ORDER
A.K. Parichha, J.
1. This is an appeal challenging the order of learned Additional District Judge, Sonepur in RFA No. 45/45 of 2002-2004 setting aside the ex parte judgment dated 24.08.2002 passed by the learned Civil Judge (Senior Division), Sonepur in T.S. No. 36 of 1999 and remanding the matter to the trial Court for fresh disposal on merit.
2. The appellants as plaintiffs filed the above noted suit for declaration of title, confirmation of possession and the alternative recovery of possession and also for permanent injunction against the defendants. The defendant-respondents did not contest that suit and in consequence ex parte judgment and decree was passed. The respondent-defendants challenged that ex parte judgment in the above noted RFA. Learned first appellate Court held that there was sufficient cause for non-appearance of the defendants on the date of hearing. He also held that the suit should be decided on merit and accordingly set aside the ex parte judgment and remanded the matter to the trial Court.
3. Mr. Siddartha Mishra, learned Counsel appearing for the appellants submits that once an ex parte judgment is passed the proper course for the defendants to set aside such judgment is to file a petition under Order 9 Rule 13, C.P.C. According to him, in an appeal under Section 96(2) of the C.P.C. there is no scope for the appellate Court to examine whether there was sufficient cause for non-appearance of the defendants on the date of hearing as such adjudication requires consideration of plea and evidence led by the parties. He states that the appellate Court can only examine whether the ex parte judgment and decree is sustainable on merits by considering the materials available on record as well as the legal position. In support of his contention, Mr. Mishra relies on the cases of Nagar Palika Nigam Gwalior v. Motilal Munnalal, ; Smt. Maya Devi and Ors. v. Mehria Gram Dall Mill, Hissar and Ors. AIR 1988 P & H 776 and Bhanu Kumar Jain v. Archana Kumar and Anr..
Mr. A.K. Panda, learned Counsel appearing on behalf of Dr. A.K. Rath and associates, who are appearing for the respondents, on the other hand contends that for setting aside the ex parte judgment and decree Order 9, Rule 13, C.P.C. is not the only recourse open for the defendants. According to him, a defendant, for setting an ex parte judgment and decree, may apply under Order 9 Rule 13, C.P.C. or for a review of the judgment under Order 47 Rule 1 or appeal against ex parte judgment and decree under Section 96 of the C.P.C. He states that once an appeal is preferred under Section 96 of the C.P.C. against an ex parte judgment the appellate Court has the power to examine whether there was sufficient ground for non-appearance of the defendant on the date of hearing. In support of his contentions, Mr. Panda relies on the cases of Jananendra Mohan Bhadhury and Anr. v. Prafullananda Goswami and Ors. AIR 1928 Calcutta 812; Prafullamani Del and Anr. v. Sadhu Del and Anr. 1971 (1) C.W.R. 867; Lal Devi and Anr. v. Vaneeta Jain and Ors. and Gangadhar Bhat v. Srikant and Anr. AIR 1981 Karnataka 35.
4. In the present case, admittedly the defendants were set ex parte and they did not file any petition under Order 9 Rule 13, C.P.C. In stead they preferred appeal under Section 96, C.P.C. and in that appeal learned appellate Court held that there was sufficient cause for non-appearance of the defendants on the date of hearing and on that basis remanded the case for fresh disposal. The moot question now is whether the first appellate Court was justified in examining and deciding the sufficiency of cause of non-appearance of the defendants on the date of hearing and remanding the suit. In the case of Nagar Palika Nigam Gwalior (supra) a similar situation was involved. Relying on an earlier observation of a Division Bench in the case of Ramlal v. Rewa Coal Fields Ltd. reported in 1966 M.P. LJ 507 the Bench gave the following observation:
It may be pointed out that no application was filed by the Corporation under Order 9 Rule 13 for setting aside the ex parte decree and only an appeal has been preferred against it. There appears to be a conflict of opinion among various High Courts as to the power of the appellate Court to question the propriety of the ex parte order itself and to remand the case for re-trial. However, we have a Bench decision of our own Court reported in 1966 MPLJ 507, (Ramlal v. Rewa Coal Fields Ltd.) wherein it has been held that an error, defect or irregularity which has affected the decision of the case may be challenged in appeal against the decree whether ex parte or otherwise. The appeal against the ex parte decree under Section 96(2) of the Code of Civil Procedure 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 9, Rule 13, C.P.C. Nor can such an appeal be converted into an appeal under Ordre. 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 it aside, these remedies and none other must be followed. xxx xxx.
5. In our opinion, it is open to a defendant, who has filed an appeal against an ex parte decree under Section 96(2) of the Code, to show from the record as it stands that there is in the order proceeding ex parte against him, any error, defect or irregularity which has affected the decision of the case. If he succeeds in so doing, the ex parte decree will be set aside and the case will be remitted for retrial. But in the appeal against the ex parte decree he cannot be allowed to show that he was prevented by any sufficient cause from appearing at the hearing. For that purpose, he must have recourse to the special procedure under Order 9, Rule 13 of the Code for setting aside the said decree.”
6. In the case of Smt. Maya Devi and Ors. (supra) the Punjab 6 and Haryana High Court also took a similar view. In the case of Bhanu Kumar Jain (supra) though the situation was not exactly similar, yet examining the legal position the apex Court observed as follows:
The dichotomy 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 under 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.
7. In the case of Jananendra Mohan Bhadhury and another (supra) the question was the propriety of the order refusing an adjournment made by the defendant and thereafter the proceeding with the suit ex parte. There learned single Judge observed that in a case in which an ex parte decree has been passed and the aggrieved party has not availed of the remedy by way of an application under Order 9, Rule 13, C.P.C. he is not precluded from raising the question of propriety of the refusal to adjourn his case, in the appeal which he prefers from the ex parte decree itself. It as also observed by learned Single Judge that the Court is legally competent to pass an order of remand under the provisions of Section 151, C.P.C. In the case of Gangadhar Bhat (supra) also the question was the propriety of the refusal of adjournment and passing of the ex parte order. In that case learned Single Judge took a similar view as taken by the learned Single Judge of the Calcutta High Court. In the case of Lal Devi and another (supra) the propriety of the order of the High Court in not interfering with the order of learned District Judge passed on a petition under Order 9, Rule 13, C.P.C. which was not pressed. The legal question and issues involved in that case was some what different and not applicable to the present situation.
8. A cumulative reading of the above noted judgments makes it clear that it is open to a defendant who has filed an appeal against an ex parte decree under Section 96(2),of the Code to show from record as it stands that there is in the order proceeding ex parte against him any error, defect or irregularity which has affected the decision of the case. If he succeeds in doing so the ex parte decree can be set aside and the case can be remitted for retrial, but in such an appeal against ex parte decree, the defendant cannot be allowed to show that he was prevented by sufficient cause from appearing at the hearing. For that purpose he must have recourse to provision under Order 9 Rule 13, C.P.C. for the simple reason that in deciding whether notice had been served on the defendant or the defendants were prevented by sufficient cause from appearing on the date of hearing evidence on factual aspects are to be led by the parties and such evidence are to be perused. Moreover, when specific provision is available under the Code, the same cannot be ignored and extraordinary power of a Court cannot be invoked to grant the relief. Therefore, in an appeal under Section 96, C.P.C. against an ex parte judgment and decree the appellate Court is not permitted to examine the sufficiency of the cause of non-appearance of the defendants on the date of hearing. The appellate Court can however examine the correctness of ex parte judgment on the basis of the materials available on record and also if there was any error, defect, or irregularity which affected the decision of the suit. In the present case, learned first appellate Court did not examine the above noted aspects, but simply held that there was sufficient cause for non-appearance of the defendants on the date of hearing and on that ground remanded the suit for fresh disposal. Such order is against the settled legal norms and is unsustainable.
9. The impugned judgment of the first appellate Court is accordingly set/aside; The matter will go back to the first appellate Court for examining the correctness of the judgment and decree on its own merit and in doing so learned first appellate Court may also take into consideration, any error, defect, irregularity, lack of jurisdiction which might have effected the decision.
With the aforesaid observations, the appeal is allowed on contest. No cost.