IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09/04/2002
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
C.R.P.No.2890 of 2001
S.Muthalibu .. Petitioner
-Vs-
A.Govindaswamy Mudaliar .. Respondent
Revision against the order dated 30.4.2001 in C.M.A. No.58 of 1999 on
the file of the learned I Additional Judge, City Civil Court, Chennai, in
pursuance of the order dated 29.9.1997 in I.A.No.1675 of 1997 in O.S.No.6713
of 1994 on the file of the V Assistant Judge, City Civil Court, Chennai.
!For petitioner : Mr.N.Damodaran
^For respondent : Mr.K.Mahesh
:ORDER
The revision petitioner is the second defendant in O.S.No.6713 of 19
94 on the file of the learned V Assistant Judge, City Civil Court, Chennai,
laid for a decree and judgment, directing the revision petitioner/2nd
defendant and the first defendant in the suit to pay a sum of Rs.23,000/- with
interest thereon at 18% per annum from the date of the plaint till the date of
realisation.
2. Even though notice was served on the revision petitioner/second
defendant, directing him to appear before the learned V Assistant Judge, City
Civil Court, Chennai on 21.10.1994, the matter was adjourned to 24.2.1995, on
which date, the revision petitioner was informed that all the cases pending
before the learned V Assistant Judge, City Civil Court, Chennai, were
transferred to various Courts. Therefore, even before he could verify the `A
Diary to appear before the concerned Court, viz., the learned VII Assistant
Judge, City Civil Court, Chennai, the case was called and the revision
petitioner was set ex parte. Hence, he filed an application to set aside the
order dated 24 .2.1995, setting the revision petitioner ex parte; but the same
was confirmed by order dated 25.4.1996 in C.R.P.No.671 of 1995.
3. Thereafter, an ex parte decree was passed against the revision
petitioner on 28.8.1996, which was also confirmed by order dated 30.4.2 001
made in C.M.A.No.58 of 1999 on the file of the learned I Additional Judge,
City Civil Court, Chennai, on the ground that the order, setting the revision
petitioner/2nd defendant ex parte on 24.2.1995 had already been confirmed by
an order dated 25.4.1996. But, admittedly, the ex parte decree made against
the first defendant under Order IX Rule 13 on 28.8.1996 was set aside by order
dated 29.9.1997 in I.A. No.1675 of 1997. Hence, the above revision.
4. Mr.S.V.Jayaraman, learned senior counsel appearing for the
revision petitioner/2nd defendant, placing reliance on the first proviso to
Order IX Rule 13(1), C.P.C., contends that merely setting the revision
petitioner/2nd defendant ex parte by order dated 24.2.1995, made under Order
IX Rule 7, by itself, will not be a res judicata for setting aside the ex
parte decree passed against the revision petitioner on 28.8.1996, particularly
in view of the first proviso to Order IX Rule 13(1). In this regard,
Mr.S.V.Jayaraman, learned senior counsel, places reliance on the decision of
the Apex Court in ARJUN SINGH VS. MOHINDRA KUMAR reported in AIR 1964 SC 993.
5. Per contra, Mr.K.Mahesh, learned counsel appearing for the
respondent, contends that in view of the order dated 25.4.1996 made in
C.R.P.No.671 of 1995, refusing to interfere with the order dated 24.2.199 5,
setting the revision petitioner ex parte, the revision petitioner is not
entitled to seek to set aside the ex parte decree dated 28.8.1 996, as held by
order dated 29.9.1997 in I.A.No.1675 of 1997, by the learned V Assistant
Judge, City Civil Court, Chennai, and confirmed by order dated 30.4.2001 made
in C.M.A.No.58 of 1999 on the file of the learned I Additional Judge, City
Civil Court, Chennai.
6. I have given careful consideration to the submissions of both
sides.
7. In this regard, I am obliged to refer Order IX Rule 7 and Order IX
Rule 13(1), C.P.C., which read as follows:
Order IX Rule 7:
Procedure where defendant appears on day of adjourned hearing and assigns
good cause for previous non-appearance.– Where the Court has adjourned the
hearing of the suit ex parte, and the defendant, at or before such hearing,
appears and assigns good cause for his previous non-appearance, he may, upon
such terms as the Court directs as to costs or otherwise, be heard in answer
to the suit as if he had appeared on the day fixed for his appearance.
Order IX Rule 13(1):
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:(emphasis supplied)
Provided further that 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 be satisfied that the defendant had notice of the
date of hearing in sufficient time to appear and answer the plaintiffs 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.
(2) The provisions of Section 5 of the Indian Limitation Act, 19 08, shall
apply to applications under sub-rule (1). (emphasis supplied)
8. The Apex Court, in ARJUN SINGH VS. MOHINDRA KUMAR reported in AIR
1964 SC 993, while interpreting Section 11, Order IX Rule 7 and Order IX Rule
13, C.P.C., has held as follows:
Scope of the principle of res judicata is not confined to what is contained
in S.11 but is of more general application. Again, res judicata could be as
much applicable to different stages of the same suit as to findings on issues
in different suits. If the court which rendered the first decision was
competent to entertain the suit or other proceeding, and had therefore
competency to decide the issue or matter, the circumstance that it is a
tribunal of exclusive jurisdiction or one from whose decision no appeal lay
would not by themselves negative the finding on the issue by it being res
judicata in later proceedings. Where the principle of res judicata is invoked
in the case of the different stages of proceedings in the same suit, the
nature of the proceedings, the scope of the enquiry which the adjectival law
provides for the decision being reached, as well as the specific provisions
made on matters touching such decision are some of the material and relevant
factors to be considered before the principle is held applicable.
Interlocutory orders are of various kinds; some like orders of stay,
injunction or receiver are designed to preserve the status quo pending the
litigation and to ensure that the parties might not be prejudiced by the
normal delay which the proceedings before the court usually take. They do
not, in that sense, decide in any manner the merits of the controversy in
issue in the suit and do not, of course, put an end to it even in part. Such
orders are certainly capable of being altered or varied by subsequent
applications for the same relief, though normally only on proof of new facts
or new situations which subsequently emerge. As they do not impinge upon the
legal rights of parties to the litigation the principle of res judicata does
not apply to the findings on which these orders are based, though if
applications were made for relief on the same basis after the same has once
been disposed of, the court would be justified in rejecting the same as an
abuse of the process of court. There are other orders which are also
interlocutory, but would fall into a different category. The difference from
the ones just now referred to lies in the fact that they are not directed to
maintaining the status quo, or to preserve the property pending the final
adjudication, but are designed to ensure the just, smooth, orderly and
expeditious disposal of the suit. They are interlocutory in the sence that
they do not decide any matter in issue arising in the suit, nor put an end to
the litigation. The case of an application under O.IX, R.7 Civil P.C. would
be an illustration of this type. If an application made under the provisions
of that rule is dismissed and an appeal were filed against the decree in the
suit in which such application were made, there can be no doubt that the
propriety of the order rejecting the reopening of the proceeding and the
refusal to relegate the party to an earlier stage might be canvassed in the
appeal and dealt with by the appellate Court. In that sense, the refusal of
the court to permit the defendant to set the clock back does not attain
finality. But though the same court is not finally bound by that order at
later stages, so as to preclude its being reconsidered, and even if the rule
of res judicata does not apply it would not follow that on every subsequent
day on which the suit stands adjourned for further hearing, the petition could
be repeated and fresh orders sought on the basis of identical facts. The
principle that repeated applications based on the same facts and seeking the
same reliefs might be disallowed by the court does not however necessarily
rest on the principle of res judicata. Thus if an application for the
adjournment of a suit is rejected, a subsequent application for the same
purpose even if based on the same facts, is not barred on the application of
any rule of res judicata, but would be rejected for the same grounds on which
the original application was refused. The principle underlying the
distinction between the rule of res judicata and a rejection on the ground
that no new facts have been adduced to justify a different order is vital. If
the principle of res judicata is applicable to the decision on a particular
issue of fact, even if fresh facts were placed before the Court, the bar would
continue to operate and preclude a fresh investigation of the issue, whereas
in the other case, on proof of fresh facts, the court would be competent, nay
would be bound to take those into account and make an order conformably to the
facts freshly brought before the court.
9. Therefore, it is well settled, as held in Arjun Singh
case, referred supra that in its essence order under O.9 R.7 is directed to
ensure the orderly conduct of the proceedings by penalising improper
dilatoriness calculated merely to prolong the litigation. It does not put an
end to the litigation nor does it involve the determination of any issue in
controversy in the suit. Besides, it is obvious that the proceeding is of a
very summary nature and this is evident from the fact that as contrasted with
O.IX Rule 9 or O.IX R.16, no appeal is provided against action of the Court
under O.IX, R.7, refusing to set back the clock. It is, therefore, manifest
that the Code proceeds upon the view not imparting any finality to the
determination of any issues of fact on which courts action under that
provision is based, and thus, a decision or direction in an interlocutory
proceeding of the type provided for by O.IX, R.7 is not of the kind which can
operate as res judicata so as to bar the hearing on the merits of an
application under O.IX R.13. The latter is a specific statutory remedy
provided by the Code for the setting aside of ex parte decrees, and it is not
without significance that under O.43 R.1(d) an appeal lies not against orders
setting aside a decree passed ex parte but against orders rejecting such an
application, unmistakeably pointing to the policy of the Code being that
subject to securing due diligence on the part of the parties to the suit, the
Code as far as possible makes provision for decisions in suits after a hearing
afforded to the parties.
10. That apart, in the instant case, admittedly, the ex parte decree
made against the first defendant on 28.8.1996 had been set aside by order
dated 29.9.1997 in I.A.No.1675 of 1997. If that be so, as per the first
proviso to order IX Rule 13(1), the ex parte decree dated 2 8.8.1996 made
against the first defendant as well as the revision petitioner/2nd defendant
cannot be set aside as against the first defendant alone and it has to be set
aside against all or any other defendants also. Therefore, the specific
provision, viz., the first proviso to Order IX Rule 13(1) comes to the aid of
the revision petitioner to set aside the ex parte decree dated 28.8.1996, and
therefore, the ex parte decree dated 28.8.1996 is set aside, and consequently,
the learned I Additional Judge, City Civil Court, Chennai, is directed to take
up the written statement filed by the revision petitioner/2nd defendant on
file, frame the issues, try the suit and dispose of the same on merits within
six months from the date of receipt of a copy of this order.
The revision is ordered accordingly. No costs. C.M.P.No.15438 of 20
01 is closed.
Index: Yes
Internet: Yes
ksv
While passing the final order dated 09.04.2002, setting aside
the ex-parte decree dated 28.08.1996 in the above Civil Revision Petition,
this Court directed the learned First Additional Judge, City Civil Court,
Chennai to take up the written statement filed by the revision petitioner /
second defendant on file, frame the issues, try the suit and dispose of the
same on merits within six months from the date of receipt of a copy of this
order, instead of learned Fifth Assistant Judge, City Civil Court, Chennai.
2. Hence, the matter is posted today for being mentioned to
rectify the factual mistake crept in the above order.
3. There is no objection on behalf of the respondents.
4. Hence, paragraph 10 of the order dated 09.04.2002 is
modified and “learned I Additional Judge, City Civil Court, Chennai” shall be
read as “learned Fifth Assistant Judge, City Civil Court, Chennai”.
5. Registry is directed to carry out the mistake and issue a
fresh order, marking a copy to the Fifth Assistant Judge, City Civil Court,
Chennai, within a period of one week from today.
Dpn/- 11.03.2004