IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 905 of 2010()
1. JASMINE, D/O.SIDDIQUE, JAS VIHAR,
... Petitioner
Vs
1. MUSLIM EDUCATION & CULTURAL CENTRE
... Respondent
2. RUKHIYA BEEVI, W/O.SIDDIQUE,
3. SIRAJ, S/O.SIDDIQUE,
4. NISHA, D/O. SIDDIQUE,
5. ANZAR, S/O.SIDDIQUE,
6. ARSHARD, S/O.SIDDIQUE,
7. SHAKKUTTY, S/O.SIDDIQUE,
8. SIDDIQUE (DIED),
For Petitioner :SRI.B.SURESH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :12/10/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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R.S.A No.905 OF 2010
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Dated this the 12th day of October 2010
JUDGMENT
CR
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
exparte 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 exparte 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,
R.S.A No.905 OF 2010 – 2 –
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.
R.S.A No.905 OF 2010 – 3 –
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 exparte, 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 exparte
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 exparte 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
R.S.A No.905 OF 2010 – 4 –
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 exparte 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
exparte decree against them. When an exparte 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 exparte at the
instance of that defendant will lie. That bar of considering an
application for setting aside the exparte 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 exparte decree was before or
R.S.A No.905 OF 2010 – 5 –
after the application under Rule 13 of Order IX of the Code. The
dismissal of appeal against the exparte 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 exparte
decree. But, if the application under the above Rule had been
dismissed, in the appeal against the exparte 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.
4. The apex court, in “Bhanu Kumar v Archana kumar”
(2005 KHC 72) has considered to what extent and how far the
appeal preferred against an exparte decree could be considered
when the appellant/defendant had moved an application
previously for setting aside that exparte decree under Order 9
R.S.A No.905 OF 2010 – 6 –
Rule 13 of Code of Civil Procedure and it was dismissed. In such a
case, the apex court has held the doctrine of ‘issue estoppel’ and
also ’cause of action estoppel’ may arise. Dilating over that issue
emerging from the dismissal of an application under Order 9 Rule
13 of the Code of Civil Procedure and its impact on the
entertainability of a regular appeal preferred from the decree by
the defendant, the apex court has held thus:
“We have, however, no doubt in our mind that
when an application under O.9, R.13 of the Code is
dismissed, the defendant can only avail a remedy
available there against, viz, to prefer an appeal in terms
of O.43, R.1 of the Code. Once such 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.
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 S.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.”
R.S.A No.905 OF 2010 – 7 –
5. Such being the position of law, in the present appeal the
appellant herein is entitled only to challenge the decree granted
to the plaintiff only on its merit, and that too on the materials
available on the records of the case. The memorandum of appeal
and also the arguments canvassed by the counsel to impeach the
correctness of the exparte decree, it is seen, are built upon the
various contentions raised by the defendants in their written
statements, more particularly, with reference to the previous
litigations which are stated to be still pending and not concluded
so far. I find, the contentions so raised to impeach the
correctness of the exparte decree rendered against the appellant
and in favour of the plaintiff, cannot be canvassed for as the
correctness of such decree has to be tested with reference to the
plaintiff’s case for declaration and materials tendered by them to
claim such decree. The learned counsel for the appellant
contended that in the appeal preferred before the court below, a
number of documents were produced with a petition to receive
them as additional evidence moving an application under Order
41 Rule 27 of the Code of Civil Procedure. The lower appellate
court has not considered that application is the grievance
espoused. Perusing the memorandum of appeal, I find no such
R.S.A No.905 OF 2010 – 8 –
ground has been raised to impeach the judgment of the lower
appellate court other than making a statement to the effect that
before the lower appellate court some documents were produced
for reception as additional evidence.
6. From the statements made in the memorandum of
appeal, it is seen that the first appeal was preferred before the
lower appellate court after considerable delay, ie, more than 900
days. The delay was condoned and then the appeal was disposed
on merits. The exparte decree granted in favour of the plaintiff
is seen challenged mainly on the ground that where the
contesting defendants, including the present appellant, resisted
the suit claims contending that the gift deed executed by the first
defendant in favour of her children 2 to 7 as the power of attorney
of the 8th defendant, transferring the rights of that defendant to
defendants 2 to 7, she was unaware of the cancellation of the
power of attorney and no notice thereof was issued to her, a
burden was cast up on the plaintiff to show that the first
defendant had notice of such cancellation. The plaintiff in the
case, producing a copy of A6 cancellation deed executed by the
8th defendant, has shown that the gift deed executed by the first
defendant in favour of defendants 2 to 7 as the power of attorney
R.S.A No.905 OF 2010 – 9 –
of 8th defendant was after A6 cancellation deed. When that be the
case, burden was on the defendants to substantiate their
contentions raised against the claim of the plaintiff, and not
otherwise. Both the courts have concurrently found that the
plaintiff has established, by the materials tendered, the claim
raised for declaration of its title and possession over the suit
property and injunction against the defendants. Such concurrent
findings entered by the courts below on the materials placed to
grant the exparte decree in favour of the plaintiff upholding its
claim over the suit property is not open to challenge in second
appeal solely on the basis of the contentions raised by the
defendants in their written statement when they have not
substantiated them by any material whatsoever. The appeal
does not involve any question of law leave alone any substantial
question of law for receiving it on file. Appeal is dismissed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
P.A to Judge
vdv