JUDGMENT
P.R. Raman, J.
1. Revision petitioners are the plaintiffs. The suit is one for injunction against trespass.
Defendants are brothers and adjacent property owners.
2. The first respondent herein who was the second defendant in the suit was
declared ex parte on 12.7.1995. but other defendants contested the suit. It was
thereafter that on 1.11.1999 defendant Nos. 3 and 4 were called absent and ex parte,
and a decree was passed in terms of the plaint against all the defendants. Subsequently,
defendants 3 and 4 filed an application to set aside the ex parte decree. The second
defendant, however, did not file any separate application, though he was made a
respondent in the said application filed by defendants 3 and 4. The lower court, after
considering the matter, eventually, set aside the ex parte decree. Thereupon, the first
respondent herein, namely, the second defendant in the suit filed I.A. 1800 of 2001
under Sections 148 and 151 of the Code of Civil Procedure seeking leave of the court to file
written statement. The lower court allowed the said application and the written
statement was received on file. It is against that order that the present revision is filed
by the plaintiffs.
3. It is seen from the judgment that the name of the first defendant was struck
off as per Order in I.A. 949/1995 dated 7.8.1999. The second defendant being called
absent, he was set ex parte and since the advocate for defendants 3 and 4 being
absent and defendants 3 and 4 also being called absent and set ex parte a common
judgment was rendered in O.S. 21 of 1995 and 94 of 1995. But actually 2nd defendant
was declared ex parte even prior to that as noticed earlier. Though there were four
defendants in O.S. 21 of 1995 there was only one defendant in O.S. 94 of 1995. As
the suit was one for permanent injunction restraining the defendants from trespassing
into the plaint schedule property and from interfering in any manner with the plaintiffs’
peaceful possession, as per order in I.A. 1345 of 1999 dated 10.9.1999, joint trial of
both the suits were ordered. As a matter of fact, plaintiffs’ evidence closed and DW1
was examined and it is for cross examination of DW1 that the case was posted to
1.11.1999 as disclosed in the order passed later in I.A. 1811/1999 setting aside
the ex parte decree. Documents were also marked on either side. On 1.11.1999
defendants 3 and 4 were also set ex parte and a decree was passed.
4. A Copy of the decree was furnished to me by the learned counsel appearing
for the revision petitioner. The operative portion of the same reads as follows:
“This suit is coming on this day for final hearing before me in the presence of Sri. N.M.
Kuttikrishnan and Smt. K.T. Indu, advocates for the plaintiffs and 1st defendant’s name struck
off, the 2nd defendant being called absent and set ex parte and on Smt. T. Girija advocate for
the defendants 3 and 4 being, absent, the defendants, 3 and 4 also being called absent, set ex parte
the court both order and decree:
1) That the defendant and their men be restrained by a permanent injunction from
trespassing into the plaint schedule property and from interfering in any manner with
plaintiff’s peaceful possession and enjoyment of the property that:
2) The defendants do pay plaintiffs a sum of Rs. 445/- being the cost of the suit”.
The above is the decree in O.S. 21 of 1995. Subsequently, interlocutory applications
for setting aside the decree were filed as I.A. Nos. 1811 of 1999 in O.S. 21 of 1995
and 1813 of 1999 in O.S. 94 of 1995 by K.C. Sebastian and K.C. Ephram as petitioners
and Nanu, P.V. Gopinathan and K.C. Joseph as respondents. In the interlocutory
application filed in O.s. 94 of 1995, Biju Sebastian is the petitioner and Nanu and
Gopinathan are the respondents.
5. In this case, we are concerned only with O.S. 21 of 1995. From the cause title
of the parties contained in the application, it can be seen that K.C. Joseph- the first
respondent herein and who is the second defendant in the suit O.S. 21 of 1995 was the
third respondent in that petition. Admittedly, he did not figure as the petitioner in
I.A. 1811 of 1999 referred to above. By a common order, both the interlocutory
applications were disposed of and set aside the ex parte decree. It was stated in that
application that the third defendant was already examined as DW1 and according to
the petitioners therein by the time their counsel reached the court, they were declared
ex parte recording their absence. It was their case that they came late to the court
due to the road block on their way and there was no wilful default on their part in not
appearing in court in time and therefore,t he decree passed on 1.11.1999 has to be set
aside. the court found that both the petitions were filed on 1.11.1999 itself and DW1
and their counsel were late by 40 minutes due to the road block. In the absence of any
contrary evidence, the case put forward by the petitioners therein that they came late
due to road block was accepted by the court and the fact that they have filed the
petition on 1.11.1999 itself was further found to be a supporting fact probalising their
case and finally, after directing to pay a cost of Rs. 250/- to the respondents together,
the petition to set aside the ex parte decree was allowed.
6. It was thereafter that I.A. 1800 of 2001 was filed by the first respondent
herein (second defendant in the suit) wherein both the plaintiffs and defendants 3 and 4
were shown as respondents. The petition was field seeking leave to receive the
written statement of the second defendant. In the impugned order passed thereon,
the court below found that the second defendant was ex parte in the suit previously.
It was observed that :
“The second defendant was ex parte in the suit previously. He has appeared before this
court in 1999 itself in the petition to set aside ex parte decree. No proper explanation was given
for not filing written statement hitherto. The suit is put in the special list for trial today. But I
feel that the 2nd defendant also to be permitted to contest the case in the interest of justice.”
Considering the delay, the court ordered a cost of Rs. 1,000/-.
7. The main contention advanced by the counsel for the petitioner is that in the
absence of any separate application filed by the first respondent herein to set aside the
ex parte decree passed as against him, the lower court was not justified in law in
allowing him to file written statement and the order is therefore liable to be set aside.
It is his further case that under Order 9 Rule 13 CPC. When an ex parte decree is passed
against the defendant he may apply to the court by which the decree was passed, for
setting aside the same. If he satisfies 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. Thus, according to him, when the second defendant
and defendants 3 and 4 were all set ex parte and admittedly, when only defendants 3
and 4 had applied invoking Order 9 Rule 13 CPC stating the reason as to why they were
absent on the day on which the case was posted and the court having set aside
the ex parte decree in their application, it cannot be said that the decree was set aside
in toto as against all the defendants, but only as against defendant Nos. 3 and 4 who
alone filed the application under Order 9, Rule 13 CPC. On the other hand, learned counsel
for the first respondent submits that he was one of the respondents in the petition filed
by defendants 3 and 4 seeking to set aside the ex parte decree and the prayer in the
application filed by them was to set aside the ex parte decree and the court having set
aside the ex parte decree without specifying that the same was set aside only as
against eh petitioners therein, namely, defendants 3 and 4, it has to be understood that
the decree stands set aside and therefore there is no decree as against the first
respondent also. According to him, once the decree is set aside without specifying
that the same was set aside as against the parties who applied for it, it must be presumed
that the ex parte decree is set aside as against all.
8. It is an admitted case that the first respondent was set ex parte in 1995 itself.
Thereafter, the suit was contested only by defendants 3 and 4 defendant Nos. 3 and 4
were also set ex parte on 1.11.1999, the name of the first defendant having been
struck off even earlier (even though in the decree name of second defendant is also
referred to as having been declared ex parte). The ex parte decree was passed on
that day, ie., on 1.11.1999. Only defendants 3 and 4 applied under Order 9 Rule 13 for
setting aside the ex parte order. It was after considering the reason put forth by them
that the decree was set aside. In other words, the second defendant was absent and
what prevented him from not appearing in court was not known to the court. The
second defendant did not choose to file any application explaining the circumstances
either. As per Order 9 Rule 13, when an ex parte decree is passed against a defendant that
defendant is given the right to apply to the court by showing that he was prevented by
sufficient cause from appearing, to get the ex parte decree set aside. Therefore,
when there are more than one defendant, there may be sufficient reasons for non
appearance in the case of some but need not be so with all of them. Hence unless
each one of them satisfies the court that he was prevented by any sufficient reason
from appearing in court, the fact that any one of them had good cause cannot enure to
the benefit of others who did not show such good cause which prevented them from
appearing before the court on the fixed day. Therefore, when an application is filed by
defendants 3 and 4 only and they have put forth the reason before the court for their
absence on the day on which the ex parte decree was passed, the court having
considered that reason and having set aside the ex parte decree passed, it cannot be
understood as an order setting aside an ex parte decree against all the defendants.
9. It is true that the first proviso to Order 9 Rule 13 is to the effect 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. This proviso is an
exception to the main provision. The main provision obliges the defendant to apply to
the court where an ex parte decree is passed against him to set aside the same on
satisfying the court that he was prevented by sufficient cause for the non appearance.
But as per the proviso, even if any other defendant or defendants had not applied
separately, if the nature of the decree is such that it cannot be set aside as against
such defendant, only then it enables the court to set aside the decree against other
defendants also who have not applied to the court under Order 9 Rule 13. The proviso being
an exception, the court has to apply its mind, examine the nature of the decree and
then only it can pass an order setting aside the ex parte decree as against the others
as well, because the court has to see whether the nature of the decree is such that it
cannot be set aside as against such the defendants only who applied for the same.
There is nothing to indicate in the decree that the court exercised its powers under the
proviso. In the absence of anything to show that the court had exercised the powers
under the proviso which is an exception to the general rule, it cannot be presumed that
the decree has been set aside against all the defendants. Further, there is nothing to
indicate that the court has considered as to whether the nature of the decree was such
that it cannot be set aside against these defendants alone who applied for it.
10. From the above discussion, it can be seen that there is nothing to indicate in
the order setting aside the ex parte decree that the same was set aside as against all
including the first respondent herein. In the absence it can only be presumed that the
decree is set aside as against defendants 3 and 4 who alone applied under Order 9 Rule 13
CPC by showing sufficient cause as to what prevented them from appearing before
the court on the appointed day. The being the position, in the absence of an order
setting aside the ex parte decree passed against the first respondent herein, it was not
legally possible to permit him to file a written statement or grant him leave for
filing the same.
11. Defendants 3 and 4 have filed their written statements. The plaintiff’s evidence
was over. DW.1, the third defendant was already examined on the side of the
defendants. It was thereafter that the decree was passed ex parte as against the 3rd
and 4th defendants. On the other hand, the first respondent, namely, the second
defendant did not even file a written statement in the case. He did not even apply to
set aside the ex parte decree passed against him. There is nothing in the order setting
aside the ex parte decree that the court has exercised the power under the first
proviso to Order 9 Rule 13. Hence the decree having been set aside only as against
defendants 3 and 4, the decree passed as against the first respondent (second defendant)
cannot be presumed to have been set aside by the court below. Technically, therefore,
the second defendant has to apply before the Court below to set aside the ex parte
decree passed as against him also. So long as there is a decree passed ex parte
against the second defendant, the court cannot permit him to file written statement.
12. In the light of what is stated above, the order impugned is set aside. The
matter is remitted to the trial court for a fresh consideration in accordance with law.
The first respondent herein is free to submit an application before the court below for
setting aside the ex parte decree passed against him. The petitioner herein shall file
his objection, if any, within a period of ten days of receipt of a copy of such petition
filed by the first respondent. If he files such an application within a period of two
weeks from the date of receipt of a copy of this order, the same shall be considered
and disposed of by the court below, in accordance with law, along with the application
for seeking leave to file the written statement, as expeditiously as possible, at any rate,
within a period of one month thereafter.
13. The Civil Revision Petition is disposed of as above. In the circumstances, there
will be no order as to costs.
