from trespassing upon that property. The Appellant herein along with two other Defendants had challenged that ex parte decree before the Sub Court, Attingal. That appeal was dismissed. Concurrent decision so rendered by the two courts below in favour of the first Respondent/Plaintiff is challenged in the Second Appeal.

(2.) Suit was one for declaration of title, possession and injunction, and also for fixation of boundary over the plaint property having an extent of 53.333 cents in Varkala village. Plaintiff is an association registered under Act 12 of 1955. Plaintiff claimed title over the property under A2 sale deed executed by one Muhammed Iqbal who is stated to have got an assignment over the property from its original owner 8th Defendant. The above said Muhammed Iqbal had filed a suit against the 8th Defendant for fixing the boundary of the property, and a decree was granted in that suit. The Defendants 1 to 7, the wife and children of 8th Defendant, setting up some right over the property are obstructing its possession and enjoyment of the Plaintiff was its case to seek the declaration of title, possession and enjoyment and also for fixation of boundaries. The Defendants 1, 2 and 4 filed a joint written statement and the 7th Defendant, adopted that statement. 8th Defendant filed a separate written statement. Contesting Defendant challenged the claim of the Plaintiff over the suit property setting up rival claim of title over the same. Pendency of some suits with the predecessor of the Plaintiff was also canvassed to impeach the validity of the sale deed over the property executed in its favour. The judgment of the Trial Court reveals that when evidence was recorded in the case, the respective counsel for Defendants 1 and 2 and also 8th Defendant had reported no instruction. On behalf of the Plaintiff, its President was examined as PW1 and A1 to A9 were exhibited towards documentary evidence. The evidence so let in by the Plaintiff remained unchallenged. The Trial Court, after examining the materials with reference to the pleadings rendered a decision in the suit on merits. That decree was challenged by the Defendants 1, 2 and 4 jointly preferring an appeal A.S. No. 59/2002 before the Sub Court, Attingal. The lower Appellate Court, after reappreciating the materials tendered in the case, concurring with the findings of the Trial Court, dismissed that appeal. As against that concurrent decision rendered by the two courts in favour of the Plaintiff, the second Defendant has preferred this appeal.

(3.) Noticing from the judgment rendered by the Trial Court that the disposal of the suit as against Defendants 1 to 7 was rendered after declaring them ex parte, to my query whether any petition had been filed by any of those Defendants under Order 9 Rule 13 of the Code of Civil Procedure to set aside such ex parte passed against them, the learned Counsel for the Appellant conceded that there was such a proceeding at the instance of the first Defendant and that application was dismissed by the Trial Court. Though it is not made clear whether the first Defendant had filed such an application under Order 9 Rule 13 of the Code of Civil Procedure for the other Defendants as well, treating the decree passed as an ex parte decree, it is seen from the judgment rendered by the lower appellate court that above Defendant along with Defendants 2 and 4 preferred the appeal, A.S No. 59/2002 before that court. Admittedly the application under Order 9 Rule 13 of the Code was turned down. So much so, in the given facts of the case, so far as the present Appellants are concerned, their appeal can be looked into and considered only with respect to the challenges against the merit of the ex parte decree passed against them, and not in respect of any ground which was available to them for their absence, which had resulted in passing of an ex parte decree against them. When an ex parte decree is passed against the Defendant, he can seek for setting aside the decree under Order IX Rule 13 showing sufficient cause for his absence on the date of hearing or challenge such a decree by way of a regular appeal as provided by the Code. But where an appeal is preferred challenging the decree on its merits or on any other ground, and such appeal has been dismissed on any ground other than its withdrawal, explanation added to Rule 13 of Order IX of the Code under Act 104 of 1976 clearly spells out that no application under that rule for setting aside the ex parte at the instance of that Defendant will lie. That bar of considering an application for setting aside the ex parte decree where an appeal preferred against such decree has been dismissed 'on any ground other than its withdrawal' is not dependent upon the question whether such appeal against the ex parte decree was before or after the application under Rule 13 of Order IX of the Code. The dismissal of appeal against the ex parte decree otherwise than on the ground of withdrawal interdicts the court which passed such decree in having a decision on its merit over an application under Rule 13 of Order IX of the Code of Civil Procedure, and the application thereof under such circumstance has to be dismissed as not maintainable. However, the dismissal of an application under Rule 13 of Order IX of the code of Civil Procedure will not as such affect the maintainability of an appeal against the ex parte decree. But, if the application under the above Rule had been dismissed, in the appeal against the ex parte decree the Appellant/Defendant will not be allowed to impeach the decree on a ground for showing sufficient cause for his absence at the time of hearing of the case, and, the decree is open to challenge only on its merit, or jurisdiction of the court which had passed such decree.